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HomeMy WebLinkAboutVA200800003 Application 2008-03-12 Application for "`�Y`►+ Variance R ` Q ariance= $120 Project Name: u i►y1A 1.�)fc- 0 _ •F-,k).) • ?Aisrotit 'A2 Tax map and parcel: /0 1(--7 Magisterial District: 2.1,0 OA Zoning: S[,(.D ni Physical Street Address(if assigned): 0/AA /ZOOS D 1 Z4ri gr--4.1.34(ss i --17 Location of property(landmarks,intersections,or other): Contact Person(Who should we call/write concerning this project?): Address 2.0. 5 / 7 2 City04c4,677644(46- State Zip 1: 2 Daytime Phone Alf j/vJ 4S4Fax# ) (� r /S 14 E-mail Owner of Record f0-3,-\ /Lop Address PO(T3 bb)L pr..) City ,x% ) tale V�•- ZipI?O2 Daytime Phone ry 94'1 Fax#( ) E-mail Applicant(Who is the Contact person representing?): Address City State Zip Daytime Phone 4140 co 5 C7'Fax#( ) E-mail De0-), (47- c) Sett. I VA-2008-003 (Sign # 21) Pantops Park LLC (owner) /Virginia National Bank (applicant) Applicant requests variance to erect three wall signs at 54, 57 & 58 feet in height instead of 30 feet, a variance of 24, 27 & 28 feet. Property is located at 1241 Richmond Road on the south side of Rt. 250 East, just east of Riverbend Drive. TM 78, Parcel 16, zoned Entrance Corridor and Neighborhood Model District. [FOR OFFICE USE ONLY VA#03ae-0V_3ORDINANCE SECTION# SIGN# at/ Fee Amount$ °e) Date Patd3-18•Og By who?S hQYva- V Receipt# LA$1-{7 Ck# 750/ By 9 r-r k;4- az-- County of Albemarle Department of Community Development 401 McIntire Road Charlottesville, VA 22902 Voice: (434)296-5832 Fax: (434) 972-4126 5/1/06 Page 1 of2 r The following information shall be submitted with the application and is to be provided by the applicant: 1) Recorded plat or boundary survey of the property requested for the rezoning. If there is no recorded plat or boundary survey,please provide legal description of the property and the Deed Book and page number or Plat Book and page number. 2) The appropriate drawings showing all existing and proposed improvements on the property,with all dimensions and distances to property lines,and any special conditions on the property that may justify the request. 3) Fee payable to the County of Albemarle. 4) Description of Request(include dimensions,measurements or sizes in feet): 5) Justification shall be based on these three(3)criteria: 1. That the strict application of this ordinance would produce undue hardship. 2. That such hardship is not shared generally by other properties in the same zoning district and the same vicinity. 3. That the authorization of such variance will not be of substantial detriment to adjacent property and that the character of the district will not be changed by the granting of the variance. Owner/Applicant Must Read and Sign The application may be deferred by the staff or the Board of Zoning Appeals, if sufficient information necessary to this review has not been submitted by the deadline. I hereby certify that the information provided on this application and accompanying information is accurate,true and correct to the best of my knowle ge and b ef. 3i z/ofr Signature of wne , ontract Purchaser, Agent Date Print Name Daytime phone number of Signatory 5/1/06 Page 2 of 2 Virginia National Bank—Pantops Park 1241 Richmond Road TM 78-16 ZMA 2005-08 ARB#2005-141 Stoneking/von Storch Architects Deedbook: Deedbook 1962 page 106 DB 1227 page 069 (plat) DB 611 page 141 (plat) DB 1137 page 270(VDOT) DB 1179 page 006(VDOT) State Hwy Plat Book 71 page 216 Description of request: The owner wishes to install three company logos on their building at approximately 57 feet above the main (entry) level. Zoning ordinance does not allow wall mounted signs above 30 feet. Justification: We are not claiming a hardship in the typical sense. That is, the building is visible and other signage opportunities allowed by ordinance are available. Rather we have two primary observations that suggest this variance is appropriate. First we seek to establish an understanding that would apply to all Neighborhood Model projects in this particular entry corridor. Secondly we feel these logos may be viewed differently than conventional signage. Neighborhood Model: The County vision for this area follows the Neighborhood Model ideal. We had the property rezoned in order to comply with that future vision. This notion promotes the placement of buildings near the road with parking concealed to the side or rear yards. Four to five story buildings are depicted in the County renderings used to explain the vision. When this future is realized many taller buildings will be in close proximity and lower level signage may not be adequate as views will be limited. A time will come when the placement of wall signs at higher elevations will have to be considered. Limiting size and type for higher signage is best done in advance of future applications. Logos vs. Signs: The three logos signs in question (shown on the attached elevation drawings) differ from standard signs as they contain no words. These simple logos are more decorative elements rather than signage. Perhaps this precedent is good for the County. Establishing it now will allow for strict enforcement of a "no-word", "no lighting" policy for such signs in the future. The character of the area is not diminished by these logos. Making them of bronze anodized aluminum is consistent with the architecture of the building and they suggest a dignified, restrained manner of handling such items. C g01 K , V o-n • OPERATING AGREEMENT OF PANTOPS PARK, LLC THIS OPERATING AGREEMENT, dated as of August 19, 2005, by and among the undersigned members of PANTOPS PARK, LLC, a Virginia limited liability company (the "Company"), provides as follows: RECITALS: The undersigned parties have caused the Company to be organized as a limited liability company under the laws of the Commonwealth of Virginia effective as of the date Articles of Organization have been accepted for filing by the Virginia State Corporation Commission,and they wish to enter into this Operating Agreement in order to set forth the terms and conditions on which the management, business and financial affairs of the Company shall be conducted AGREEMENT: NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises, covenants and conditions herein contained, the receipt and sufficiency of which are hereby acknowledged, the parties do hereby covenant and agree as follows: I DEFINITIONS A. The following terms used in this Operating Agreement shall have the following meanings (unless otherwise expressly provided herein): 1. "Act"shall mean the Virginia Limited Liability Company Act,Va Code Ann. § 13 1-1000 et seq., as amended and in force from time to time. 2. "Articles"shall mean the articles of organization of the Company,as amended and in force from time to time. 3 "Bankruptcy" shall mean, and a Member shall be deemed a "Bankrupt Member" upon (i) the entry of a decree or order for relief against the Member by a court of competent junsdiction in any involuntary case brought against the Member under any bankruptcy, insolvency or other similar law(collectively, "Debtor Relief Laws") generally affecting the rights of creditors and relief of debtors now or hereafter in effect, (ii) the appointment of a receiver, liquidator, assignee, custodian, trustee, sequestrator or other similar agent under applicable Debtor Pantops Park,LLC/Org/Pantops Park OA 10-28-05 1 • r ! 1 ' Relief Laws for the Member or for any substantial part of its assets or property,(iii)the ordenng of the winding up or liquidation of the Member's affairs by a court of competent jurisdiction, (iv)the filing of a petition in any such involuntary bankruptcy case,which petition remains undismissed for a period of 180 days or which is not dismissed or suspended pursuant to Section 305 of the Federal Bankruptcy Code(or any corresponding provision of any future United States bankruptcy law),(v) the commencement by the Member of a voluntary case under any applicable Debtor Relief Law now or hereafter in effect, (vi) the consent by the Member to the entry of an order for relief in an involuntary case under any such law or to the appointment of or the taking of possession by a receiver, liquidator, assignee, trustee, custodian, sequestrator, or other similar agent under any applicable debtor relief laws for the Member or for any substantial part of its assets or property, or (vii) the making by a Member of any general assignment for the benefit of its creditors 4 "Capital Account"shall mean as of any given date the amount calculated and maintained by the Company for each Member as provided in Section VI.A hereof. 5. "Capital Contribution" shall mean the total value of cash and agreed market value of any contribution to the capital of the Company by a Member whether made in cash, property or services,or a binding obligation to contribute cash,property or services,whenever made Additional contributions to capital may only be made by a Member with the consent of a majority of the other Members. "Initial Capital Contribution"shall mean the initial contribution to the capital of the Company by a Member, as determined pursuant to Section III.C. hereof. 6. "Code" shall mean the Internal Revenue Code of 1986 or corresponding provisions of subsequent superseding federal revenue laws. 7. "Company" shall refer to PANTOPS PARK, LLC. 8 "Company Minimum Gain" shall have the meaning set forth in Treasury Regulations Section 1.704-2(d). In accordance with Treasury Regulations Section 1 704-2(d),the amount of Company Minimum Gain is determined by first computing,for each nonrecourse liability of the Company, any gain the Company would realize if it disposed of the property subject to that liability for no consideration other than full satisfaction of the liability, and then aggregating the separately computed gains. A Member's share of Company Minimum Gain shall be determined in accordance with Treasury Regulations Section 1.704-2(g)(1). 9. "Entity" shall mean any general partnership, limited partnership, limited liability company, limited liability partnership, corporation, joint venture, trust, business trust, cooperative or other association. 10. "Majority" (in uppercase or lowercase) shall be determined by reference to the relative number of outstanding Shares owned by the Members of the Company, meaning that any time a vote or consent of the majonty of Members is required, any combination of Members owning at least fifty-one percent(51%)of all the outstanding Shares of the Company shall constitute a majority. Similarly, when specific reference in context is made to a majority of remaining Pantops Perk,LLC/Org/Pentops Perk OA 10-2B-05 2 Members or some other subset of Members, a majority shall be any combination of such remaining Members owning at least fifty-one percent (51%) of the remaining outstanding Shares of the Company(i.e ,determined without regard to the Membership Interest owned by the Option Member upon the occurrence of an Option Event as described in Article VIII.D.)shall constitute a majority of remaining Members. 11 "Manager" shall mean a manager of the Company,whose rights,powers and duties are specified in Article V hereof 12. "Member" shall mean each Person that is identified as an initial Member in Exhibit A attached hereto or is admitted as a Member (either as a transferee of Shares or as an additional Member) as provided in Article VIII. hereof. A Person shall cease to be a Member at such time as he no longer owns any Shares. 13. "Member Nonrecourse Debt Minimum Gain"shall have the meaning set forth in Treasury Regulations Section 1.704-2(1) A Member's share of Member Nonrecourse Debt Minimum Gain shall be determined in accordance with Treasury Regulations Section 1.704-2(i)(5). 14 "Membership Interest" shall mean the ownership interest of a Member in the Company expressed as a number of Shares. The relative percentage Membership Interest of a Member can be determined by dividing the number of outstanding Shares that such Member owns by the total number of outstanding Shares of the Company. The initial Membership Interests (denominated in Shares)of the initial Members are set forth on Exhibit A attached to this Operating Agreement 15. "Operating Agreement" shall mean this Operating Agreement, as originally executed and as amended from time to time. 16 "Person" shall mean any natural person or Entity, and the heirs, executors, administrators, legal representatives, successors, and assigns of such Person where the context so perm'ts 17 "Shares" shall refer to the numerical ownership of a Member's Membership Interest in the Company, to be measured in such units as may be established pursuant to Section III F hereof The ownership percentage of a Member may be determined by dividing the number of outstanding Shares owned by a Member by the total of all Shares outstanding. 18. "Treasury Regulations"shall mean the Treasury regulations issued under the Code, as amended and as hereafter amended from time to time. Reference to any particular provision of the Treasury Regulations shall mean that provision of the Treasury Regulations on the date hereof and any successor provision of the Treasury Regulations. Pentops Perk,LLC/Org/Pentops Perk OA 10-28-05 3 II PURPOSES AND POWERS OF COMPANY A Purposes. The purposes of the Company shall be to. 1 Own, acquire, manage, develop, operate, buy, sell, exchange, finance, refinance, and otherwise deal with real estate and related personal property, and any related business, as the Managers may from time to time deem to be in the best interests of the Company, and 2 Acquire, own, buy, sell, invest in, trade, manage, finance, refinance, exchange, or otherwise dispose of stocks, securities, partnership interests, CDs, mutual funds, commodities, and any and all investments whatsoever, that the Managers may from time to time deem to be in the best interests of the Company; 3 Engage in such other activities as are related or incidental to the foregoing purposes B. Powers. The Company shall have all powers and rights of a limited liability company organized under the Act,to the extent such powers and rights are not proscribed by the Articles. C Competition. During the existence of the Company,the Manager(s)shall devote such time to the business of the Company as may reasonably be required to conduct its business in an efficient and profitable manner The Members and the Manager(s), for their own account and for the account of others, may engage in business ventures, including the acquisition of real estate properties or interests therein and the development, operation, management and/or syndication of real estate properties, any other businesses or any interests therein, which may compete with the business of the Company. Each Member hereby expressly consents to the continued and future ownership and operation by the other Members or the Managers of such properties and waives any claim for damages or otherwise, or nghts to participate therein or with respect to the operation and profits or losses thereof. III INITIAL MEMBERS: PRINCIPAL OFFICE. CONTRIBUTIONS: ISSUANCE OF SHARES A. Names and Addresses of Initial Members. The names and addresses of the initial Members, their respective addresses, and their respective Shares (Membership Interests) in the Company are set forth on Exhibit A which is attached hereto and made a part hereof by this reference B Pnncipal Office. The pnncipal office of the Company shall initially be at 400 E Main St, Suite 1, Charlottesville,Virginia 22902. The principal office may be changed from time to time by the Managers Pantops Parts,LLC/OrgiPantops Park OA 10-28-05 4 C Initial Capital Contributions. Each Member, upon the execution of this Operating Agreement, shall make as an initial Capital Contribution the amount shown on Exhibit A attached hereto The initial Capital Contribution to be made by any Person who hereafter is admitted as a Member and acquires his Shares of the Company from the Company shall be determined by the Members D Additional Capital Contributions.Admission of New Members. Preemptive Rights 1 Additional Capital Contributions. No Member shall be required to make any Capital Contribution in addition to his Initial Capital Contribution However, the Company may seek additional Capital Contributions to the Company through the issuance by the Company of any of its authorized but unissued Shares upon the approval of the Manager or a majority of the Members. The Manager shall make a good faith determination that amount or value of the additional Capital Contribution to be received for the number of Shares to be issued is adequate,fair and appropriate The fair market value of any property other than cash or widely traded securities to be contributed as an additional Capital Contribution shall be(i) agreed upon by the contributing Member and a majority of the Members before contribution, or (ii) determined by a disinterested appraiser selected by the Manager. 2. Issuance of Shares to New Member. A new Member may be admitted to membership in the Company through the issuance by the Company of any of its authorized but unissued Shares, directly to such new Member upon the approval of the Manager. The issuance of Shares to a new Member may be authorized by the Manager upon his good faith determination that the consideration to be received for the Shares is adequate. Shares may be issued in return for the new Member's contribution of cash, property, services rendered or a promissory note or other binding obligations to constitute cash or property or to perform services. If the services are not performed,the benefits are not received or the note is not paid,the Shares may be canceled in whole or in part The admission of a new Member to the Company shall be evidenced by a writing signed by Manager or other officer authorized by the Manager and the new Member, and such writing shall set forth(a)the Shares to be held by such new Member and(b)the new Member's agreement to be bound by, and to take his Shares subject to, the terms and conditions of this Operating Agreement as same applies to all Members and their respective Shares at such time and as may be amended in the future. E Interest and Return of Capital Contribution. No Member shall receive any interest on his Capital Contribution Except as otherwise specifically provided for herein,the Members shall not be allowed to withdraw or have refunded any Capital Contribution. F Shares Representative of Membership Interests. The Membership Interests in the Company shall be denominated in Shares. Initially and until the same may be altered by a written amendment to this Operating Agreement, there shall be a total of 1,000 available Shares which are authorized to be issued. At the inception of the Company, all 1,000 Shares listed on Exhibit A attached hereto shall be the only outstanding and issued Shares which shall represent all of the Membership Interests in the Company Pantops Paris,LLC/Org/Pantops Park OA 10-28-05 5 G Certificates for Membership Interests. The Shares of a Member in the Company may be represented by a Certificate of Membership. The exact contents of a Certificate of Membership shall be determined by the Members from time to time. IV VOTING,POWERS, MEETINGS, ETC. OF MEMBERS A In General. The Members shall not be entitled to participate in the day-to-day affairs and management of the Company, but instead,the Members'right to vote or otherwise participate with respect to matters relating to the Company shall be limited to those matters as to which the express terms of the Act,the Articles or this Operating Agreement vest in the Members the nght to so vote or otherwise participate. B Actions Requiring Approval of Members. 1 Notwithstanding any other provision of this Operating Agreement, the approval of at least two-thirds (2/3) of the Members shall be required to amend the Articles of Organization of the Company. 2. Notwithstanding any other provision of this Operating Agreement, the approval of at least two-thirds (2/3) of the Members shall be required in order for any of the following actions to be taken on behalf of the Company: a Amending the Operating Agreement in any manner. b. Taking any action which would make it impossible to carry on the ordinary business of the Company. c. The sale of more than one-half(1/2)of the assets of the Company(by fair market value). d. Filing or consenting to filing a petition for or against the Company under any Bankruptcy law or Debtor Relief Law. e. Loaning Company funds to any Member. 3 Notwithstanding any other provision of this Operating Agreement, the approval of a majority of the Members shall be required in order for any of the following actions to he taken on behalf of the Company. a. Submission of claim of the Company to arbitration which is reasonably expected to be in excess of$5,000 b. Confessing a judgment against the Company in excess of$5,000 Pantops Park,LLC/Org/Pantops Park OA 10-28-05 6 c. The sale of more than ten percent(10%)of the assets of the Company (by fair market value)outside the normal course of business of the Company. d Electing one or more Managers as provided in Article V hereof 4 Unless the express terms of this Operating Agreement specifically provide otherwise,the affirmative vote of the Members holding a majonty of the Shares shall be necessary and sufficient in order to approve or consent to any other matters: (i)that require the approval or consent of the Members, or (ii) which are not required to be voted on by the Members but are nonetheless voted upon by the Members in their discretion C Action by Members In exercising their rights as provided above or as they otherwise choose to act even though not required to do so hereunder, the Members shall act collectively through meetings and/or written consents as provided in this Article. D Member Meetings. Meetings of the Members, for any purpose or purposes, unless otherwise prescribed by statute,may be called by the Managers,and shall be called by the Managers at the request of any two Members, or such lesser number of Members as are Members of the Company E. Place of Meeting. The place of any meeting of the Members shall be the pnncipal office of the Company,unless another place,either within or outside the Commonwealth of V trginia, is designated by the Managers. F Notice of Meetings. Written notice stating the place,day and hour of any meeting of the Members and, if a special meeting,the purpose or purposes for which the meeting is called, shall be delivered not less than ten(10)nor more than sixty(60)days before the date of the meeting, either personally or by U S mail, overnight delivery service, or facsimile,by or at the direction of the Managers, to each Member, unless the Act or the Articles require different notice If delivered by electronic mail or facsimile, then written confirmation of transmission must be attached to the notice. G Conduct of Meetings. All meetings of the Members shall be presided over by a chairperson of the meeting,who shall be a Manager,or a Member designated by the Managers. The chairperson of any meeting of the Members shall determine the order of business and the procedure at the meeting,including regulation of the manner of voting and the conduct of discussion,and shall appoint a secretary of such meeting to take minutes thereof. H Participation by Telephone or Similar Communications. Members may participate and hold a meeting by means of conference telephone or similar communications equipment by means of which all Members participating can hear and be heard, and such participation shall constitute attendance and presence in person at such meeting Pantops Park,LLC/Org/Pantops Pak OA 10-28-05 7 I Waiver of Notice. When any notice of a meeting of the Members is required to be given,a waiver thereof in writing signed by a Member entitled to such notice,whether given before, at, or after the time of the meeting as stated in such notice, shall be equivalent to the proper giving of such notice. Presence in person or proxy at a meeting without immediate objection to notice shall be deemed to be a waiver of notice. J Action by Written Consent. Any action required or permitted to be taken at a meeting of Members may be taken without a meeting if one or more written consents to such action are signed by the Members who are entitled to vote on the matter set forth in the consents and who constitute the requisite number or percentage of such Members necessary for adoption or approval of such matter on behalf of the Company. By way of example and not limitation, the Members holding a majonty of the Shares may take action as to any matter specified in Section IV.B.3.hereof by signing one or more written consents approving such action, without obtaining signed written consents from any other Members. Such consent or consents shall be filed with the minutes of the meetings of the Members. Action taken under this Section shall be effective when the requisite Members have signed the consent or consents, unless the consent or consents specify a different effective date. V. MANAGERS A. Powers of Manager. Except as expressly provided otherwise in the Act,the Articles or this Operating Agreement(specifically including those matters set forth in Sections IV.B.2. and IV.B 3. hereof),the powers of the Company shall be exercised by or under the authority of, and the business and affairs of the Company shall be managed by, one or more Managers. The powers so exercised shall include but not be limited to the following: 1. Entering into, making and performing contracts, agreements and other undertakings binding the Company that may be necessary, appropriate or advisable in furtherance of the purposes of the Company. 2. Opening and maintaining bank accounts, investment accounts and other arrangements, drawing checks and other orders for the payment of money, and designating individuals with authority to sign or give instructions with respect to those accounts and arrangements. Company funds shall not be commingled with funds from other sources and shall be used solely for the business of the Company. 3. Collecting funds due to the Company. 4 Acgwnng,utilizing for the Company's purposes, maintaining and disposing of any assets of the Company. 5 To the extent that funds of the Company are available therefor,paying debts and obligations of the Company. Pantops Perk,LLC/Org/Pantops Perk OA 10-28-05 8 6 Borrowing money or otherwise committing the credit of the Company in the ordinary course of the Company's business activities,granting liens or secunty interests in assets of the Company to secure such borrowings, and voluntarily prepaying or extending any such borrowings 7 Employing from time to time persons,firms or corporations for the operation and management of various aspects of the Company's business, including, without limitation, managing agents,contractors,subcontractors,architects,engineers,laborers,suppliers,accountants and attorneys on such terms and for such compensation as the Managers shall determine, notwithstanding the fact that the Managers or any Member may have a financial interest in such firms or corporations 8 Making elections available to the Company under the Code 9. Registenng the Company as a tax shelter with the Secretary of the Treasury and furnishing to such Secretary lists of investors in the Company,if required pursuant to applicable provisions of the Code. 10 Obtaining general liability, property and other insurance for the Company, as the Managers deem proper. 11 Taking such actions as may be authonzed and directed by the Members in furtherance of their approval of any matter set forth in Section IV.B.3 hereof. 12 Doing and performing all such things and executing, acknowledging and delivering any and all such instruments as may be in furtherance of the Company's purposes and necessary and appropnate to the conduct of its business. B Election of Managers, Action by Managers. 1 The Members hereby unanimously el the initial Manager of the Company, to serve until his successor(s) shall be duly elected and qualified 2 The Members shall elect one or more Persons as Managers at a meeting of the Company called for such purpose to serve until their respective successors are duly elected and qualified. In addition, if any Person resigns or otherwise vacates the office of Manager, the Members shall elect a replacement Manager to serve until their respective successors are duly elected and qualified, unless one or more other Persons then serve as Managers and the Members determine not to fill such vacancy. A Person may be removed as a Manager by the Members with or without cause at any time A Manager need not be a Member. A Manager may be a natural person or an Entity C Single Manager If at any time there is only one Person serving as a Manager, such Manager shall be entitled to exercise all powers of the Managers set forth in this Section, and all Pantops Parts,LLC/OrglPantops Paris CA 10-28-05 9 references in this Section and otherwise in this Operating Agreement to"Managers"shall be deemed to refer to such single Manager D Action by Two or More Managers. Unless otherwise expressly provided by the Act, the Articles, or the terms of this Operating Agreement, at any time there are two or more Managers serving the Company, the vote, approval or consent of a majority of the Managers, determined on a per capita basis, shall be necessary and sufficient for the Managers to take any action on behalf of the Company that the Managers are authonzed to take pursuant to the Act, the Articles or this Operating Agreement. E Execution of Documents and Other Actions. The Managers may delegate to one or more of their number the authority to execute any documents or take any other actions deemed necessary or desirable in furtherance of any action that they have authorized on behalf of the Company as provided in Section V.D. hereof F Reliance by Other Persons. Any Person dealing with the Company, other than a Member, may rely on the authority of a particular Manager or Managers in taking any action in the name of the Company,if such Manager or Managers provide to such Person a copy of the applicable provision of this Operating Agreement and/or the resolution or written consent of the Managers or Members granting such authority, certified in writing by such Manager or Managers to be genuine and correct and not to have been revoked, superseded or otherwise amended. G Manager's Expenses and Fees. A Manager shall be entitled, but not required, to receive a reasonable salary for services rendered on behalf of the Company or in his capacity as a Manager. The amount of such salary shall be determined by majonty vote of the Members. The Company shall reimburse any Manager for reasonable out-of-pocket expenses that were or are incurred by the Manager on behalf of the Company with respect to the start-up or operation of the Company, the on-going conduct of the Company's business, or the dissolution and winding up of the Company and its business. H. Liability of Managers. So long as a Manager acts in good faith with respect to the conduct of the business and affairs of the Company,such Manager shall not be liable or accountable to the Company or to any of the Members, in damages or otherwise,for any error of judgment, for any mistake of fact or of law, or for any other act or thing that he may do or refrain from doing in connection with the business and affairs of the Company, except for willful misconduct or gross negligence or breach of fiduciary duty, and further except for breaches of contractual obligations or agreements between such Manager and the Company. VI CAPITAL ACCOUNTS ALLOCATIONS AND DISTRIBUTIONS A Capital Accounts. Separate Capital Accounts shall be established and maintained in accordance with Treasury Regulations Section 1.704-1(b)(2)(iv), as amended, on behalf of each Pantops Perk,LLCIOrg/Pantops Perk OA 10-28-05 10 Member, including any additional or substituted Member who shall hereafter own Shares in the Company, and further maintained for each Member in accordance with the following provisions 1. To each Member's Capital Account there shall be credited the fair market value of such Member's Initial Capital Contribution and any additional Capital Contributions,such Member's distnbutive share of profits, and the amount of any Company liabilities that are assumed by such Member 2 To each Member's Capital Account there shall be debited the amount of cash and the fair market value of any Property distributed to such Member pursuant to any provision of this Operating Agreement, such Member's distributive share of losses, and 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. 3 In the event any Shares in the Company are transferred in accordance with the terms of this Operating Agreement,the transferee shall succeed to that proportion of the Capital Account of the transferor which is proportionate to the percentage of the transferor's Shares so transferred. 4 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. 5. Except as is specifically provided otherwise in this Operating Agreement or in the Act,no Member shall have any liability or obligations to restore a negative or deficit balance in such Member's Capital Account, nor shall any negative balance in such a Member's Capital Account create any liability on the part of the Member to any third party. B Loans to the Company. If the Company has insufficient funds to meet its obligations as they come due and to carry out its routine, day-to-day affairs,then, in lieu of obtaining required funds from third parties or selling its assets to provide required funds,the Company may, but shall not be required to, borrow necessary funds from one or more of the Members as designated by the Managers; provided that the terms of such borrowing shall be commercially reasonable and the Company shall not pledge its assets to secure such borrowing without the prior written consent of a majonty of the Members. Loans by a Member to the Company shall not be considered contributions to the capital of the Company. C Effect of Sale or Exchange. In the event of a permitted sale or other transfer of a Shares in the Company,the Capital Account of the transferor shall become the Capital Account of the transferee in proportion to the percentage of the transferor's interest transferred D 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 X. hereof), Pantops Paris,LLC/OrglPantops Parts OA 10-28-05 11 shall be made to the Members in proportion to their respective Shares. All distributions of cash or property shall be made at such time and in such amounts as determined by the Managers or the majonty vote of the Members Distnbutions of available cash [all cash funds of the Company on hand from time to time (other than cash funds obtained as contributions to the capital of the Company by the Members and cash funds obtained from loans to the Company) after (i) payment of all operating expenses of the Company as of such time, (ii) provision for payment of all outstanding and unpaid current obligations of the Company as of such time, and (iii) reasonable provision for reserves as determined by the Manager] shall be made at least once per year 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 Member or Members pursuant to this Section. E. Allocations. Except as otherwise provided in Section VI.F. hereof and subject to the provisions of Section 704(c) of the Code, 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 proportion to the respective number of Shares they own F Allocation with Respect to Contributed Property If, at any time during the Company's existence, any Member contributes to the Company property with an adjusted basis to the contnbuting Member which is more or less than the agreed fair market value and such property is accepted by the Company at the time of its contribution,the taxable income,gain,loss,deductions and credits with respect to such contributed property for tax purposes only (but not for purposes of calculating the Members' respective Capital Accounts) shall be shared among the Members so as to take account of the variation between the basis of the property to the Company and its agreed fair market value at the time of contribution, pursuant to Section 704(c) of the Code G. Allocations of Income and Loss Required by Federal Income Tax Regulations. 1. Notwithstanding any provision herein to the contrary, (i)any expense of the Company that is a "nonrecourse deduction" within the meaning of Treasury Regulations Section 1 704-2(b)(1) shall be allocated among the Members proportionately in accordance with their respective number of Shares, (ii) any expense of the Company that is a "partner nonrecourse deduction" within the meaning of Treasury Regulations Section 1.704-2(i)(2) shall be allocated in accordance with Treasury Regulations Section 1 704-2(i)(1), (iii) if there is a net decrease in Company Minimum Gain within the meaning of Treasury Regulations Section 1 704-2(0(1)for any Taxable Year, items of gain and income shall be allocated among the Members in accordance with Treasury Regulations Section 1.704-2(f)and the ordering rules contained in Treasury Regulations Section 1.704-2(j), and(iv)if there is a net decrease in Member Nonrecourse Debt Minimum Gain within the meaning of Treasury Regulations Section 1.704-2(i)(4)for any Taxable Year, items of gain and income shall be allocated among the Members in accordance with Treasury Regulations Section 1 704-2(i)(4)and the ordering rules contained in Treasury Regulations Section 1 704-2(j) A Member's"interest in partnership profits" for purposes of determining its share of the nonrecourse Pantops Park,LLC/Org/Pantops Park OA 10-28-05 12 liabilities of the Company within the meaning of Treasury Regulations Section 1 752-3(a)(3)shall be such Member's proportionate number of outstanding Shares of the Company 2 Notwithstanding any provision herein to the contrary, if a Member receives in any Taxable Year an adjustment, allocation, or distribution described in subparagraphs (4), (5), or (6) of Treasury Regulations Section 1 704-1(b)(2)(ii)(d) that causes or increases a negative balance in such Member's Capital Account that exceeds the sum of such Member's shares of Company Minimum Gain and Member Nonrecourse Debt Minimum Gain, as determined in accordance with Treasury Regulations Sections 1.704-2(g) and 1.704-2(1), such Member shall be allocated specially for such Taxable Year(and, if necessary, later Taxable Years)items of income and gain in an amount and manner sufficient to eliminate such negative Capital Account balance as quickly as possible as provided in Treasury Regulations Section 1.704-1(b)(2)(ii)(d) After the occurrence of an allocation of income or gain to a Member in accordance with this Section, to the extent permitted by Regulations Section 1.704-1(b), items of expense or loss shall be allocated to such Member in an amount necessary to offset the income or gain previously allocated to such Member under this Section 3. Items of loss,expense or deduction shall not be allocated to a Member to the extent that such allocation would cause a deficit in such Member's Capital Account(after reduction to reflect the items descnbed in Treasury Regulations Section 1 704-1(b)(2)(ii)(d)(4), (5) and (6)) to exceed the sum of such Member's shares of Company Minimum Gain and Member Nonrecourse Debt Minimum Gain Any loss,expense or deduction in excess of that limitation shall be allocated to the other Member. After the occurrence of an allocation of loss, expense or deduction to a Member in accordance with this Section, to the extent permitted by Treasury Regulations Section 1.704-1(b),profit or income shall be allocated to such Member in an amount necessary to offset the loss, expense or deduction previously allocated to such Member under this Section. 4. Notwithstanding any other provision to the contrary, in no event shall a Member have a Membership Interest of less than 1%or be allocated less than 1%of each material item of income, gain,expense,loss, or credit for each taxable year; provided, however,temporary nonconformance with this Section shall be permitted to the extent allowed by IRS Revenue Procedure 95-10 or any successor guidance published by the IRS. 5 "Profits" and"losses" and items of income,gain,expense,or loss referred to in this Section shall be determined in accordance with federal income tax accounting principles as modified by Treasury Regulations Section 1.704-1(b)(2)(iv),except that profits and losses shall not include items of income, gain, and expense that are specially allocated pursuant to subparagraphs 1 , 2 , or 3. above. All allocations of income, profits, gains, expenses, and losses (and all items contained therein)for federal income tax purposes shall be identical to all allocations of such items set forth in this Section, except as otherwise required by Section 704(c) of the Code and Section 1 704-1(b)(4) of the Treasury Regulations Pantops Park,LLC/OrglPantops Park OA 10-28-05 13 H Allocation of Income and Loss and Distributions in Respect of Shares Transferred. 1. Unless the Members otherwise unanimously agree, if any Shares in the Company are transferred,or are increased or decreased by reason of the admission of a new Member or otherwise, during any taxable year of the Company, each item of income, gain, loss, deduction, or credit of the Company for such taxable year shall be assigned to the particular period of such taxable year to which such item is attributable (i.e., the period in which it is accrued or otherwise incurred)and the amount of each such item so assigned to any such period shall be allocated to the Member based upon his respective Shares in the Company at the close of such period. For the purpose of accounting convenience and simplicity,the Company may(but need not)treat a transfer of, or an increase or decrease in, the number of Shares in the Company which occurs at any time during a month as having been consummated on the last day of such month, regardless of when during such month such transfer, increase, or decrease actually occurs. 2 Distributions of Company assets in respect of Shares in the Company shall be made only to the Members who, according to the books and records of the Company, are the holders of record of Shares in respect of which such distributions are made on the actual date of distribution Neither the Company nor any Member shall incur any liability for making distributions in accordance with the provisions of the preceding sentence, whether or not the Company or the Member has knowledge or notice of any transfer or purported transfer of ownership of Shares in the Company which has not been approved by majority vote of the Members. Notwithstanding any provision above to the contrary, gain or loss of the Company realized in connection with a sale or other disposition of any of the assets of the Company other than in the ordinary course of the Company's routine business operations shall be allocated solely to the parties owning Shares in the Company as of the date such sale or other disposition occurs. VII. RECORDS, REPORTS, ACCOUNTING A. Records; Taxable Year. The Company shall maintain and make available to the Members its records to the extent provided in the Act. The fiscal year of the Company shall be the taxable year for federal income tax purposes B. Financial and Operating Statements and Tax Returns. Within ninety(90)days after the close of each taxable year of the Company, the Managers shall cause to be delivered to each Member a statement setting forth such Member's allocable share of all tax items of the Company for such year, and all such other information as may be required to enable each Member to prepare his federal, state and local income tax returns in accordance with all then applicable laws, rules and regulations The Managers also shall cause to be prepared and filed all federal, state and local income tax returns required of the Company for each taxable year. Also within ninety (90) days after the close of each fiscal year of the Company, the Managers shall also use reasonable efforts to cause the Company to prepare a financial report of the Company for such taxable year,containing a balance sheet as of the last day of the year then ended, an income statement for the year then Pantops Patio,LLC/Org/Pantops Paris OA 10-28-05 14 • ended, a statement of sources and applications of funds, and a statement of reconciliation of the Capital Accounts of the Members C Banking The funds of the Company shall be kept in one or more separate bank accounts in the name of the Company in such banks or other federally insured depositories as may be designated by the Managers, or shall otherwise be invested in the name of the Company in such manner and upon such terms and conditions as may be designated by the Managers. All withdrawals from any such bank accounts or investments established by the Managers hereunder shall be made on such signature or signatures as may be authorized from time to time by the Managers. Any account opened by the Managers for the Company shall not be commingled with other funds of the Managers or Members. D Access to Accounting Records. All books and records of the Company shall be maintained at any office of the Company or at the Company's pnncipal place of business, and each Member and his duly authorized representative shall have access to them at such office of the Company and the rights to inspect and copy them at reasonable times E Tax Matters "Partner". The Manager then currently serving the Company for the longest tenure of service as such is hereby designated as the"Tax Matters Partner" under the Code F Power of Attorney to the Managers 1. Each Member does hereby irrevocably constitute and appoint the Manager(s) serving in office from time to time, and each of them, as such Member's true and lawful attorney, in his name, place and stead,to make, execute, consent to, swear to, acknowledge, record and file from time to time any and all of the following. a. Any certificate or other instrument that may be required to be filed by the Company or the Members under the laws of the Commonwealth of Virginia or under the applicable laws of any other jurisdiction in order to conduct business in any such junsdiction,to the extent the Managers deem any such filing to be necessary or desirable b. Any amendment to the Articles adopted by the Members as provided in the Articles or this Operating Agreement. c. Any certificates or other instruments that may be required to effectuate the dissolution and termination of the Company pursuant to the provisions of this Operating Agreement. 2. It is expressly understood,intended and agreed by each Member for himself, his successors and assigns that the grant of the power of attorney to the Managers pursuant to subsection (a) is coupled with an interest, is irrevocable, and shall survive the death or legal incompetency of the Member or such assignment of his Shares Pantops Park LLC/Org/Pantops Paris OA 10-28-05 15 • 3 The aforementioned power of attorney may be exercised by listing the names of the Members and having the signature of the Manager or Managers, as attorney-in-fact, appear with the notation that the signatory is signing as attorney-in-fact of the listed Members VIII ASSIGNMENT AND TRANSFER OF SHARES A. Non-applicability to Company Issuance of Shares. The restrictions imposed by this Article VIII shall not apply to any issuance (as distinguished from transfer) of Shares by the Company B Assignment Generally Except as provided in Sections VIII C and VII1.D below or as otherwise expressly permitted by this Operating Agreement, David Rosen hereby covenants and agrees that he will not sell, assign, transfer, mortgage, pledge, encumber, hypothecate or otherwise dispose of all or any part of his interest in the Company to any Person or Entity without first offering in writing to sell such interest to the Company. Notwithstanding any provision of this Article VIII , no assignee of Shares shall become a Member of the Company except upon the consent of a majority of the remaining Members. C Right of First Refusal. If David Rosen shall have received a bona fide written offer for the purchase of all or any portion of his Shares from any person which such he desires to accept (or intends to transfer all or any portion of his Shares to any person for less than adequate consideration),he(all other Members being termed"remaining Members"in this Section)shall first provide notice in writing to the Company and the remaining Members of all of the terms of such offer or proposed transfer, including the true identity of the proposed transferee and a true copy of the offer or proposal for such transfer. 1. The Company shall have the first option to purchase such Shares on the same terms as those of the proposed transfer, exercisable upon written notice of its exercise of the option within thirty (30) days after the notice of the proposed transfer. If the Company declines the first refusal or takes no action, the remaining Members must, if one or more elects to exercise said option, provide written notice of exercise of the option within sixty (60)days after the notice of the proposed transfer Closing of the purchase under the exercise of a first refusal right shall occur within thirty (30)days after the notice of the exercise of such option. Payment of the pnce for such Shares shall be made in the same manner as the terms of the proposed transfer 2 If either the Company or the remaining Members do not purchase all of David Rosen's Shares pursuant to this nght of first refusal, David Rosen may sell or transfer the Shares to the proposed transferee only in strict accordance with the terms of the proposed transfer which were communicated to the Company and the remaining Members, provided however, that the Company shall have the right to approve the financial condition and experience of the prospective transferee, which approval shall not be unreasonably withheld. Any such prospective transferee must also expressly assume a pro rata share of all leasehold and other financial obligations of the Company (but David Rosen shall not be relieved of any liability to the Company thereunder as the result of Pantops Park,LLC/OrgIPantops Parts OA 10-28-05 16 such assumption in the event of a default). However,if David Rosen shall fail to complete such sale or transfer within one hundred twenty (120) days of the notice to the Company and the remaining Members,or fails to make such sale or transfer strictly in accordance with the terms of the proposed transfer which were communicated to the Company and the remaining Members,David Rosen shall not have the right, power or authority to complete the sale or transfer of his Shares without again fulfilling all of the requirements of this Section D Option to Purchase Certain Shares. 1 If an Option Event(as defined below)occurs with respect to David Rosen(an "Option Member", and all other Members being termed"remaining Members" in this Section),the Company and the remaining Members shall have the option to purchase the Option Member's Shares for fair market value and upon the terms and conditions set forth in this Section VIII.D For purposes of the foregoing, an "Option Event" shall mean: (i)Bankruptcy of a Member, provided, however,that a majority of the remaining Members consent to continue the Company;(ii)the death of a Member, (iii)the liquidation of a Member which is an Entity;(iv)the assignment by a Member for the benefit of creditors; or(v) before February 1, 2016, the issuance of a call by the Company or at least two-thirds(2/3)of the Members to David Rosen(or his permitted successors and assigns) to redeem/purchase all of his Shares. The term"Option Member"shall include an Option Member's personal representative or trustee in bankruptcy, to the extent applicable 2 Upon any Option Event occurring to an Option Member,the Option Member shall deliver written notice of the occurrence of such Option Event to the Company and the remaining Members, but failure to do so shall not impair the Company's nghts hereunder in any way The Company shall have the first option, but not the obligation, to purchase the Option Member's Shares at any time dunng the sixty (60) day period immediately following the date on which it receives notice of the occurrence of the Option Event. Such option shall entitle the Company to purchase such Shares for the fair market value of such Shares. The consent of a majonty of the remaining Members shall be required to authorize the exercise of such option by the Company Such option must be exercised by delivery of a written notice from the Company to the Option Member during the aforementioned period. Upon delivery of such notice the exercise of such option shall be final and binding on the Company and the Option Member 3 If the Company shall not exercise its first option to purchase the Option Member's Shares within sixty (60) days as provided above, for thirty (30) days thereafter (i e., between the 61st and 90th days after the Option Event),the remaining Members shall have an option to purchase such Shares. During such thirty (30)day period,the remaining Member(s)shall notify the Option Member and all other remaining Members in writing of their election to purchase their "Pro Rata Part" of the Option Member's Shares. "Pro Rata Part" means the proportion that the Shares of a remaining Member electing to participate in the purchase of a Option Member's Shares bears to the aggregate number of Shares in the Company of all remaining Members electing to participate in the purchase of an Option Member's Shares. The failure of any Member to submit a notice within the applicable period shall constitute an election on the part of such Member not to purchase such Member's Pro Rata Part of the Option Member's Shares. Each remaining Member Pantops Park,LLC/Org/Pantops Park OA 10-28-05 17 shall be entitled to purchase a portion of the Option Member's Shares based on each remaining Member's Pro Rata Part on the date of the Option Event. 4 In the event the remaining Members collectively elect to purchase less than all of the Option Member's Shares,then the Company may at its election purchase such remaining portion of the Option Member's Interest. In the event the Company elects not to purchase the remaining portion of the Option Member's Interest,the unpurchased portion may be purchased by those remaining Members that elected to purchase more than their Pro Rata Part Any of the options permitted by this paragraph VIII.D 4 must be exercised in writing within ten(10) days following the expiration of the ninety (90) day penod following the Option Event 5. If foregoing options are not exercised in such a manner that all of the Option Member's Shares are to be purchased,none of the exercised options shall be valid,the business of the Company shall continue; and the Option Member(or his successors in interest)shall retain his Shares. 6. Except in the case of a call upon David Rosen's Shares under clause (v) of paragraph VIII D.1 above in which case the fixed redemption/purchase price set forth in paragraph VIII.D.7 below shall apply, the fair market value of the Option Member's Shares shall be determined without application of any minority,marketability,blockage or other similar discounts or control premiums,but rather shall reflect a proportionate share of the aggregate fair market value of the Company. Such determination of value shall be made as expeditiously as possible by a disinterested appraiser selected by the Company. Should any party(the"Objecting Party")disagree with a valuation of his Shares that results from an appraisal made by an appraiser selected by the Company,another appraisal shall be made as expeditiously as possible by a disinterested appraiser selected by the Objecting Party. If the two appraised values of the Objecting Party's Shares differ by an amount that is less than ten percent(10%) of the lower appraised value of such Shares,then the average of the two appraised values shall be the value of the Shares for purposes of this Agreement. If the two appraised values of the Objecting Party's Shares differ by an amount that is greater than ten percent (10%) of the lower appraised value of such Shares, then the two disinterested appraisers shall select a third disinterested appraiser,who shall also determine the fair market value of the Company pursuant to the first two sentences of this paragraph. The average of the two(2)valuations which are closest together shall be deemed to be the fair market value of the Company and shall be conclusive and binding on all parties. The cost for the original appraisal by the appraiser selected by the Company shall be paid by the Company If there is a second appraisal which is within ten percent(10%)of the original appraisal,such second appraisal shall be paid for by the Objecting Party If the second appraisal which is more than ten percent(10%)of the onginal appraisal,then the costs of all the appraisals shall be paid by the Company. All appraisers shall be well-respected,have at least ten(10)years of appraisal experience(or have at least one active owner having at least ten(10)years of appraisal expenence), and be certified by a national appraisal trade group as competent in appraising real estate Pantops Park,LLC1Org/Pantops Paris OA 1C-28-05 18 7 In the case of a call upon David Rosen's Shares under clause(v)of paragraph V III.D 1 above,the fixed redemption/purchase price of David Rosen's original One Hundred(100) Shares shall be Seven Hundred Fifty Thousand and No/100 Dollars ($750,000.00). 8. Closing of any purchase and sale transaction pursuant to this Section VIII.D. shall occur on or before the later of: (i)the one hundred twentieth(120th)day following the Option Event, or(ii) the date which is not later than thirty (30) days after the date on which the appraisal descn bed above is complete(the"Closing Date"),or the next previous business day if the same shall fall on a weekend or holiday. At the Closing,documents evidencing the payment obligation(s)shall be delivered by the purchasers,and evidence of the transfer of the Shares from the Option Member to the purchaser(s) thereof, duly endorsed, shall be delivered by the Former Member or the representatives of the Former Member. 9. The purchase price for the Option Member's Shares shall be paid by the Company or the remaining Member(s) participating in the purchase, as the case may be, in cash if the purchasing party(ies)desire,otherwise by delivery of a promissory note payable in one hundred twenty (120)equal monthly installments of principal together with interest,commencing to accrue from the Closing Date at the then current Long-Term Applicable Federal Rate (the "AFR") under Section 1274(d) of the Code for the month of closing (or a rate per annum equal to what the AFR would be for such month under Section 1274(d) of the Code if the AFR is no longer published)to fully amortize such purchase price over such one hundred twenty (120) payments with the first payment being due and payable thirty (30) days following the Closing Date If the Company is making all or any part of the purchase, the remaining Members shall personally guarantee their Pro Rata Part of the note. Any unpaid capital contributions of the Option Member shall be netted against subsequent installment payments as they become due. 10. If the option to purchase the Option Member's Shares is exercised by the Company,the Company shall have the further option to make a distribution of property(which may be cash or other assets of the Company)to the Option Member in lieu of payment of all or part of the purchase price referred to above in an amount equal to the fair market value of the distributed property, with the balance of the purchase price being payable by delivery of a promissory note as described above in the amount of such balance. 11. If at a time when the Company has an option to purchase an Option Member's Shares, it is prohibited from purchasing all or any portion of such Shares pursuant to the Act or any loan agreement or similar restrictive agreement, the Option Member and the remaining Members shall, to the extent permitted by law, take appropriate action to adjust the value of the Company's assets from book value to a fair valuation based on accounting practices and principles that are reasonable under the circumstances in order to permit the Company to purchase such Shares If the Company becomes obligated to purchase an Option Member's Shares under this Section and the above action cannot be taken or does not create sufficient value to permit the Company to do so,the Company shall be obligated to purchase the portion of the Shares it is permitted to purchase. Pantops Paris,LLC/Org/Pantops Park OA 10-28-05 19 12 In order to fund any obligations under this Operating Agreement, the Company or the Members may maintain such life insurance policies on the lives of one or more Members as the Members determine from time to time to be desirable E Guaranteed Debt. Notwithstanding the foregoing provisions of Section VIII.D. above in the event of the death of a Member only, if the Company has Guaranteed Debt outstanding at the time of the death of a Member, the Option Member which is otherwise obligated to sell its Shares pursuant to Section VIII D. above shall not be required to consummate such sale unless and until the estate of the Option Member is released from the deceased Member's personal guaranty on such Guaranteed Debt by the creditor thereof, or in lieu thereof, the written indemnification of the Company and all the remaining Members,jointly and severally. No such release from Guaranteed Debt or indemnification in lieu thereof, however, shall impair any obligation incurred by an Indemnifying Member to indemnify a Paying Member pursuant to Article XI. below accruing prior to the date of closing of a purchase and sale of an Option Member's Shares under Section VIII D above F Absolute Prohibition. Notwithstanding any other provision in this Article VIII , the Shares of a Member, in whole or in part, or any rights to distributions therefrom, shall not be sold, exchanged,conveyed,assigned,pledged,hypothecated,subjected to a security interest or otherwise transferred or encumbered, if, as a result thereof, the Company would be terminated for federal income tax purposes in the opinion of counsel for the Company or such action would result in a violation of federal or state securities laws in the opinion of counsel for the Company. G. Members Acquiring Shares in the Company. No Person, other than the initial Members, who acquires Shares in the Company shall be admitted as a Member of the Company, except upon the consent of a majonty of the remaining Members. H. No Resignation or Voluntary Dissociation by Member. It is agreed by all parties hereto that the success of the Company is dependent in large degree upon its continuous operation without disruptions to its capital structure and membership. The parties therefore agree that no Member shall have any nght of resignation or voluntary dissociation pursuant to the authority of Section 13.1-1032 or paragraph 1 of Section 13.1-1040 1 of the Act Any attempted resignation, voluntary dissociation or withdrawal shall be of no force or effect. I Effect of Prohibited Action. Any transfer or other action in violation of this Article VIII shall be void ab imtio and of no force or effect whatsoever J Rights of an Assignee If an assignee of Shares is not admitted as a Member because of the failure to obtain the consent of a majority of the remaining Members as provided in this Section VIII.,such assignee shall not be entitled to vote or otherwise participate in management,but nevertheless shall be entitled to receive such distributions from the Company as the assigning Member would have been entitled to receive under Sections VI.D. and X.D 4. of this Operating Agreement with respect to such Shares had the assigning Member retained such Shares Pants Park,LLC/Org/Pantops Paris OA 10-28-05 20 IX LIMITATION OF LIABILITY. INDEMNIFICATION A. Indemnification of Organizers. Managers and Members. 1 To the greatest extent not inconsistent with the laws and public policies of the Commonwealth ofVirgima,the Company shall indemnify any Organizer,Manager or Member(any such Organizer, Manager or Member who is a person, and any responsible officers, partners, shareholders, directors, or managers of such Organizer, Manager or Member which is an Entity, hereinafter being referred to as the indemnified "individual") made a party to any proceeding because such individual is or was a member, manager or organizer against all liability incurred by such individual in connection with any proceeding, provided that the individual has met the standards of conduct for indemnification set forth in subsection IX.A.3. below The Company shall pay for or reimburse the reasonable expenses incurred by a Member, Manager or Organizer in connection with any such proceeding in advance of final disposition thereof if: (i) the individual furnishes the Company a wntten affirmation of the individual's good faith belief that he or she has met the standard of conduct for indemnification described in subsection IX.A.3. below,and(ii)the individual furnishes the Company a written undertaking,executed personally or on such individual's behalf, to repay the advance if it is ultimately determined that such individual did not meet such standard of conduct. 2 The Company shall have the power,but not the obligation,to indemnify any individual who is or was an employee or agent of the Company to the same extent as if such individual was a Member, Manager or Organizer. 3 Indemnification of an individual is permissible under this Section only if(i) he conducted himself in good faith,and(ii)he reasonably believed that his conduct was in or at least not opposed to the Company's best interest, or(iii)in the case of any criminal proceeding, he had no reasonable cause to believe his conduct was unlawful; and (iv) such individual is not adjudged in am' such proceeding to be liable for negligence or misconduct in the performance of duty. 4. Nothing contained in this Section shall limit or preclude the exercise or be deemed exclusive of any right under the law, by contract or otherwise, relating to indemnification of or advancement of expenses to any individual who is or was a Member, Manager or Organizer of the Company or is or was serving at the Company's request as a director, officer, partner, manager, trustee, employee, or agent of another foreign or domestic company, partnership, association, limited liability company, corporation,joint venture, trust, employee benefit plan, or other enterpnse, whether for profit or not. Nothing contained in this Section shall limit the ability of the Company to otherwise indemnify or advance expenses to any individual. It is the intent of this Section to provide indemnification to Members, Managers and Organizers to the fullest extent now or hereafter permitted by the law consistent with the terms and conditions of this Section Indemnification shall be provided in accordance with this Section irrespective of the nature of the legal or equitable theory upon which a claim is made, including without limitation negligence, breach of duty, mismanagement, waste, breach of contract, breach of warranty, stnct liability, Pantops Paris,LLC/Org/Pantops Park OA 10-28-05 21 violation of federal or state securities law, violation of the Employee Retirement Income Security Act of 1974, as amended, or violation of any other state or federal law. B Definitions For purposes of this section: 1 The term"expenses"includes all direct and indirect costs(including without limitation counsel fees, retainers, court costs, transcripts, fees of experts, witness fees, travel expenses,duplicating costs,printing and binding costs,telephone charges,postage,delivery service fees and all other disbursements or out-of-pocket expenses)actually incurred in connection with the investigation, defense, settlement or appeal of a proceeding or establishing or enforcing a nght to indemnification under this Section, applicable law or otherwise. 2 The term "liability" means the obligation to pay a judgment, settlement, penalty,fine, excise tax(including an excise tax assessed with respect to an employee benefit plan), or reasonable expenses incurred with respect to a proceeding. 3 The term "party" includes an individual who was, is or is threatened to be made a named defendant or respondent in a proceeding 4. The term"proceeding" means any threatened,pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative and whether formal or informal 5. The Company may purchase and maintain insurance for its benefit,the benefit of any individual who is entitled to indemnification under this section,or both,against any liability asserted against or incurred by such individual in any capacity or arising out of such individual's service with the Company, whether or not the Company would have the power to indemnify such individual against such liability. X. DISSOLUTION AND TERMINATION A. Events of Dissolution. The Company shall be dissolved upon the first to occur of the following. 1 The affirmative vote of at least two-thirds (2/3) of the Members to the dissolution of the Company; 2. The entry of a decree of judicial dissolution of the Company as provided in the Act, and 3. Any event not set forth above that under the Act requires dissolution of the Company Pantops Perk,LLC/Org/Pentops Park OA 10-28-05 22 B Liquidation Upon the dissolution of the Company, it shall wind up its affairs and distribute its assets in accordance with the Act by either or a combination of both of the following methods as the Members shall determine. 1 Selling the Company's assets and, after the payment of Company liabilities, distributing the net proceeds therefrom to the Members; and/or 2. Distributing the Company's assets to the Members in kind with each Member accepting an undivided interest in the Company's assets, subject to its liabilities, in satisfaction of his Shares C Orderly Liquidation. A reasonable time as determined by the Managers not to exceed eighteen (18)months shall be allowed for the orderly liquidation of the assets of the Company and the discharge of liabilities to the creditors so as to minimize any losses attendant upon dissolution. D Dismbutions Upon Liquidation. Upon liquidation, the Company assets (including any cash on hand) shall be distributed in the following order and in accordance with the following priorities 1. First, to the payment of the debts and liabilities of the Company and the expenses of liquidation, including a sales commission to the selling agent, if any; then 2 Second, toward repayment of outstanding loans, if any, made by Members to the Company; then 3 Third, to the setting up of any reserves that the Managers (or the person or persons carrying out the liquidation) deem reasonably necessary for any contingent or unforeseen liabilities or obligations of the Company. At the expiration of such penod as the Managers (or the person or persons carrying out the liquidation) shall deem advisable, but in no event to exceed eighteen (18) months (or sooner if required by applicable income tax rules), the Company shall distribute the balance thereof in the manner provided in the following subsection; then 4. Fourth, to the Members with positive Capital Accounts in accordance with their respective positive Capital Account balances, subject to the provisions of paragraph X.D.5. immediately below For purposes of this Section, the Capital Account of each Member shall be determined after all adjustments made in accordance with this Operating Agreement, Section 704 of the Code and the Treasury Regulations thereunder,and resulting from the Company's operations and from all sales and dispositions of all or any part of the Company's assets Any distributions pursuant to this Section should be made by the end of the taxable year in which the liquidation occurs(or, if later,within 90 days after the date of the liquidation) To the extent deemed advisable by the Members, appropriate arrangements (including the use of a liquidating trust) may be made to assure that adequate funds are available to pay any contingent debts or obligations. Pantops Park,LLC/OrglPantops Parts OA 10-28-05 23 5 If upon liquidation, after giving effect to all contributions, allocations and distributions for all periods,there would otherwise be any conflict between a distribution pursuant to the Members'respective Capital Account balances and the intent of the Members with respect to the distribution of proceeds as provided in Section VI.D.,the Manager shall, notwithstanding the provisions of Section VI.E allocate to the Members gains, profits and losses (including items thereof) in a manner that will, as nearly as possible, cause the distribution of liquidation proceeds to the Members to be in accordance both with the Members' economic expectations as set forth in Section VI.D and their respective Capital Account balances. If the Company's gains, profits and losses are insufficient to cause the Members'Capital Accounts to be in such amounts as will permit liquidation proceeds to be distributed both in accordance with the Members' respective Capital Account balances and Section VI.D.,then the liquidation proceeds shall be distributed in accordance with the Members'respective Capital Account balances after the allocations described herein have been made, provided that if any Member still has a deficit balance in his Capital Account after giving effect to all of the allocations of this paragraph X.D.5.,such Member shall contribute to the capital of the Company the amount necessary to restore such deficit balance to zero in compliance with applicable Treasury Regulations under Section 704 of the Code. 6. In the event of a distribution in liquidation of the Company's property in kind, the fair market value of such property shall be determined by a qualified and disinterested M.A.I. appraiser,selected by the Managers(or the person or persons carrying out the liquidation),and each Member shall receive an undivided interest in such property equal to the portion of the proceeds to which he would be entitled under the immediately preceding subsection if such property were sold at such fair market value. E Taxable Gain or Loss. Taxable income, gain and loss from the sale or distribution of Company property incurred upon or during liquidation and termination of the Company shall be allocated to the Members as provided in Section VI.F. above. F No Recourse Against Members Except as provided by law,upon dissolution, each Member shall look solely to the assets of the Company for the return of his Capital Contribution. If the Company property remaining after the payment or discharge of the debts and liabilities of the Company is insufficient to return the Capital Contnbution of each Member,such Member shall have no recourse against any other Member. Notwithstanding the foregoing,however,this Section shall not affect any liability ansing by virtue of a loan or other contract or by fraud,criminal or gross and wilful misconduct Xl. PROVISIONS RELATING TO MEMBERS' GUARANTY OF COMPANY DEBT A. A Member shall not be obligated to guarantee Company indebtedness or other contractual obligations unless he agrees to do so. If, however, with the consent of the Managers, a Member guarantees any indebtedness of the Company for borrowed money ("Guaranteed Debt") and is subsequently called upon by the creditor holding such Guaranteed Debt to pay on his guarantee and accordingly does so (which Member shall be referred to below as a "Paying Pantops Paris,LLC/Org/Pantops Park OA 10-28-05 24 Member"), in whole or in part, the Paying Member(whether or not such Paying Member remains a Member)shall be entitled to indemnification from the other Members for the amount by which the pornon of the Guaranteed Debt that the Paying Member actually pays exceeds his share of the Guaranteed Debt then being paid by all Members ("Discharged Guaranteed Debt") [A Member's share of Discharged Guaranteed Debt shall be determined by multiplying (i) such Member's proportionate number of Shares (and/or his successor(s)) by (ii) the amount of Discharged Guaranteed Debt.] Any and all other Members("Indemnifying Members")shall,within thirty (30) days of the Paying Member's demand therefor, indemnify and reimburse any Paying Member who has paid more than his respective share of Discharged Guaranteed Debt such amount(s) (up to the Indemnifying Members' respective shares of Discharged Guaranteed Debt) as shall cause each of the Paying Member and the Indemnifying Members to bear his respective share of the Discharged Guaranteed Debt. B. If any Indemnifying Member shall default in his obligation to indemnify a Paying Member as stated above, then the Paying Member shall be entitled to additional indemnification from the nondefaulting Indemnifying Members, within fifteen (15) days of the Paying Member's demand therefor,such that the Paying Member and the nondefaulting Indemnifying Members shall share the burden of paying the Discharged Guaranteed Debt in amounts proportionate to their respective Shares in the Company(whereupon the still-nondefaulting Indemnifying Members shall also be considered Paying Members entitled to indemnification hereunder). C. The Paying Member(s),pan passu,shall have a continuing lien and secunty interest against the Shares of the defaulting Indemnifying Member(s) to secure the payment of the indemnification provided hereunder. The defaulting Indemnifying Member(s) shall execute and deliver to the Paying Member(s) such instruments, including security agreements and financing statements, as any Paying Member deems necessary or appropriate to create and perfect such lien and security interest,and the defaulting Indemnifying Member(s)shall pay all reasonable attomey's fees in connection with preparation and filing of such instruments. Each Member irrevocably appoints the Paying Member(s), any one or more of whom may act, as his attorney-in-fact to execute, deliver and file any instruments, including security agreements and financing statements, as may be necessary or appropriate, in their discretion, to create and perfect the lien and security interest intended to be created subject to the provisions of this Article XI. This power of attorney shall be deemed coupled with an interest and shall not terminate upon the death, Bankruptcy or disability of the defaulting Indemnifying Member. If any defaulting Indemnifying Member does not cure his default under this Article XI immediately upon demand by the Paying Member(s),the Paying Member(s) shall be entitled to exercise all the rights and remedies of a secured party on default under the Uniform Commercial Code as in effect in the Commonwealth of Virginia. Interest shall accrue on the amount in default at the rate of two percent(2%) plus the Prime Rate in effect from time to time (but not higher than the maximum rate legally permitted). D. All distributions otherwise payable to defaulting Indemnifying Members while any indemnification owed to a Paying Member remains unpaid shall be distributed to each Paying Member in the proportion that the unpaid amount of indemnification owed to such Paying Member Pantops Park,LLCIOrglPantops Park OA 10-28-05 25 • bears to the total unpaid amount of indemnification owed to all Paying Members, and shall be applied first to the payment of interest and then to the payment of pnncipal. XII ARBITRATION A. Conduct of Arbitration Any dispute arising out of the terms of this Agreement shall be settled by arbitration in Charlottesville, Virginia in accordance with the rules of the American Arbitration Association. In the event of any such arbitration,there shall be only one arbitrator,who shall be selected by the Amencan Arbitration Association. The arbitrator shall promptly obtain such information regarding the matter as he deems advisable and shall decide with dispatch the matter and render a written award which shall be delivered to the Company. Any such award shall be a conclusive determination of the matter and shall be binding upon each Member, and shall not be contested by any party At the time of rendering the award,the arbitrator shall establish his fee and expenses in connection therewith. Such fees and expenses shall be allocable by the arbitrator in his award Judgment upon any arbitration award may be entered and enforced in any court of competent jurisdiction No dissolution or termination of the Company shall affect or impair any party's rights to arbitrate a dispute under this Section XII.A. B. Injunctive Relief. Notwithstanding the provisions of Section XII.A.,any party may apply to the Circuit Court for the City of Charlottesville, Virginia for injunctive relief and other interim measures to prevent or stop irreparable harm to such party's nghts or property during the pendency of any arbitration proceeding. XIII MISCELLANEOUS PROVISIONS A No Third Party Beneficiaries. The provisions of this Operating Agreement relating to the financial obligations of Members(or their successors in interest)are not intended to be for the benefit of any creditor or other Person(except for Members and the Company itself)to whom any debts, liabilities or obligations are owed by (or who otherwise has any claim against)the Company or any of the Members;and, except for Members,no creditor or other person shall obtain any right under any of such provisions or shall by reason of any of such provisions make any claim in respect of any debt, liability or obligation(or otherwise) against the Company or any of the Members. B. Attorneys'Fees In the event any Member brings an action to enforce any provisions of this Operating Agreement against the Company or any other Member, whether such action is at law, in equity or otherwise, the party substantially prevailing in such action shall be entitled, in addition to any other rights or remedies available to it, to collect from the non-prevailing party or parties the reasonable costs and expenses incurred in the investigation preceding such action and the prosecution of such action, including but not limited to reasonable attorneys' fees and court costs C Notices Whenever,under the provisions of the Act or other law,the Articles or this Operating Agreement,notice is required to be given to any Person,it shall not be construed to mean Pantops Perk,LLC/Org/Pantops Paris OA 10-28-05 26 exclusively personal notice unless otherwise specifically provided,but such notice may be given in writing,by mail,addressed to the Company at its principal office from time to time and to any other Person at his address as it appears on the records of the Company from time to time, with postage thereon prepaid Any such notice shall be deemed to have been given at the time it is deposited in the United States mail. Notice to a Person may also be given personally or by telegram or telecopy sent to his address as it appears on the records of the Company. The addresses of the initial Members as shown on the records of the Company shall originally be those set forth in Exhibit A attached hereto Any Person may change his address as shown on the records of the Company by delivering written notice to the Company in accordance with this Article D. Application of Virginia Law This Operating Agreement, and the interpretation hereof, shall be governed exclusively by its terms, the Act, and by the laws of the Commonwealth of Virginia, without reference to its choice of law provisions E. Amendment of Operating Agreement. No amendment or modification of this Operating Agreement shall be effective except upon the affirmative vote of at least two-thirds(2/3) of the Members F Construction. Whenever the singular number is used in this Operating Agreement and when required by the context,the same shall include the plural,and the masculine gender shall include the feminine and neuter genders, and vice versa. G Headings The headings in this Operating Agreement are inserted for convenience only and are in no way intended to descnbe,interpret, define, or limit the scope,extent or intent of this Operating Agreement or any provision hereof. H. Waivers The failure of any party to seek redress for violation of or to insist upon the strict performance of any covenant or condition of this Operating Agreement shall not prevent a subsequent act, which would have originally constituted a violation, from having the effect of an ongtnal violation I Rights and Remedies Ctulative. The rights and remedies provided by this Operating Agreement are cumulative and the t,.A of any one right or remedy by any party shall not preclude or waive the right to use any or all other rer lies. Such rights and remedies are given in addition to any other rights the parties may have by law, si"-„xe, ordinance or otherwise. 1 Severabtliiv.If any provision of this Operating Agreement�.;, e application thereof to any Person or circumstance shall be invalid,illegal or unenforceable to any`ex , the remainder of this Operating Agreement and the application thereof shall not be affected- a.,: shall 6e enforceable to the fullest evert permitted by law. • K. Heirs,Successors atittsujs. Each and all of the covenants,terms,provisions and agreements herein contained shall be biding upon and inure to the benefit of the parties hereto and, Pantops Park,LLC/OrglPantops Park OA 10-28-05 27 • J to the extent permitted by this Operating Agreement, their respective heirs, legal representatives, successors and assigns. L Other Agreements Affecting Shares. The Members may enter into other Agreements affecting the nghts of Members with respect to the transfer, purchase and sale of their Shares, specifically including certain repurchase rights over Shares subsequently issued to new Members. The terms of any such subsequent agreements shall supersede any inconsistent terms or provisions of this Operating Agreement unless such agreements expressly state that the terms or provisions of this Operating Agreement control in the event of a conflict. M Counterparts. This Operating Agreement may be executed in counterparts,each of which shall be deemed an original, but all of which shall constitute one and the same instrument N Entire Agreement. This Operating Agreement sets forth all of the promises, agreements,conditions and understandings between the parties respecting the subject matter hereof and supersedes all pnor negotiations,conversations,discussions,correspondence, memoranda and agreements between the parties concerning such subject matter. The undersigned, being all the Members of the Company,hereby agree, acknowledge and certify that the foregoing Operating Agreement constitutes the sole and entire Operating Agreement of the Company,unanimously adopted by the Members of the Company as of the date first written above EN t'ERPRISE PROPERTIES,L C,Member / li �' (SEAL) Datee of Signature 8/ � 7 /05By: William v. Dittmar,Jr., Manager 8/ /05 (SEAL) Date of Signaturo , David Rosen, Member • ppntops Fin4 I I CJOra p,,,,•-ra r'arkk OA 10-28-05 ?8 10 thc extent permitted by this Operating Agreement., their respective heirs, legal repre enlaliv•vi, succrs`c►rs and assigns. L. (Z titer AyrscmcntlAf ctjnYShams. The Members may enter into other Agrec-meets affecting the rights or Members with respect to the transfer, purchase and sale or their Shares, spec►fically including certain repurchase rights over Shares subsequently issued to new Members. I he terms of yty such subsequent agreements shall supersede any in ortsistcnt terms or provisions of this()panting Agreement unieux such agreements expressly state that the ttrrm or prervisiulTh of this Operating Agreement control u► the event of a conflict. M_ Counterparts_ This Opereiiing Agreement rrwy be exe:utrd in counterparts, each of which %hull he deemed an original, but all of which shad constitute one and the same instrument. N. fntirc Agreement. This Operuting Agreement r%ets forth all of the promises, agrccmcnts,cc,nditi4 ns:uid untberst;rndings between the parties respecting the subject matter hereof 4,4.1 .uper.cses all prior negotiations.conversations.discussions,corrrsportdcnee.memoranda and agreements between the parties concerning such subject matter_ rhe undersigned, being all the Members of the Company.hereby agree. acimowicdgc and certify that thc foregoing Operating Agreement constitutes the sole and entire Operating A6►recment of the Company.unanimously adopted by the Members of the Company as of the date first written above EN TER PRISE PROPERTIES,LLC.Member (SEAL) Duke of Signature William D. Dittmar, Jr., Maeenger li I y ;lfi rr r r t (SpAI.) Date of Signature Dav-id�ttgsca. Member ��-- ;'vtlxs perk.u_C,OripPiritops part(DA tD-213,05 2. • EXHIBIT A TO OPERATING AGREEMENT OF PANTOPS PARK,LLC Initial Capital Member Address Shares Contnbution ENTERPRISE PROPERTIES, LLC 400 East Main Street, Suite 1 900 $114,232 95 a Virginia limited liability company Charlottesville, Virginia 22902 David Rosen 1050 17th Street,NW, Suite 600 100 $508,750.00 Washington,D.C. 20036 Pentops Park,LLC/Org/Pantops Perk OA 10-28-05 29 (Page 1 of 9) Instrument Control Number 020293 Commonwealth of Virginia Land Record Instruments Cover Sheet-Form A 11IIINI-NII11 MU tf 11111lu11111f1A11AU KS VLR Cover Sheet Agent 1.0.66] Doc ID: 0011703501108 Type: DEE Recorded: 11/01/2005 at 02:38:08 PM _ Fee Amt: 913,047.99 Page 1 of 8 A T IC Date of Instrument: • 11/1/2005 Shelby• helbyrMa Chlly,Clerk] MarshallCt Clerk Circuit Court A 10 F11s# 2005-00020299 x IR Instrument Type' [DBS 1 BK3098 P0198-205 P E Number of Parcels [ 1] ENumber of Pages 1 5] • M City❑County RI [Albemarle County ] (Box for Deed Stamp Only) P T First and SeC4IId rantore Last Name { First Name I Middle Name or Initial I Suffix [KimcoLC ][ ][ ][ ] ❑❑ [ 11 ][ ][ ] First and Second rantees I Last Name First Name Middle Name or Initial Suff ix ❑ [Pantops Park LLC ]I II ][ ] ❑❑ [ I[ ][ ][ 1 Grantee Address (Name) [Pantops Park,LLC ] (Address 1) [400 E Main Street,Suite 1 ] (Address 2) [ ] (City,State,Zip) [Charlottesville ] [VA] [22902 ] Consideration[3,000,000 00 [Existing Debt[0 00 ] Assumption Balance[0 00 1 Prior Instr.Recorded at:City ❑ County❑ ] ] Percent.in this Juris [ 100] Book [ J Page ( J Instr.No [ ] Parcel Identification No(PIN) [01600 ] Tax Map Num (if different than PIN) [07800 00 00 1 Short Property Description [Parcel south side US Rt.250 ] [ ] Current Property Address(Address 1) [ 1 (Address 2) [ ] (City,State,Zip) [ ][ ][ ] Instrument Prepared by [McClure,Callaghan&Atkins ] Recording Paid for by [Fell,Pettit&Williams,PLC ] Return Recording to (Name) [Feil,Pettit&Williams,PLC I (Address 1) [530 E Main Street ] (Address 2) [ ] (City.State,Zip) [Charlottesville ][VA ][22902 1 Customer Case ID [DHP/6165 003 ] [ 1[ ] ). { r0�i rL r r,k,j.,' i r i. .' r I� .�r i4 4 rr L, r1 i lI L . r it M1I� ,;I Cover Sheet Page#1 of 1 , . v ). 1, , r i1 +L Book:3098,Page:191 (Page 2 of 9) This Document Was Prepared Be.• McClure,Callaghan&Atkins 4154'"Street NE Cherloitervllc, VA 22902-1333 far Map Reference Na:97100-00-00-01600 THIS DEED,made this 20th day of October,2005,by and between KIMCO,L.C.,a Virginia limited liability company,Grantor,and PANTOPS PARK,LLC,a Virginia limited liability company,Grantee,whose address is 400 E.Main Street,Suite 1,Charlottesville, Virginia,22902. WITNESSETH THAT,IN CONSIDERATION of the sum of THREE MILLION AND NO/100 DOLLARS($3,000,000.00)cash in hand paid by Grantee to Grantor,and other good and valuable consideration,the receipt whereof is hereby acknowledged,Grantor does hereby GRANT,with General Warranty of Title and Modern English Covenants of Title,unto Grantee,all that certain lot or parcel of land,lying and being in the County of Albemarle, State of Virginia,more particularly described on Exhibit A attached hereto. Without reimposing any of the reservations,restrictions,easements and conditions affecting the hereinabove described property;this conveyance is made subject to all of them. WITNESS the following signatures and seals: KIMCO,L.C., a Virginia limited liability company By: 11(V4I-44 (SEAL) E.Grant Cosner,Operating Manager Book:3098,Page:191 (Page 3 of 9) STATE OF VIRGINIA; COUNTY OF ALBEMARLE: The foregoing Deed was acknowledged before me this 1st day of November,2005,by E.Grant Cosner,Operating Manager of KIMCO,L.C.,a Virg liability company. Notary Public • My commission expires:July 31,2008 Book:3098,Page:198 (Page 4 of 9) EXHIBIT A Situated in the State of Virginia,County of Albemarle and known as Parcel 16,Tax Map 78,located on the south side of U.S.Route 250 approximately 250 feet east of the intersection of U.S.Route 250 and State Route 20;further bounded and described as follows: Commencing at the Point of Beginning:A set iron pin along the right of way of U.S.Route 250 and being a common corner to the Kimco,L.C.property, formerly owned by Moore's Lumber&Building Supplies,Inc.,and land now or formerly owned by The Clean Machine,Inc.,then along said right of way along a curve to the right a distance of 75.89 feet,said curve having a radius of 5,721.58 feet and a central angle of 0°45'36"and being subtended by a chord bearing South 86°08' 15"East a distance of 75.89 feet,to a found Virginia Department of Transportation pipe; Thence along said right of way South 85°44'02"East,a distance of 148.51 feet to a set iron pin; Thence along said right of way South 04°15'58"West,a distance of 1.50 feet to a found Virginia Department of Transportation iron pin; Thence along said right of way South 85°44'02"East,a distance of 52.00 feet to a set iron pin; Thence along said right of way North 04°15'58"East,a distance of 1.50 feet to a found Virginia Department of Transportation iron pin; Thence along said right of way South 85°44'02"East,a distance of 78.39 feet to a set iron pin being a common corner to the Kimco,L.C.property, formerly owned by Moore's Lumber&Building Supplies,Inc.,and land now or formerly owned by Baumgardner,said point being the beginning of a curve; Thence along a curve to the left a distance of 20.08 feet,said curve having a radius of 25 feet and a central angle of 46°00'55"and being subtended by a chord which bears South 24°26'44"West 19.54 feet to a set iron pin; Thence along the line with Baumgardner South 01°25'09"West,a distance of 173.75 feet to a set iron pin; Thence along the line with Baumgardner North 85°46'21"West,a distance of 20.01 feet to a set iron pin; Book:3098,Page:19E (Page 5 of 9) Thence along the tine with Baumgardner South 01°25'09"West,a distance of 123.86 feet to a set iron pin; Thence along the line with Baumgardner and the Albemarle County Service Authority South 01°51'59"West,a distance of 261.92 feet to a set iron pin being a common corner to the Kimco,L.C.property,formerly owned by Moore's Lumber&Building Supplies,Inc.,and land now or formerly owned by the Albemarle County Service Authority; Thence along the line with the Albemarle County Service Authority North 88° 07'58"West,a distance of 50.00 feet to a set iron pin being a common corner to the Kimco,L.C.property,formerly owned by Moore's Lumber&Supplies, Inc.,land now or formerly owned by the Albemarle County Service Authority and land now or formerly owned by the Pantops/103 Land Trust; Thence South 89°22'31"West,a distance of 313.37 feet to a found iron pin being a common corner to the Kimco,L.C.property formerly owned by Moore's Lumber&Supplies,Inc.,and land now or formerly owned by the Pantops/103 Land Trust also being a point in the line of land now or formerly owned by Virginia Land Trust; Thence along the line with the lands now or formerly owned by Virginia Land Trust,Riverbend Medical Center,Kevin L.Smith,and The Clean Machine, Inc.,North 05°03'39"East,a distance of 605.62 feet to the Point of Beginning,containing 4.7711 acres,but subject to all legal highways and easements of record according to a survey performed by Roudabush,Gale& Associates dated November 20, 1997;and Portions of the premises herein conveyed are shown(i)on a plat of William S. Roudabush,Inc.,dated October 20,1976,revised November 16, 1967 and recorded in the Clerk's Office of the Circuit Court of Albemarle County, Virginia in Deed Book 611,Page 141,and(ii)on a plat of B.Aubrey Huffman&Associates,Ltd.,dated June 1,1991 and recorded in the aforesaid Clerk's Office in Deed Book 984,Page 50;and Together with a non-exclusive easement for ingress and egress to and from Parcel X to South Pantops Drive.Said easement being fifty feet(50')wide and running from Parcel X along the eastern boundary of Parcel Y as shown on the Plat to the corner between Parcel Y and Parcel 15C-5 and thence in a southeasterly direction along the northeastern boundary of Parcel 15C-5 to an existing easement to South Pantops Drive,shown and described on a plat of B.Aubrey Huffman&Associates,Ltd.,dated February 1,1988,captioned "Plat Showing Division of Parcel 15C,As Shown on Sheet 78,County Tax Maps,"recorded in the aforesaid Clerk's Office in Deed Book 984,Page 50, and then across said easement to South Pantops Drive;and Book:3098,Page:19E (Page 6 of 9) BEING the same property conveyed to the Grantor herein by deed of Moore's Lumber&Building Supplies,Inc.,a Delaware corporation,dated October 16, 2000,recorded in the Clerk's Office of the Circuit Court of Albemarle County,Virginia,in Deed Book 1962,Page 106. The Property hereby conveyed is further shown and described on a plat entitled"BOUNDARY SURVEY:KIMCO,L.C.CONTAINING 4.7708 ACRES,RIVANNA MAGISTERIAL DISTRICT ALBEMARLE COUNTY, VIRGINIA,"dated May 31,2005,made by Kirk Hughes and Associates, surveyors and land planners,(the"Kirk Hughes Survey"),a copy of which is attached hereto as Exhibit A-1,which reflects minor variances from the metes and bounds description set forth above. To the extent the boundaries of the property hereby conveyed as shown and described on the Kirk Hughes Survey encompass land which would not be included in the metes and bounds description set forth above,it is the intention of the Grantor,by this deed,to quitclaim and convey,without warranty,all of the Grantor's right,title and interest in such land to the Grantee. Book:3098,Page:19E (Page 7 of 9) LEGEND' Deed Book:. 3oQ p U, S IRF= IRON ROD FOUND ll RI 0 U NCF= NAIL & CAP FOUND VVV MO NI IPF= IRON PIPE FOUND (R/W VA o-= UTILITY POLE D.B 1137, PG g- I 1179, PG. 6 (VDC _ PLAT BOOK XI .T----- IRF IPF / CENTRAL EA TELEPHONE C_-1�_l��j D.B 1154. PG 124 1 �-� S 85'46'30' E 1 I 1 T.M.P. 78-17F2 I THE CLEAN MACHINE, INC. IIh RET I EA 0 B. 1082 P 703 I D.E D.B. 968 P 224 I ial A. f OD 689 P 828 (PLAT) vi D B. ZONED HC TRANSMISSION i U TOWER a m I I I 'L.- 1 j I I I I I I I I 11 1 I 1 I Lai CC 2 I I 0,7 I I TMP. 78-16 w� / { KIMCO, L.0 I I D.B. 1962, PG. 10E CrQ ,I T.M.P 78-17H 1 I D.8. 1227, PG. 69(PL I KEVIN L. SMITH I I D.B. 611, PG. 141(PL are D.B. 897 P 596 I1 I 1241 RICHMOND ROA D.B. 797 P 703 (PLAT) I ZONED HC • I I i I 7.- 4.7708 ACRE 1 I i$ I 1 I w 1 1 1 I - I I 1 I 0 I I I 1 0 / l— '—a I 8 I CURVE TABLE: I I I I Q I NO. DELTA RADIUS ARC TANGENT I 1 C1 00'45'30' 5721.58' 75.73' 37.86' I I a I C2 45'54'51. 25.00' 20.03' 10.59' 1 i 1 T.MP. 78-17H1 1 X? I LINE TABLE: RIVERBEND MEDICAL BUILDING D.B. 1179 P 155 I •m s I NO. BEARING DISTANCE -D 8. 1179 P 164 (PLAT) E33 1 ZONED HC I z L7 S O5'34'00. W 1.47' I > I L2 N 04'26'54- E 1.44' ; 1 1 13 N 85'46'19" W 20.08' f 1 I /GUV 1 II I I �6 SA I , 1 I 1 I , I I / / I I i I I T M P, 78-17H2 1 I IRE S 89'22 31 W 313.41 ' CHARLES WM. HURT AND SHIRLEY L. FISHER I I , AS TRUSTEES FOR THE I T.M P. 78-16A / I VIRGINIA LAND TRUST I I I CHARLES WM. HURT AND VITHENT ' // I AS TRUSTEES FOR THE 0 B 1043 P 43 I 1 103 SOUTH PANTOPS DRIVE LAND 1 0.8. 1240 P 291 (PLAT) I I I D.B. 1584 P 219 ZONED HC I I D.B. 1240 P 291 (PLAT) SO 1 I I ! ZONED HC 1 I J I 1 1E` ps N` j I ii� ,BYO 0 s.. -' I I i.0D 20 �0 1 i / Book:3098,Page:198 (Page 8 of 9) ) DAD) 2 5 0 (3 ok" P3. <90s LIE1)) THEWIT INERTY U.D HOWNN EHERE1ONDOEAR FLOOD PLAIN 2.) THE PROPERTY IS SUBJECT TO EASEMENTS, RESTRICTIONS AND COVENANTS OF RECORD. KOT) D B. ITE HWY 218 S 85.49'10" E 52.04' NCF L1 NCF. 85'46'30° E 78.3o'. Cr 'PE. _ _ SURVEYOR'S CERTIFICATE `,.-_-I I CENTRAL TELEPHONE CO -� I, G.V. "KIRK" HUGHES, A DULY EASEMENT IRF I. EASEMENT LICENSED SURVEYOR IN THE '9, PG. 6 D B. 1135, PG- 68 COMMONWEALTH OF VIRGINIA, DO HEREBY EASEMENT CERTIFY THAT THE PROPERTY SHOWN 7, PG. 725 a ^ I HEREON IS THE SAME PROPERTY T.M.P 78-1581 RICKE CONVEYED TO KIMCO, L.C. BY DEED • a: Y LEE a4UMGARDNER I RECORDED IN DEED BOOK, 1962, PAGE 120 ,. AND DONNA G. BAUMGARDNER DB. 774 P 510 I 106 IN THE CLERK'S OFFICE OF THE +w a 3 D B. 445 P 425 (PLAY) CIRCUIT COURT OF ALBEMARLE COUNTY, _ a. 13 ZONED HC I VIRGINIA AND THAT I HAVE CAREFULLY a ) SURVEYED THE PROPERTY DELINEATED '4 ' P I ON THIS PLAT AND ITS CORRECT TO THE " a I BEST OF MY KNOWLEDGE. G7� y • _ IRF IRF {• f I • o I T G.V. flifHuGHEs• N . NO. 1458 S 3 r-/Os- . I N P TM.P 78-15B I lq� .tp4 '�to• to RICKEY LEE BAUMGARDNER S URV F' cn c3 n AND DONNA G BAUMGARDNER I---- _-._ tr�a D.B. 881 P 426 ---_...._ ' I �j a to D.B. 68 P 7 (FIAT) { - t^ 3 'IRON SET { - t� om z m Z ca to I { HORD BEARING CHORD Il 88'06'24" E 75.73' ---- O 24'17'48. W 19.50' /"-o-^ ZSj,j c� / I 20' SANITARY SEWER EASEMENT 7 D B. 1371, PG. 329 _J 4 r 8 I • / T.M.P 78-15C BOUNDARYSURVEY: I ALBEMARLE COUNTY SERVICE / DBA11240RP 287 KIMCO, L.C. i D.B. 1240 P 291 (PLAT) ZONED HC CONTAINING ' / I 4.7708 ACRES RIVANNA MAGISTERIAL DISTRICT I' N88'2y'27 'IRF ALBEMARLE COUNTY, VIRGINIA I I MAY 31, 2005 -.I / I 50' INGGRSEMENTGRESSEA SCALE: 1" = 50" I i D.8.1227. PG 69 I I KIRK HUGHES & ASSOCIATES ' / L LAND SURVEYORS & PLANNERS 220 EAST HIGH STREET P CHARLOTTESVILLE, VIRGINIA 22902 `1 ' Cl�SS (434) 296-6942 -��f..P5L N i \ O�a�yS���Nto lei -:-;bG�1// \ \^ SQ O i •� / / \ /� g04'P ,t r/X` 06. i •N \ File Nome: C.\Surveys\2005-021\Boundary Survey\2005021-01.dwg Book:3098,Page:19E (Page 9 of 9) • RECORDED IN CLERKS OFFICE OF ALBEMARLE ON November 01,2005 AT 2:38:08 PM $3,000 00 GRANTOR TAX PD AS REQUIRED BY VA CODES58.1.802 STATE.$1,50000 LOCAL'$1,500.00 ALBEMARLE CO 1 TY,VA SH HALL CLE CIRCUIT COURT mac Book:3098,Page:191 (Page 1 of 8) .t Instrument Control Number )2'029!4 Commonwealth of Virginia Land Record Instruments Cover Sheet-Form A I1INI11IIIUIIINII1IINIIEl1l1l1lnll1II1IIN Doc ID: 001170370908 Type: DEE [ILS VLR Cover Sheet Agent 1.0.861 Recorded: 11/01/2005 at 02:38:17 PM Fee Amt: $8,385.32 Page 1 of 8 Albemarle County, VA C Date of Instrument. 11/1/2005 Shelby Marshall Clerk Circuit Court [ ] FlleM 2005-00020294 ER Instrument Type: [DOT ] 8K3098 Pa206-213 E Number of Parcels [ 1] X Number of Pages [ 6] E • M City❑County® [Albemarle County 1 (Box for Deed Stamp Only) P First and Second ranters 1 Last Name F First Name ____ addle Name or Inidai Suffix PI [Pantops Park LLC 1[ ][ I[ ] ❑❑ [ 1[ 1( 1[ 1 First and Seco s r I Last Name I First Name Middle Name_or Initial 1 Suffix ❑od [Kimco LLC II[ I[ 1[ 1 ❑❑ [Gucci Tr ][Kenneth 1[P II ] Grantee Address (Name) _ [Kimco,L C. ] (Address 1) [415 4th Street,N.E. ] (Address 2) [ ] (City,State,Zip) [Charlottesville ] [VA 1 [22902 ] Consideration[2,500,000 00 ]Existing Debt[0.00 ] Assumption Balance[0.00 ] Prior Instr.Recorded at:City ❑ County❑ [ I Percent.in this Jude. [ 1001 Book [ 1 Page [ J Instr.No [ ] Parcel Identification No(PIN) [01600 ] Tax Map Num. (If different than PIN) [07800 00 00 ] Short Property Description [Parcel south side US Rt 250 1 [ 1 Current Property Address(Address 1) [' ] (Address 2) [ 1 (City,State,Zip) (' It it ] Instrument Prepared by [McClure,Callaghan&Atkins ] Recording Paid for by [Fell,Pettit&Williams,PLC 1 Return Recording to (Name) [Fell,Pettit&Williams,PLC 1 (Address 1) [530 E.Main Street ] (Address 2) [ 1 (city,State.Zip) [Charlottesville ][VA][22902 ] Customer Case ID [DHP/6165 003 1 1 I[ 1 , a ';f.,� it � fkliIP fill ;;1111,' 1 1 ��� � ; Cover Sheet Page M 1 of 2 y.0' � l�(f't 1 11''•!.`1.?,Ai.• l I 5 !l' If Book:3098,Page:20E (Page 2 of 8) Instrument Control Number i Commonwealth of Virginia Land Record Instruments Continuation Cover Sheet Form B [ILS VLR Cover Sheet Agent 1.0.661 T G C Date of Instrument: [11/1/2005 ] ARRO Instrument Type: [DOT ] X A R N N P E T T Number of Parcels [ 1] X 0 E Number of Pages [ 61 E R E (Box for Deed Stamp Only) P City El County® [Albemarle County I T Grantors/Grantees/Parcel Continuation Form B a _ 1 Last Name 1 _ Fsst Name I Middle Name or Initial I Suffix 1 ❑❑©❑ [Callaghan Tr ](Robert 1[M I[ I ❑❑❑❑ [ 1[ ][ IF I ❑0 ID❑000 [ 11 I[ 1[ I 0❑❑❑ [ 1[ If If I ❑0O0 [ ][ 1[ ]I 1 0❑❑❑ [ I[ II I[ 1 ❑0❑❑ [ 1[ II 11 0 0 0 0 [ 1[ ]I ][ i ❑❑❑❑ [ 1[ 1[ 11 1 ❑❑❑❑ [ II 1[ II❑❑❑❑ [ I 11 II I ❑❑❑❑ [ II II II ] ❑❑❑❑ [ 11 IF it I ❑0 CI 0 [ 1[ II ]I 1 El El❑El [ If II ]I I Prior Instr.Recorded at:City ❑ County❑ [ 1 Percent.in this Juris. [ 1 Book I I Page [ I Instr.No [ 1 Parcel Identification No(PIN) [ 1 Tax Map Num. (if different than PIN) [ 1 Short Property Description [ 1 [ 1 Current Property Address(Address 1) [ 1 (Address 2) [ I (City,State,Zip) [ IL I[ I ri Cover Sheet Page#2 of 2 Book:3098,Page:20E (Page 3 of 8) ;020294 Prepared by McClure,Callaghan&Atkins Tax Map 07800-00-00-01600 THIS DEED OF TRUST dated this 1st day of November,2005,between PANTOPS PARK, LLC, a Virginia limited liability company,the Grantor,and Kenneth P. Bucci of the County of Albemarle,Virginia,and Robert M.Callaghan,of the County of Albemarle,Virginia,the Trustees, whose address is 415 4ih Street NE,Charlottesville,Virginia,22902; WITNESSETH: THAT FOR AND IN CONSIDERATION of the provisions of this deed, the Grantor does hereby GRANT and CONVEY unto the Trustees,with GENERAL WARRANTY OF TITLE,the following described property described on Exhibit A attached hereto. IN TRUST NEVERTHELESS to secure a certain debt in the amount of TWO MILLION FIVE HUNDRED THOUDAND AND NO/100 DOLLARS($2,500,000.00),evidenced by one note bearing even date with this deed,payable to KIMCO,L.C.with interest thereon at the rate of 4.25 percentum (4.25%) per annum for the first five (5) years, and at a rate equal to the Five Year Treasury Rate at that time for years six (6) through ten (10), said interest payable in monthly installments of$8,854.17 beginning on the 1st day of December,2005,and continuing on the 1st day of each month thereafter until November 1,2010,at which time the interest rate will change and be equal to the Five Year Treasury Rate at that time or 6.25 percentum(6.25%)per annum,whichever is less,and shall continue to be payable on the first day of the remaining months until November 1, 2015,at which time the entire principal balance with accrued interest shall be due and payable in full. The said Note DOES NOT reserve the right to anticipate payment of all or any part of the Book:3098,Page:206 (Page 4 of 8) indebtedness at any time without the express written permission of the Note Holder. This deed of trust secures deferred purchase money. The Note Holder agrees to subordinate this Deed of Trust to the lien of a first deed of trust securing indebtedness incurred for the purpose of designing, constructing and financing improvements on the Property, whether for construction financing, permanent financing, or a refinance of either,provided that the total amount of the indebtedness to be secured by the lien of such first deed of trust and the unpaid principal balance of the Note shall not exceed eighty percent (80%)of the fair market value of the Property and the improvements to be constructed thereon,as determined by an appraisal by a professional real estate appraiser reasonably acceptable to the Note Holder. Upon request of the Grantor,the Note Holder shall enter into an agreement with any future prospective lessee of the Property,or any portion thereof,providing that(a)the lease of the Property or any portion thereof shall be subordinate to the lien of this Deed of Trust; (b)the Note Holder will give such lessee written notice of any default by Grantor hereunder or under the Note,and lessee shall have a period of ten(10)days thereafter within which it may cure Grantor's default; and(c)after any foreclosure of this Deed of Trust,or any deed in lieu thereof, lessee will not be disturbed in its occupancy and enjoyment of the Property or portion thereof leased to such lessee,provided lessee is not in default under the terms of its lease beyond any applicable cure periods,and further provided lessee agrees to attorn to the purchaser of the Property by virtue of such foreclosure or deed in lieu thereof. Provided lessee enters into such Attornment and non-disturbance agreement,any purchaser of the Property pursuant to a foreclosure or deed in lieu thereof shall be obligated to fulfill the obligations of the landlord under any such lease arising after the date of such foreclosure or deed in lieu thereof. Book:3098,Page:20E (Page 5 of 8) The Note Holder agrees to release one or more parcels constituting a portion of the Property from the lien of this Deed of Trust in connection with a sale or conveyance of such parcel or parcels, provided that such parcel shall have been legally subdivided from the balance of the Property,and provided further that Note Holder shall not be required to release any parcel that fronts on or is adjacent to US Route 250,or any parcel that is being occupied by Virginia National Bank,and provided further that the owner of the Property shall have delivered to the Note Holder an appraisal by a professional real estate appraiser reasonably acceptable to the Note Holder stating a fair market value of the residue of the Property which is no less than one hundred twenty percent(120%)of the sum of the then unpaid principal balance of the Note and any other obligations secured by a lien having priority over this Deed of Trust. If the Trustees shall be requested so to do pursuant to Section 55-59 of the Code of Virginia, they shall proceed to sell the property hereby conveyed at public auction,in front of the Courthouse of Virginia,or at such other place as the Trustees may see fit,for cash as to the debt secured,with interest and costs and,as to the remainder,upon such terms as the Grantors may name or upon their failure to do so, upon such terms as the Trustees may deem best, advertisement required in accordance with Section 55-59.2 of the Code of Virginia,as amended. A bidder's deposit not to exceed 10%of the last and highest bid may be required at the discretion of the Trustees,but,if required,such deposit shall not be less than$100.00. In all respects not herein otherwise provided,all parties hereto.as well as all other parties claiming hereunder,shall be governed by Sections 55-59 through 55-61.6 of the Code of Virginia. This Deed of Trust shall be construed to impose and confer upon the parties hereto,and the beneficiaries hereunder,all duties,rights,and obligations prescribed in Section 55-59 in the Code of Virginia of 1950,as amended,and in effect as of the date of the acknowledgment hereof,and further Book:3098,Page:206 (Page 6 of 8) to incorporate herein the following provisions,by the short term references below,of Section 55-60 of the Code of Virginia: Exemptions waived Subject to all upon default Renewal or extension permitted Insurance required:full insurable value Right of anticipation is reserved without penalty Any Trustee may act Substitution of Trustees permitted. Trustees commission upon default shall be reasonable compensation based on the customary hourly rates of the Trustees in effect when services are performed by the Trustee if the Trustee is requested to foreclose but the property is not sold by the Trustees and 5%of the gross proceeds of sale if the Trustee is requested to foreclose and the property has been sold. THE DEBT SECURED HEREBY IS SUBJECT TO CALL IN FULL OR THE TERMS THEREOF BEING MODIFIED IN THE EVENT OF SALE OR CONVEYANCE OF THE PROPERTY CONVEYED. The plural when used herein shall be deemed to be singular when appropriate. WITNESS the following signature and seal: PANTOPS PARK,LLC,a Virginia Limited liability c y By: (SEAL) STATE OF VIRGINIA AT LARGE CITY/C-OUNTY of Ggat-e-.Q({te juij('e,to-wit: The foregoing Deed of Trust was acknowledged before me this /4 day of November, 2005,by �rl1�o= �?. A,t.G..a�, � . i�,Ana ). P.i f rt , ;LC My commission expires: 3/3//-Z U 6.7 Notary Public Book:3098,Page:206 (page 7 of 8) EXHIBIT A Situated in the State of Virginia,County of Albemarle and known as Parcel 16,Tax Map 78,located on the south side of U.S.Route 250 approximately 250 feet east of the intersection of U.S.Route 250 and State Route 20;further bounded and described as follows: Commencing at the Point of Beginning:A set iron pin along the right of way of U.S. Route 250 and being a common corner to the Kimco,L.C.property,formerly owned by Moore's Lumber&Building Supplies,Inc.,and land now or formerly owned by The Clean Machine,Inc.,then along said right of way along a curve to the right a distance of 75.89 feet,said curve having a radius of 5,721.58 feet and a central angle of 0°45'36" and being subtended by a chord bearing South 86°08' 15"East a distance of 75.89 feet, to a found Virginia Department of Transportation pipe; Thence along said right of way South 85°44'02"East,a distance of 148.51 feet to a set iron pin; Thence along said right of way South 04°15'58"West,a distance of 1.50 feet to a found Virginia Department of Transportation iron pin; Thence along said right of way South 85°44'02"East,a distance of 52.00 feet to a set iron pin; Thence along said right of way North 04°15'58"East,a distance of 1.50 feet to a found Virginia Department of Transportation iron pin; Thence along said right of way South 85°44'02"East,a distance of 78.39 feet to a set iron pin being a common corner to the Kimco,L.C.property,formerly owned by Moore's Lumber&Building Supplies,Inc.,and land now or formerly owned by Baumgardner,said point being the beginning of a curve; Thence along a curve to the left a distance of 20.08 feet,said curve having a radius of 25 feet and a central angle of 46°00'55"and being subtended by a chord which bears South 24°26'44"West 19.54 feet to a set iron pin; Thence along the line with Baumgardner South 01°25'09"West,a distance of 173.75 feet to a set iron pin; Thence along the line with Baumgardner North 85°46'21"West,a distance of 20.01 feet to a set iron pin; Thence along the line with Baumgardner South 01°25'09"West,a distance of 123.86 feet to a set iron pin; Thence along the line with Baumgardner and the Albemarle County Service Authority South 01°51'59"West,a distance of 261.92 feet to a set iron pin being a common corner Book:3098,Page:20! (Page 8 of 8) to the Kimco,L.C.property,formerly owned by Moore's Lumber&Building Supplies, Inc.,and land now or formerly owned by the Albemarle County Service Authority; Thence along the line with the Albemarle County Service Authonty North 88°07'58" West,a distance of 50.00 feet to a set iron pin being a common corner to the Kimco,L.C. property,formerly owned by Moore's Lumber&Supplies,Inc.,land now or formerly owned by the Albemarle County Service Authority and land now or formerly owned by the Pantops/103 Land Trust; Thence South 89°22'31"West,a distance of 313.37 feet to a found iron pin being a common corner to the Kimco,L.C.property formerly owned by Moore's Lumber& Supplies,Inc.,and land now or formerly owned by the Pantops/103 Land Trust also being a point in the line of land now or formerly owned by Virginia Land Trust; Thence along the line with the lands now or formerly owned by Virginia Land Trust, Riverbend Medical Center,Kevin L.Smith,and The Clean Machine,Inc.,North 05°03' 39"East,a distance of 605.62 feet to the Point of Beginning,containing 4.7711 acres,but subject to all legal highways and easements of record according to a survey performed by Roudabush,Gale&Associates dated November 20, 1997;and Portions of the premises herein conveyed are shown(i)on a plat of William S. Roudabush,Inc.,dated October 20,1976,revised November 16,1967 and recorded in the Clerk's Office of the Circuit Court of Albemarle County,Virginia in Deed Book 611, Page 141,and(ii)on a plat of B.Aubrey Huffman&Associates,Ltd.,dated June 1, 1991 and recorded in the aforesaid Clerk's Office in Deed Book 984,Page 50;and Together with a non-exclusive easement for ingress and egress to and from Parcel X to South Pantops Drive.Said easement being fifty feet(50')wide and running from Parcel X along the eastern boundary of Parcel Y as shown on the Plat to the corner between Parcel Y and Parcel 15C-5 and thence in a southeasterly direction along the northeastern boundary of Parcel 15C-5 to an existing easement to South Pantops Drive,shown and described on a plat of B.Aubrey Huffman&Associates,Ltd.,dated February 1, 1988, captioned"Plat Showing Division of Parcel 15C,As Shown on Sheet 78,County Tax Maps,"recorded in the aforesaid Clerk's Office in Deed Book 984,Page 50,and then across said easement to South Pantops Drive;and BEING the same property conveyed to the Grantor herein by deed of KIMCO, L.C., a Virginia limited liability company,dated October 20,2005,recorded in the Clerk's Office of the Circuit Court of Albemarle County,Virginia,immediately prior hereto. RECORDED IN CLERKS OFFICE OF ALBEMARLE ON November 01,2005 AT 2:38:17 PM $0 00 GRANTOR TAX PD AS REQUIRED BY VA CODE'58.1-802 STATE'.SO 00 LOCAL:$0.00 ALBEMARLE COUN. ,VA SHE HALL CLER IRCUIT COURT Book:3098,Page:20E -..m..1 . 401116404.4. .14 .N kr4F1 /' ir 111 .r.i" ili•'t II ii- i AN 0111.4.04.^ 41 fi j If I . it IF • -- 0 • 4 a NI /I 1 I .0 . 1 1 111 . ,... 1 .. I 1 I is. ii.. . . ii, liolgh II II iii: . ..A li ...a ....r.-- , -- ' I It illik-q 1 j ...411/.... . • . ....... I....1 --.... 11 III • .. __ - Sk- . . .. I • • I -.L i I II 1 I IF 1• . i I 1 • . 1 .. II I/ t II II I I , 1 I ( ' , II I I , •.1 , If ; fili 111, , ....,._ -- II% all )1111;, 11111 i i 11 _ , _ , .., . ...of . 4 t I ... ' k ....... . It e .. -— ...... ... '"‘ a-• .. -...., ,....- ...„ .......10... •-• -...,.. :2-;' .4'7'. .." 11111.2- r , • r y I hirnalms gOiblar�� mom, •` • • 1 I ... ' " , 101111111114. V •...,i. t I- , . ' :r . . . 1 4 .. . ... , I ' . 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