COUNTY OF HENDERSON

WILLIAM F. WHITMIRE et ux,
LOUISE WHITMIRE, WILLIAM
KILMER et ux, PATRICIA C.
KILMER, GLADYS P. GEORGI,
BENJAMIN CORN et ux, ELIZABETH CORN,
TERRY BROCK et ux, CHARLOTTE BROCK,
JOHN HILL et ux, MYRTLE HILL,
ERNEST H. RUSSELL et ux,
LINDA L. RUSSELL, EDWARD
HONEYCUTT et ux, GENEVA
HONEYCUTT, HAROLD CASE et
ux, JEAN CASE, WILLIAM
MONROE BROCK et ux, JO
ELENA BROCK,
Plaintiffs,

-V- CONSENT JUDGMENT

RICHARD S. MERRILL, WILLIAM
L. BARNWELL, S. J. TIPTON,
BRTR, INC., a North Carolina
Corporation, MERRILL GRADING
COMPANY, INC., a North
Carolina Corporation, BENCHMARK
ENTERPRISES, INC., a North -
Carolina Corporation,
Defendants.

THIS MATTER coming on to be heard before the undersigned Judge by consent of the parties hereto, and it appearing to the Court that the Plaintiffs are property owners of real property located in Henderson County, North Carolina, and known as Butt Mountain Estates, said property being more specifically described or shown in Plat Book 7, at Page 79, now Plat Cabinet C, Slide 114A, Plat Book 8, at Page 16, now Plat Cabinet C, Slide 144-A, and Plat Cabinet A, Slide 60, Henderson County Registry. Further, it appearing to the Court that the Defendants are the owners and/or developers or other persons with interest in a proposed subdivision located in Henderson County, North Carolina known as Cinnamon Woods, said property being more particularly described in Deed Book 648, at Page 831 and Deed Book 590 at Page 509 and Deed Book 621 at Page 211, Henderson County Registry. Further, it appearing to the Court that there are controversies existing between the parties hereto including a controversy concerning the Defendants ownership and/or use of a road running through Butt Mountain Estates known as Marley Drive, particularly that portion of Marley Drive running from Roper Road to the entrance of the proposed Cinnamon Woods Subdivision, and it further appearing to the Court that the parties hereto for their benefit, and the benefit of their successors, have entered into a settlement of all matters in dispute and wish to enter into this Consent Judgment for the purpose of settling and resolving their dispute. It further appearing to the Court from the review of the record in this matter that the terms and conditions of this Consent Judgment are appropriate, and it is in the best interest of justice and the parties hereto that the Court approve the terms and conditions of this Consent Judgment. Based upon the foregoing and the consent of the parties hereto, the Court makes the following FINDINGS OF FACT:

1.

The Plaintiffs constitute owners of real property located within Butt Mountain Estates Hendersonville Township, Henderson County, North Carolina, as described and shown on those plats presently recorded in Plat Cabinet C, Slide 114-A and Plat Cabinet C, Slide 144-A, Henderson County Registry, which real property includes that real property shown on plat recorded in Plat Cabinet A, Slide 60, Henderson County Registry, and all of which real property shall hereinafter be referred to as "Butt Mountain Estates".

2.

The Defendants are all the owners and/or developers and parties having a direct interest in the development of the real property constituting Cinnamon Woods Subdivision, as described in those deeds recorded in Deed Book 590, Page 509 and Deed Book 621 Page 211 and Deed Book 648 at Page 831, Henderson County Registry, which real property shall hereinafter be referred to as "Cinnamon Woods Subdivision". Cinnamon Woods Subdivision is adjacent to, and to the west and south of Butt Mountain Estates.

3.

That all parties, hereto have been duly served with process, are competent to consent to this Consent Judgment, and have consented to these Findings of Fact, Conclusions of Law, and the entry of this Consent Judgment, as shown by their signatures hereinafter.

4.

That the Defendant, BRTR, Inc., is the primary Defendant developer of Cinnamon Woods Subdivision, and purports to possess fee simple title to the roads located within Butt Mountain Estates by virtue of those instruments recorded in Deed Book, 644, Page 521 and Deed Book 641, Page 327, Henderson County Registry.

5.

That all the Plaintiffs hereto already have the right to use all the rights of way located within the perimeter of Butt Mountain Estates for the purposes of ingress, egress and regress to and from their respective properties to the public road, being Roper Road.

6.

It is agreed by the parties hereto that the Defendant, BRTR, Inc., its successors and various assigns (including future owners of lots in Cinnamon Woods Subdivision), shall have the right to use that portion of Marley Drive extending from the public road (Roper road) to the entrance of Cinnamon Woods Subdivision as shown on the surveys by William Patterson, RLS, entitled "Cinnamon Woods" and "Survey for B.R.T.R., Inc." (which surveys are collectively attached hereto as "Attachment A" and incorporated herein by reference) and lying west of the eastern most edge of a ditch line along the eastern margin of the pavement of Marley Drive, for the purposes of ingress, egress and regress to and from the residential lots within Cinnamon Woods Subdivision (as shown on "Attachment A") to the Roper Road, for the purpose of providing a general service easement for utilities (including but not limited to gas, telephone, water, sewer, cable television, and electrical) for residential lots within Cinnamon Woods Subdivision, and for no other purpose or use. The rights of the BRTR, Inc., its successors and assigns (including future owners of lots in Cinnamon Woods Subdivision), to perpetually use, maintain and improve portions of Marley Drive as specified herein shall not be subject to and a condition upon the Defendants' performance of the terms, conditions and duties set forth in this Consent Judgment.

7.

Marley Drive is and shall remain a private drive for the use and benefit of the owners of residential lots within Cinnamon Woods Subdivision as shown on Attachment A, for the use and benefit of owners of real property within Butt Mountain Estates, and for no other use and purpose. Marley Drive shall not be used by any party hereto, his/her/its successors, heirs or assigns as access to or right of way for any property other than that located within Butt Mountain Estates and Cinnamon Woods Subdivision.

8.

Certain Plaintiffs own fee simple interest in and to real property abutting the eastern margin of that portion of Marley Drive extending southward from Roper Road, and there is a dispute between those Plaintiffs and the Defendant, BRTR, Inc. concerning title to those portions of the real property encompassed by the 60 foot wide right of way of Marley Drive and lying east of the eastern margin of the pavement of Marley Drive. In settlement of such issue, it is agreed by those Plaintiffs and Defendant BRTR, Inc. that BRTR, Inc. shall, upon entry of this Consent Judgment, to quitclaim to each of the following named Plaintiffs all of that portion of the real property encompassed by the said 60 foot wide right of way which lies east of the eastern margin of the top of the ditch line running along the eastern margin of Marley Drive and west of the respective Plaintiff's real property: 1) Ernest H. Russell and Linda L. Russell; 2) John Hill and Myrtle Hill; 3) William F. Whitmire and Louise Whitmire? 4) Harold Case and Jean Case; and 5) Gladys P. Georgi.

9.

BRTR, Inc. shall have the right to widen the pavement of that portion of Marley Drive extending from Roper Road to the entrance of Cinnamon Woods Subdivision1 in a westerly direction to the western perimeter of Butt Mountain Estates, subject to the provisions set forth hereinafter in Paragraph 11 concerning Defendant BRTR, Inc.'s responsibility to plant, establish and maintain a sight screen along that western perimeter. BRTR, Inc. shall further have the right to widen the pavement of the same portion of Marley Drive in an easterly direction to the ditch running along the eastern margin of the pavement of Marley Drive. The pavement of Marley Drive shall not be widened any further east than the present location of the ditch along the easterly margin of the pavement of Marley Drive, and the ditch shall not be moved or extended in an easterly direction. Notwithstanding anything herein to the contrary, the aforesaid right of BRTR, Inc. to widen the pavement of Marley Drive and to do any necessary preparation work shall not be exercised so as to significantly disrupt the Plaintiffs' right to use the said portion of Marley Drive for their good and proper access from Roper Road to their property within Butt Mountain Estates. Further, notwithstanding anything herein to the contrary, BRTR1 Inc., its successors and assigns, shall not widen nor expand any portion of the said Marley Drive in accordance with these terms without promptly thereafter paving the said Marley Drive.

10.

In the event that any damage is done to any lawn, shrubbery, fixtures or property of any Plaintiffs during any widening of the pavement of Marley Drive, the BRTR, Inc., its successor or assign, shall promptly pay the respective Plaintiff all costs which the respective Plaintiff incurs in repairing any damage done by BRTR, Inc., its successor(s), agents, employees, or contractors.

11.

BRTR, Inc. shall plant, establish and properly maintain a permanent sight screen along the western perimeter of Butt Mountain Estates, which sight screen shall consist of hemlocks, white pine, or other appropriate evergreens so as to fully screen off Cinnamon Woods Subdivision and the existing trailer park northwest of Marley Drive from the view of the residences located in Butt Mountain Estates. This permanent sight screen shall be planted and established promptly upon the expansion or widening of Marley Drive as provided for hereinabove. BRTR, Inc., (and its successors or assigns in the event that BRTR, Inc. shall lose or convey its interest in Cinnamon Woods Subdivision prior to the sale of all lots therein ) shall properly maintain this permanent sight screen at all times until all lots located in Cinnamon Woods Subdivision are sold and the northern portion of Marley Drive repaved pursuant to the terms and provisions of this Consent Judgment. Relative to the sight screen along the western margin of Marley Drive, nothing herein shall be construed to require BRTR, Inc., its successors or assigns, to do more than promptly replace the trees and plants located along the western margin of Marley Drive upon the expansion or widening of Marley Drive as provided for hereinabove, and to maintain said replacement trees and plants, except that BRTR, Inc., its successors or assigns, shall fully replace any trees and vegetation along the western boundary of Butt Mountain Estates which has been removed or destroyed. BRTR, Inc. shall further replace the fence along the western boundary of Butt Mountain Estates which was torn down. Any future dispute between the parties hereto, their successors or assigns, relative to the compliance by BRTR, Inc., its successors or assigns, in planting and establishing the said permanent sight screen shall be subject to the arbitration provision referred to in Paragraph 15 of these findings of fact.

12.

BRTR, Inc., its successors or assigns, shall upon sale of the last lot in Cinnamon
Woods Subdivision, but in no event later than April 1, 1993, completely and properly repave all of the northern portion of Marley Drive extending from Roper Road to the entrance way of Cinnamon Woods Subdivision as said entrance is shown on Attachment A.

13.

BRTR, Inc., its successors or assigns, shall be responsible for all maintenance on the northern portion of Marley Drive as it extends from Roper Road to the entrance way of Cinnamon Woods Subdivision as said entrance is shown on Attachment A, until such time as all lots in Cinnamon Woods Subdivision are sold and the said northern portion of
Marley Drive is properly and completely repaved in accordance with the previous paragraph. Said maintenance shall include but is not limited to the repairing of the pavement of Marley Drive, proper drainage of water, the sight screen located along the western perimeter of Butt Mountain Estates, and the entrance to Butt Mountain Estates and Cinnamon Woods Subdivision situated at the intersection of Roper Road and Marley Drive.

14.

After the sale of all lots in Cinnamon Woods Subdivision by BRTR, Inc., its successors or assigns, and after the complete and proper repavement of the northern portion of Marley Drive, as provided in Paragraph 12 of these Findings of Fact, the responsibility for maintaining the said northern portion of Marley Drive, the landscaping along it, and the entrance of Roper Road shall be the joint obligation of the owners of lots within Cinnamon Woods Subdivision and the owners of real property within Butt Mountain Estates. A formula shall be used to determine the amount of share due from each owner for said maintenance expense(s): 1) The numerator shall be the expense involved (whether determined specifically, cumulatively, monthly, quarterly, semiannually, etc.) and 2) The denominator shall be the sum of the total number of lots in Cinnamon Woods Subdivision and the total number of owners of real property in Butt Mountain Estates (any set of tenants-by-the-entirety or tenants-in Common shall be considered to be one owner).

15.

The parties hereto expressly agree for themselves, their successors, heirs and assigns, that they will each promptly pay their respective share of all such maintenance expense, and such payment shall be made no later than fourteen (14) days after receiving notice of the amount of their respective share of such maintenance expense. In the event the parties are unable to agree as to the particulars of or necessity for any proposed maintenance or proposed maintenance expense, then a majority of the homeowners in Butt Mountain Estates and a majority of homeowners in Cinnamon Woods shall each select one representative and the two representatives shall select a third representative. Any decision of a majority of the three representatives shall be conclusive and binding on all parties hereto, their successors, heirs and assigns.

16.

Prior to any further drilling, widening of or modifications to the pavement of Marley Drive and prior to any further use of heavy trucks and equipment on or across said road by the Defendants or any of them, a letter of credit in the amount of $10,000.00 shall be issued to First Federal Savings & Loan Association of Hendersonville (hereinafter referred to as the "Escrow Agent" by BRTR, Inc., its successors or assigns. Upon the sale of each lot in Cinnamon Woods Subdivision, BRTR, Inc., its successors or assigns, shall deposit the sum of $75.00 per lot with the Escrow Agent. The monies covered by the letter of credit and the monies deposited with the Escrow Agent shall collectively be referred to hereinafter as the "escrow fund" or "escrow funds".

A. The purpose of this escrow fund is to provide the Plaintiffs with some financial assurance that the Defendants shall fully and timely comply with this Consent Judgment, and to provide the Plaintiffs, their heirs and assigns, with a source of money with which to complete and/or correct the Defendant, BRTR, Inc.'s maintenance and paving obligations herein in the event that BRTR, Inc. does not, for any reason, fully complete and/or correct said obligations in a proper and timely fashion.

B. In the event that any of the conditions or events specified in Subparagraph "G(2)" occurs, then a majority of the Plaintiffs shall notify BRTR, Inc., its agent(s), successors or assigns of said default, condition or event.

C. If BRTR, Inc., its successors or assigns has defaulted in performing any paving, maintenance or payment obligation imposed on it in this Consent Judgment, and has not cured the default obligation and/or correcting the condition specified in the said notice, the Plaintiffs shall have the right to correct the said condition and/or complete the obligation without further notice.

Upon receipt of the bills and statements for the cost and expenses incurred by Plaintiffs, the Escrow Agent shall immediately pay the same from the escrow fund (to the extent that the escrow fund has sufficient money to pay same).

D. If one or more of the conditions or events specified in Subparagraph "G(l)" has occurred, then Plaintiffs shall have the right to correct the condition or complete any obligations imposed herein on BRTR, Inc. without notice and without waiting thirty days. Upon receipt of the bills and statements for the cost and expenses incurred by Plaintiffs, the Escrow Agent shall immediately pay the same from the escrow fund (to the extent that the escrow fund has sufficient money to pay same).

E. The Escrow Agent shall maintain the escrow fund in an interest-bearing checking account or money market account, in his discretion, which account shall bear the tax identification number of BRTR, Inc., its successor or assign. All accrued interest shall accumulate as part of the fund principal. Although the escrow fund shall bear the tax identification number of BRTR, Inc., its successor or assign, the Defendant BRTR, Inc., its successor or assign, shall have no right in or to the fund until all the lots in Cinnamon Woods Subdivision have been sold and the north portion of Marley Drive has been fully and properly repaved. At such time as all the lots in Cinnamon Woods Subdivision have been repaved, and all costs and expenses therefor have been paid, then and in those events, BRTR, Inc., its successor or assign, shall be entitled to any remaining principal and accrued interest, if any and the Escrow Agent shall deliver same to BRTR, Inc., its successor or assign.

F. The remedies provided herein to the Plaintiffs, their respective heirs and assigns, are in addition to and not to the exclusion of the various legal and equitable remedies available.

G(l) Conditions or Events Triggering Expenditure of Funds Without Notice to BRTR. Inc., its successor(s) or assigns:

(a) BRTR, Inc., its successor(s) or assigns, voluntarily or involuntarily enters into or undergoes receivership, bankruptcy or reorganization.

(b) Voluntary or involuntary dissolution of BRTR, Inc., and/or its corporate successor(s) or assigns.

(c) Insolvency of BRTR, Inc., its successor(s) of assigns.

G(2) Conditions or Events Triggering Expenditures of Escrow Funds After Notice to BRTR. Inc., its successor(s) or assigns:

(a) Failure to timely and properly maintain the northern portion of Marley Drive as said maintenance is defined in Paragraph 13 of the Findings of Fact, until the sale of all lots within Cinnamon Woods Subdivision and until the complete repaving of the northern portion of Marley Drive.

(b) Failure to properly and timely compensate any Plaintiff for damage done, if any, to the respective Plaintiff's property, lawn, shrubbery or fixtures by BRTR, Inc., its successor(s)1 agents, employees or contractors as specified in Paragraph 10 of the Findings of Fact.

(c) Failure to properly and timely repave the northern portion of Marley Drive as provided in Paragraph 12 of the Findings of Fact.

(d) Failure of BRTR, Inc., its successor(s) or assigns to properly and timely comply with any maintenance obligation imposed on BRTR, Inc. by this Consent Judgment not set out in Subparagraph "G(1)".

17.

The actual location of the paved road within the right of way entrance to Cinnamon Woods Subdivision as shown on Attachment A shall be located or situated on the ground at an angle to Marley Drive such that lights from motor vehicles exiting Cinnamon Woods Subdivision will not directly illuminate the resident located on Lot 6, Block A, Butt Mountain Estates as shown on that plat recorded in Plat Cabinet C, Slide 144-A, Henderson County Registry. If necessary, BRTR, Inc., its successors or assigns shall also establish and maintain in its subdivision entrance landscaping sufficient evergreen plantings around the paved entrance road so as to comply with the intent of this provision. Nothing herein shall be construed so as to require BRTR, Inc., its successors or assigns, to change or modify the platted roads rights of way as reserved and dedicated within Cinnamon Woods Subdivision as shown on the plats thereof recorded in Plat Cabinet A, Slide 243A, and Plat Cabinet A, Slide 244, Henderson County Registry.

18.

BRTR, Inc., its successors and various assigns, shall not use any portion of Marley Drive or any other roads of rights of way within Butt Mountain Estates as access to any real property other than to lots located in Cinnamon Woods Subdivision as shown on Attachment A, and shall use for that purpose only that portion of Marley Drive extending from Roper Road to the entrance to Cinnamon Woods Subdivision as said entrance is described on Attachment A. BRTR, Inc. its successors and various assigns, shall not use any lot(s) of Cinnamon Woods Subdivision as access to or from any real property located outside the perimeter of Cinnamon Woods Subdivision as shown on Attachment A.

19.

BRTR, Inc. shall record restrictive covenants and plats for Cinnamon Woods Subdivision. Copies of said restrictive covenants and plats for Cinnamon Woods Subdivision are attached hereto as Attachment B and Attachment A, respectively, and incorporated herein by reference.

20.

All lots and properties within Cinnamon Woods subdivision shall be subject to the restrictive covenants attached set forth on Attachment B. BRTR, Inc., its successors and assigns, shall develop, market, sell and convey all lots located within Cinnamon Woods Subdivision according to the plat as shown on Attachment A, and in compliance with the terms and conditions of the restrictive covenants set forth on Attachment B. It is expressly understood and agreed that all parties hereto (including but not limited to the Plaintiffs, their heirs, successors and assigns, who shall be the future owners of real property located within Butt Mountain Estates) are and shall be express third party beneficiaries of all of the restrictive covenants for Cinnamon Woods Subdivision as set forth on Attachment B. Any Plaintiff and any future owner of real property located within Butt Mountain Estates shall have the right to enforce the conditions and provisions of the restrictive covenants as set forth on Attachment B.

21.

No changes or modifications shall be made or permitted in the shape, size or location of any of the residential lots shown on Attachment A and no changes or modifications shall be made in the restrictive covenants as set forth in Attachment B, by BRTR, Inc., its successors or assigns, without the express written consent of all Plaintiffs, their executors, heirs, successors or assigns. BRTR, Inc., its successors or assigns, shall not be entitled to waive or release any restriction, term or condition of the restrictive covenants set forth on Attachment B without the written consent of all Plaintiffs, their executors, heirs, successors or assigns with the exception that BRTR, Inc., its successors or assigns shall be authorized to execute a valid waiver for minor unintentional setback line violations or for a potential hardship which may be caused due to location or terrain of a particular lot or due to requirements of septic tank placement as determined by the Henderson County Health Department.

22.

BRTR, Inc., its successors or assigns, is entitled to have and shall install at the intersection of Marley Drive and Roper Road an attractive sign displaying only the name "Butt Mountain Estates" and "Cinnamon Woods". BRTR, Inc., its successors and assigns, shall provide at the entrance to Cinnamon Woods Subdivision an attractive sign displaying only the name "Cinnamon Woods Subdivision". BRTR, Inc., its successors or assigns, may install lighting for the entrance of Cinnamon Woods Subdivision if it desires, but such lighting shall be indirect lighting so as not to interfere with the residences located in Butt Mountain Estates near the entrance to Cinnamon Woods Subdivision.

23.

BRTR, Inc., its successors and assigns, may use whatever additional signs it desires on its property consistent with its restrictive covenants, so long as such signs are not visible from within Butt Mountain Estates. BRTR, Inc., its successors or assigns, shall maintain attractive landscaping around the entrance to Cinnamon Woods Subdivision for the benefit of all parties hereto.

24.

BRTR, Inc., it successors or assigns, shall install a water system, whether public or private, for the use and service of its lots within Cinnamon Woods Subdivision. BRTR, Inc., its successors and assigns, shall make water available to the owners of real property within Butt Mountain Estates pursuant to the terms herein when water is available for lot(s) in Cinnamon Woods Subdivision. In the event that a system is installed utilizing water provided by the Hendersonville Water Department, its successors or assigns, then all owners of real property within Butt Mountain Estates may tap onto the water system at the same cost and charges as made to owners or purchasers of lots within Cinnamon Woods Subdivision. In the event that a private water system is installed in Cinnamon Woods Subdivision, then BRTR, Inc., its successors or assigns, shall provide sufficient water for at least twenty-one residences (hereinafter referred to as "water units") within Butt Mountain Estates at the same cost and charges as made to owners or purchasers of lots within Cinnamon Woods Subdivision. Notwithstanding anything herein to the contrary, BRTR, Inc., its successors and assigns, shall not be obligated to extend at its expense water lines beyond the perimeter of Cinnamon Woods Subdivision. In the event that any problem arises relative to the quality or quantity of water provided by the system installed by BRTR, Inc., its successors or assigns, then any and all property owners of real property located in Butt. Mountain Estates shall be entitled to the same remedies as those available to property owners within Cinnamon Woods Subdivision.

25.

That S. J. Tipton is the noteholder and beneficiary of the deed of trust(s) encumbering the real property constituting all or part of Cinnamon Woods Subdivision, and joins in the execution of this Consent Judgment solely for the purposes of consenting to its terms and their application to the encumbered real property.

BASED upon the foregoing Findings of Fact the Court concludes as a matter of law that it has jurisdiction over the parties hereto and the issues herein; that the parties hereto have agreed to the foregoing Findings of Fact, these Conclusions of Law, and to the entry of this Consent Judgment.