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HomeMy WebLinkAboutSW8970105_HISTORICAL FILE_20091123STORMWATER DIVISION CODING SHEET POST -CONSTRUCTION PERMITS PERMIT NO. SW87 Of 05 DOC TYPE ❑ CURRENT PERMIT ❑ PPROVED PLANS L`� HISTORICAL FILE ❑ COMPLIANCE EVALUATION INSPECTION DOC DATE 2009 112 3 YYYYMMDD North Carolina Beverly Eaves Perdue Governor November 23, 2009 NCDENR Department of Environment and Division of Water Quality Coleen H. Sullins Director Natural Resources H.E. Miller III, Member/Manager Smith Creek Station, LLC PO Box 2046 Wilmington, NC 28402 Subject: Permit No. SW8 970105 Modification with Renewal Smith Creek Station High Density Stormwater Project New Hanover County Dear Mr. Miller Dee Freeman Secretary The Wilmington Regional Office received a complete modified Stormwater Management Permit Application and Renewal request for Smith Creek Station on October 3, 2007. Staff review of the plans and specifications has determined that the project, as proposed, will comply with the Stormwater Regulations set forth in Title 15A NCAC 2H.1000. We are forwarding Permit No. SW8 970105 dated November 23, 2009, for the construction of Smith Creek Station. This permit shall be effective from the date of issuance until March 11, 2017, and shall be subject to the conditions and limitations as specified therein. Please pay special attention to the Operation and Maintenance requirements in this permit. Failure to establish an adequate system for operation and maintenance of the stormwater management system will result in future compliance problems. If any parts, requirements, or limitations contained in this permit are unacceptable, you have the right to request an adjudicatory, hearing upon written request within thirty (30) days following receipt of this permit. This request must be in the form of a written petition, conforming to Chapter 150B of the North Carolina General Statutes, and filed with the Office of Administrative Hearings, P.O. Drawer 27447, Raleigh, NC 27611-7447. Unless such demands are made this permit shall be final and binding. If you have any questions, or need additional information concerning this matter, please contact Linda Lewis or me at (910) 796-7215. Sincerely, / C sic Georgett cott Stormwater Supervisor Division of Water Quality GDS/arl: S:\WQS\STORMWATER/PERMIT\970105REN.nov09 cc: John Kuske, P.E., Norris Kuske & Tunstall New Hanover County Building Inspections Beth Wetherill, New Hanover County Engineering Wilmington Regional Office Stormwater File Central Files Wilmington Regional Office 127 Cardinal Drive Extension, Wilmington, North Carolina 28405 One Phone: 910-796.7215 \ FAX: 910.350-2004 \ Customer Service: 1-877623-6748 NorthCarolina Internet:w .ncwatamuality.org a a ura//I, An Equal Opportunity l AKrmative Action Employer ��/Lt` `!!"/✓,/ State Stormwater Management Systems Permit No. SW8 970105 STATE OF NORTH CAROLINA DEPARTMENT OF ENVIRONMENT AND NATURAL RESOURCES DIVISION OF WATER QUALITY STATE STORMWATER MANAGEMENT PERMIT HIGH DENSITY DEVELOPMENT In accordance with the provisions of Article 21 of Chapter 143, General Statutes of North Carolina as amended, and other applicable Laws, Rules, and Regulations PERMISSION IS HEREBY GRANTED TO Smith Creek Station, LLC Smith Creek Station Racine Drive & Eastwood Road, Wilmington, New Hanover County FOR THE construction, operation and maintenance of two wet detention ponds in compliance with the provisions of 15A NCAC 2H .1000 (hereafter referred to as the "stormwater rules') and the approved stormwater management plans and specifications and other supporting data as attached and on file with and approved by the Division of Water Quality and considered a part of this permit. This permit shall be effective from the date of issuance until March 11, 2017, and shall be subject to the following specified conditions and limitations: I. DESIGN STANDARDS This permit is effective only with respect to the nature and volume of stormwater described in the application and other supporting data. This stormwater system has been approved for the management of stormwater runoff as described in Section 1.5 of this permit. Pond 1 and Pond 2, the permitted stormwater controls, have been designed to handle the runoff from a maximum of 688,248 square feet of built -upon area and 708,286 square feet of built -upon area, respectively. Approved plans and specifications for this project are incorporated by reference and are enforceable parts of the permit. 4. The tract will be limited to the amount of built -upon area indicated in Section 1.2 and Section 1.5 of this permit, and per approved plans. Page 2 of 9 State Stormwater Management Syst@ms Permit No. SW8 970105 The following design elements have been permitted for the wet detention ponds 1 and 2 and must be maintained at design condition: POND 1 POND 2 a. Drainage Area, acres 18.65 9.32 (square feet) (812,394) (841,579) b. Total Impervious Surfaces, ft2: 688,248 708,286 Outparcel1A 119,572 -0- Outparcel2A 110,251 -0- Outparcel 3R -0- 49,005 Outparcel4A 80,760 -0- Outparcel 5R -0- 40,772 Outparcel 6R -0- 43,516 Tract 1R 364,597 49,658 Tract 3 -0- 156,816 Tract 2-A2 -0- 73,900 Tract 2R 13,068 274,428 Future -0- 20,191 c. Pond Design Depth, feet: 7.5 7.5 d. Permanent Pool Elevation, FMSL: 33.1 34 e. Provided Surface Area, ft2: 32,400 37,000 f. Provided Storage Volume, ft': 62,190 62,480 g. Temporary Storage Elevation, FMSL: 34.9 35.6 h. Controlling Orifice: 3.5" cp pipe 3.5" cp pipe i. Name of Receiving Stream/Index #: Smith Creek / (CFR 18-74-63 ) j. Classification of Water Body: "C Sw" II. SCHEDULE OF COMPLIANCE The stormwater management system shall be constructed in its entirety, vegetated and operational for its intended use prior to the construction of any built -upon surface. 2. During construction, erosion shall be kept to a minimum and any eroded areas of the system will be repaired immediately. 3. The permittee shall at all times provide the operation and maintenance necessary to assure the permitted stormwater system functions at optimum efficiency. The approved Operation and Maintenance Plan must be followed in its entirety and maintenance must occur at the scheduled intervals including, but not limited to: a. Semiannual scheduled inspections (every 6 months). b. Sediment removal. C. Mowing and revegetation of side slopes. d. Immediate repair of eroded areas. e. Maintenance of side slopes in accordance with approved plans and specifications. f. Debris removal and unclogging of outlet structure, orifice device and catch basins and piping. g. Access to the outlet structure must be available at all times. h. The vegetated filter will be maintained with grass and with no erosion. The spreader mechanism will be kept free of sediment and trash, and must distribute the runoff evenly across the width of the filter. Records of maintenance activities must be kept and made available upon request to authorized personnel of DWQ. The records will indicate the date, activity, name of person performing the work and what actions were taken. Page 3 of 9 State Stormwater Management Systems Permit No. SW8 970105 5. Decorative spray fountains are allowed in the stormwater treatment system, subject to the following criteria: a. The fountain must draw its water from less than 2' below the permanent pool surface. b. Separated units, where the nozzle, pump and intake are connected by tubing, may be used only if they draw water from the surface in the deepest part of the pond. c. The falling water from the fountain must be centered in the pond, away from the shoreline. d. The maximum horsepower for the fountain's pump is based on the permanent pool volume. The maximum pump power for a fountain in Pond 1 is'/2 HP and for Pond 2 is % HP. 6. The facilities shall be constructed as shown on the approved plans. This permit shall become voidable unless the facilities are constructed in accordance with the conditions of this permit, the approved plans and specifications, and other supporting data. 7. Upon completion of construction, prior to issuance of a Certificate of Occupancy, and prior to operation of this permitted facility, a certification must be received from an appropriate designer for the system installed certifying that the permitted facility has been installed in accordance with this permit, the approved plans and specifications, and other supporting documentation. Any deviations from the approved plans and specifications must be noted on the Certification. 8. If the stormwater system was used as an Erosion Control device, it must be restored to design condition prior to operation as a stormwater treatment device, and prior to occupancy of the facility. 9. The following items will require a modification to the permit: a. Any revision to the approved plans, regardless of size. b. Project name change. C. Transfer of ownership. d. Redesign or addition to the approved amount of built -upon area. e. Further subdivision, acquisition, or sale of the project area. The project area is defined as all property owned by the permittee, for which Sedimentation and Erosion Control Plan approval was sought. f. Filling in, altering, or piping of any vegetative conveyance shown on the approved plan. 10. The Director may determine that other revisions to the project should require a modification to the permit. 11. A copy of the approved plans and specifications shall be maintained on file by the Permittee for a minimum of ten years from the date of the completion of construction. 12. Prior to the sale of any portion of the property, an access/maintenance easement to the stormwater facilities shall be granted in favor of the permittee if access to the stormwater facilities will be restricted by the sale of any portion of the property. 13. The permittee is responsible for verifying that the proposed built -upon area does not exceed the allowable built -upon area. 14. The runoff from all built -upon area on the project must be directed into the permitted stormwater control system. 15. The Director may notify the permittee when the permitted site does not meet one or more of the minimum requirements of the permit. Within the time frame specified in the notice, the permittee shall submit a written time schedule to the Director for modifying the site to meet minimum requirements. The permittee shall provide copies of revised plans and certification in writing to the Director that the changes have been made. Page 4 of 9 State Stormwater Management Systems Permit No. SW8 970105 16. Prior to the sale of any lot, the following deed restrictions must be recorded: a. The following covenants are intended to ensure ongoing compliance with State Stormwater Management Permit Number SW8 970105, as issued by the Division of Water Quality under NCAC 2H.1000. b. The State of North Carolina is made a beneficiary of these covenants to the extent necessary to maintain compliance with the Stormwater Management Permit. C. These covenants are to run with the land and be binding on all persons and parties claiming under them. d. The covenants pertaining to stormwater may not be altered or rescinded without the express written consent of the State of North Carolina, Division of Water Quality. e. Alteration of the drainage as shown on the approved plans may not take place without the concurrence of the Division of Water Quality. f. The maximum built -upon area per lot, in square feet, is as follows: Total BUA Pond 1 BUA Pond 2 BUA Total BUA Pond 1 BUA Pond 2 BUA OP 1A 119,752 119,572 -0- OP 2A 110,251 110,251 -0- OP 3R 49,005 -0- 49,005 OP 4A 80,760 80,760 -0- OP 5R 40,772 -0- 40,772 OP 6R 43,516 -0- 43,516 Tract 1 R 414,255 364,597 49,658 Tract 3 156,816 -0- 156,816 Tract 2-A2 73,900 -0- 73,900 Tract 2R 287,496 13,068 274,428 This allotted amount includes any built -upon area constructed within the lot property boundaries, and that portion of the right-of-way between the front lot line and the edge of the pavement. Built upon area includes, but is not limited to, structures, asphalt, concrete, gravel, brick, stone, slate, coquina and parking areas, but does not include raised, open decking, or the water surface of swimming pools. g. All runoff on the lot must drain into the permitted system. This may be accomplished through providing roof drain gutters, which drain to the street, grading the lot to drain toward the street, or grading perimeter swales and directing them into the pond or street. Lots that will naturally drain into the system are not required to provide these measures. h. Built -upon area in excess of the permitted amount will require a permit modification. i. Each lot within the subdivision whose ownership is not retained by the permittee, must submit a separate Offsite Stormwater Management Permit application package to the Division of Water Quality and receive a permit prior to any construction on the lot. 17. A copy of the recorded deed restrictions must be submitted to the Division within 30 days of the date of recording the plat, and prior to selling lots. The recorded copy must contain all of the statements above, the signature of the Permittee, the deed book number and page, and the stamp/signature of the Register of Deeds. III. GENERAL CONDITIONS This permit is not transferable to any person or entity without approval from the Division. At least 30 days prior to the sale of the project, or a change or ownership, or a name change of the Permittee or project, or a mailing address change, the permittee shall submit a completed and signed Name/Ownership Change form to the Division of Water Quality accompanied by the applicable documentation as listed on page 2 of the form. The approval of this request will be considered on its merits and may or may not be approved. 2. Failure to abide by the conditions and limitations contained in this permit may subject the Permittee to enforcement action by the Division of Water Quality, in accordance with North Carolina General Statute 143-215.6A to 143-215.6C. Page 5 of 9 State Stormwater Management Systems Permit No. SW8 970105 3. The issuance of this permit does not preclude the Permittee from complying with any and all statutes, rules, regulations, or ordinances which may be imposed by other government agencies (local, state, and federal) which have jurisdiction. 4. In the event that the facilities fail to perform satisfactorily, including the creation of nuisance conditions, the Permittee shall take immediate corrective action, including those as may be required by this Division, such as the construction of additional or replacement stormwater management systems. 5. The permittee grants DENR Staff permission to enter the property for the purpose of inspecting all components of the permitted stormwater management facility. 6. The permit may be modified, revoked and reissued or terminated for cause. The filing of a request for a permit modification, revocation and reissuance or termination does not stay any permit condition. 7. Unless specified elsewhere, permanent seeding requirements for the stormwater control must follow the guidelines established in the North Carolina Erosion and Sediment Control Planning and Design Manual. 8. The permittee shall submit a permit renewal application and fee to the Division at least 180 days prior to the expiration date of this permit. Permit renewed and issued this the 23rd day of November 2009. NORTH CAROLINA ENVIRONMENTAL MANAGEMENT COMMISSION \/ ) CY(.my for ColeenAullins, Director Division of Water Quality By Authority of the Environmental Management Commission Permit Number SW8 970105 Page 6 of 9 State Stormwater Management Systems Permit No. SW8 970105 Smith Creek Station Stormwater Permit No. SW8 970105 New Hanover County Designer's Certification I, , as a duly registered in the State of North Carolina, having been authorized to observe (periodically/weekly/full time) the construction of the project, for (Project Owner) hereby state that, to the best of my abilities, due care and diligence was used in the observation of the project construction such that the construction was observed to be built within substantial compliance and intent of the approved plans and specifications. The checklist of items on page 2 of this form is included in the Certification. Noted deviations from approved plans and specification: Signature Registration Number Date SEAL Page 7 of 9 State Stormwater Management Systems Permit No. SW8 970105 Certification Requirements: 1. The drainage area to the system contains approximately the permitted acreage. 2. The drainage area to the system contains no more than the permitted amount of built -upon area. 3. All the built -upon area associated with the project is graded such that the runoff drains to the system. 4. The outlet/bypass structure elevations are per the approved plan. 5. The outlet structure is located per the approved plans. 6. Trash rack is provided on the outlet/bypass structure. 7. All slopes are grassed with permanent vegetation. 8. Vegetated slopes are no steeper than 3:1. 9. The inlets are located per the approved plans and do not cause short-circuiting of the system. 10. The permitted amounts of surface area and/or volume have been provided. 11. Required drawdown devices are correctly sized per the approved plans. 12. All required design depths are provided. 13. All required parts of the system are provided, such as a vegetated shelf, and a forebay. 14. The overall dimensions of the system, as shown on the approved plans, are provided. cc: NCDENR-DWQ Regional Office Tony Roberts, New Hanover County Building Inspector Page 8 of 9 State Stormwater Management Systems Permit No. SW8 970105 Master Permit No. SW8 Master permit #970105 Lot # from Master Permit Drains to Pond # Offsite Permit No. Date Issued Offsite Project Name Allocated BUA Proposed BUA OP 1A 1 SW8070315 Mar23, 2007 Hampton Inn 119,572 119,572 OP 2A 1 Plan Revision Future Development 110,251 64,905 OP 313 2 SW8 000840 Sep 27, 2000 Alpha Graphics 49,005 49,005 OP 4A 1 SW8 000719 Nov 1, 2007 Land Rover 80,760 44,800 OP 5R 2 40,772 OP 6R 2 43,516 Tract 1 R Pond 1 Pond 2 SW8 071007 Nov 29, 2007 Home Depot 364597 49,658 364,597 49,658 Tract 3 2 Plan Revision Gold's Gym 156.816 139,392 Tract 2-A2 2 Plan Revision Retail Shops 73,900 73900 Tract 2R Pond 1 Pond 2 SW8 071008 Dec 7, 2007 Kohl's 13,068 274,428 13,068 274,428 Page 9 of 9 NKT #05203 - Smith Creek Station State of North Carolina Department of Environment and Natural Resources Division of Water Quality �Q17ew 4 STORM WATER MANAGEMENT PERMIT APPLICATION FORM T his forin may be photocopied for use as an original 1. GENERAL INFORMATION 1. Applicants name (specify the name of the corporation, individual, etc. who owns the project): Smith Creek Station, LLC 2. Print Owner/Signing Official's name and title (person legally responsible for facility and compliance): H. E. Miller, III, Manager 3. Mailing Address for person listed in item 2 above: P.O. Box 2046 Telephone Number: (91 114 State: NC Zip: ZS4UZ 4. Project Name (subdivision, facility, or establishment name — should be consistent with project name on plans, specifications, letters, operation and maintenance agreements, etc.): Smith Creek Station 5. Location of Project (street address): Smith Creek Station Shopping Center is located in the Wilmington City limits off of Old Eastwood Road, Racine Drive and Government Drive (formerly Market Place Drive) County: New Hanover 6. Directions to project (from nearest major intersection): Approximately 0.30 miles east from the intersection of US Hwy. 17 / Market Street and US Hwy. 74 / Eastwood Road 7. Latitude: 340 14' 40"N Longitude: 770 51' 50"W of project 8. Contact person who can answer questions about the project: Name: John A. Kuske, III, P.E. Telephone Number: (910) 343-9653 11. PERMIT INFORMATION 1. Specify whether project is (check one): New Renewal X Modification �E C E B V ED Form sWu-101 version 3.99 Page 1 of OnU{ OCT 0 3 2007 DWQ PROJ # 2. If this application is being submitted as the result of a renewal or modification to an existing permit, list the Existing permit number SW8 970105 And its issue date (if known) June 15, 2000 3. Specify the type of project (check one): Low Density X High Density Redevelop General Permit Other 4. Additional Project Requirements (check applicable blanks): CAMA Major X Sedimentation/Erosion Control 404/401 Permit NPDES Stormwater Information on required state permits can be obtained by contacting the Customer Service Center at 1-877-623-6748. Ill. PROJECT INFORMATION In the space provided below, summarize how stormwater will be treated. Also attach a detailed narrative (one to two pages) describing stormwater management for the project. Stormwater runoff will be treated in two (2) existing stormwater ponds designed for 90% TSS removal, which are approved under State Stormwater Permit No. SW8 970105. 2. Stormwater runoff from this project drains to the Cape Fear River Basin. 3. Total Project Area: 37.97 AC 4. Project Built Upon Area: 84.72% Pond No. 1 % 18.65 AC Pond No. 1 19.32 AC Pond No. 2 84.16% Pond No. 2 5. Flow many drainage areas does the project have? 2 6. Complete the following information for each drainage area. If there are more than two drainage areas in the project, attach an additional sheet with the information for each area provided in the same format as below. Pnnd Nn 1 Pnnri Nn 2 Basin Information Drainage Area I Drainage Area 2 Receiving Stream Name Smith Creek Smith Creek Receiving Stream Class C-SW C-SW Drainage Area 812,394 SF / 18.65 AC 841,579 SF / 19.32 AC Existing Impervious * Area 571,873 SF / 13.12 AC 649,478 SF / 14.90 AC Proposed Impervious* Area or Future 116,375 SF / 2.68 AC 38,617 SF / 0.90 AC % Impervious* Area total 84.72% Impervious* Surface Area Drainage Area I Drainage Area 2 On -site Buildings On -site Streets On -site Parkin On -site Sidewalks Qtker-eH-site Unallocated I Extra BUA 20,191 SF 10.46 AC Off -site Total: 688,248 SF / 15.80 AC I Total: 708,286 SF / 16.26 AC * Impervious area Is defined as the built upon area including, but not limited to, buildR,roa%, pt%rkdhgWrecE D sidewalks, gravel areas, etc. IlfnuS OCT 0 3 2007 Form SWU-101 Version 3.99 Page 2 of 4 PROD# DWO I -low was the off -site impervious area listed above derived? N/A IV. DEED RESTRICTIONS AND PROTECTIVE COVENANTS The following italicized deed restrictions and protective covenants are required to be recorded for all subdivisions, outparcels and future development prior to the sale of any lot. If lot sizes vary significantly, a table listing each lot number, size and the allowable built -upon area for each lot must be provided as an attachment. i. The following covenants are intended to ensure ongoing compliance with state stormwater management permit number as issued by the Division of Water Quality. These covenants may not be changed or deleted without the consent of the State. 2. No more than square feet ofany lot shall be covered by structures or impervious materials. Impervious materials include asphalt, gravel, concrete, brick, stone, slate or similar material but do not include wood decking or the water surface ofswinnning pools. 3. Snvales shall not be filled in, piped, or altered except as necessary to provide driveway crossings. 4. Builbupon area in excess of the permitted amount requires a state stormwater management permit modification prior to construction. 5. All permitted runofffrom outparcels or fmdure development shall be directed into the permitted stormwater control system. These connections to the stornnvater control system shall be performed in a manner that maintains the integrity and performance of the system as permitted. By your signature below, you certify that the recorded deed restrictions and protective covenants for this project shall include all the applicable items required above, that the covenants will be binding on all parties and persons claiming under them, that they will run with the land, that the required covenants cannot be changed or deleted without concurrence from the State, and that they will be recorded prior to the sale of any lot. V. SUPPLEMENT FORMS The applicable state stormwater management permit supplement form(s) listed below must be submitted for each BMP specified for this project. Contact the Stormwater and General Permits Unit at (919) 733-5083 for the status and availability of these forms. Form SWU-102 Form SWU-103 Form SWU-104 Form SWIJ-105 Form SWU-106 Form SWIJ-107 Form SWU-108 Form SWU-109 Wet Detention Basin Supplement Infiltration Basin Supplement Low Density Supplement Curb Outlet System Supplement Off -Site System Supplement Underground Infiltration Trench Supplement Neuse River Basin Supplement Innovative Best Management Practice Supplement Form SWU-101 Version 3.99 Page 3 of 4 VI.' SUBMITTAL REQUIREMENTS Only complete application packages will be accepted and reviewed by the Division of Water Quality (DWQ). A complete package includes all of the items listed below. The complete application package should be submitted to the appropriate DWQ Regional Office. Please indicate that you have provided the following required information by initialing in the space provided next to each item. • Original and one copy of the Stormwater Management Permit Application Form • One copy of the applicable supplement form(s) for each BMP • Permit application processing fee of $42"payable to NCDENR) D U� • Detailed narrative description of stormwater treatment / management • Two copies of plans and specifications, including: - Development / Project name - Engineer and firm - Legend - North arrow - Scale - Revision number & date - Mean high water line - Dimensioned property / project boundary - Location map with named streets or NCSR numbers - Original contours, proposed contours, spot elevations, finished floor elevations - Wetlands delineated, or a note on plans that none exist - Existing drainage (including off -site), drainage easements, pipe sizes, runoff calculations - Drainage areas delineated - Vegetated buffers (where required) VII. AGENT AUTHORIZATION If you wish to designate authority to another individual or firm so that they may provide information on your behalf, please complete this section. John A. Kuske, III, P.E. Designated agent (individual or firm): Norris, Kuske & Tunstall Consulting Engineers, Inc. Mailing Address 902 Market Street City: Wilmington State: NC Zip: 28401 Phone: (910) 343-9653 Fax: (910) 343-9604 Vlll. APPLICANT,s CERTIFICATION I, (print or type name of person listed in General Information, itent 2) H. E. Miller, III, Manager Certify that the information included on this permit application form is, to the best of my knowledge, correct and that the project will be constructed in conformance with the approved plans, that the required deed restrictions and protective covenants will be recorded, and that the proposed project complies with the requirements of 15A NCAC 2 H.1000. ytt Signature: Date: AA Or] �E C E 1 11 ED Form SWU-101 Version 3.99 Page 4 of 4 Iuu�,SOu OCT 0 3 2007 DWQ PROJ # STORMWATER SYSTEM NARRATIVE SMITH CREEK STATION - MODIFICATION TO MASTER STATE STORMWATER PERMIT NO. SW8 970105 LAND ROVER CAPE FEAR- MODIFICATION AND NAME CHANGE TO STATE STORMWATER OFF -SITE SYSTEM PERMIT NO. SW8 000719 HAMPTON INN - NEW STATE STORMWATER OFF -SITE SYSTEM PERMIT THE HOME DEPOT - NEW STATE STORMWATER OFF -SITE SYSTEM PERMIT KOHL'S DEPARTMENT STORE - NEW STATE STORMWATER OFF -SITE SYSTEM PERMIT WILMINGTON, NORTH CAROLINA APPROVED NORTH CAROLINA ENVIRONMENTAL MANAGEMENT COMMISSION DIVISION OF WATER QUALITY 23-X,W' OW 9 February 2007 Prepared by: 1?ecv(�l NORRIS, KUSKE & TUNSTALL CONSULTING ENGINEERS, INC. 902 Market Street Wilmington, North Carolina 28401 (910)343-9653 (910) 343-9604 (Fax) E-mail: office@nkteng.com NKT Project No. 05203 & 05208 NARRATIVE PROJECT SITE DESCRIPTION: Smith Creek Station is an existing shopping center site within the Wilmington City limits in New Hanover County, NC. The total shopping center site area is approximately 37.97 acres. The shopping center has multiple property owners, which will be discussed in more detail in the stormwater permitting section of this narrative. The majority of the shopping center site area is currently developed with the exception of two (2) new outparcels and one (1) vacant building pad between two (2) existing buildings. The two (2) new outparcels were created from two (2) existing outparcels and a portion of the shopping center property, which is owned by the shopping center developer. The existing developed portions of the shopping center, the two (2) new outparcels and the vacant building pad are shown in more detail on the attached exhibit maps. The 37.97 acre shopping center site has access to Old Eastwood Road, Racine Drive and Market Place Drive, which are all owned and maintained by the City of Wilmington. The existing and proposed access driveways are shown in more detail on the attached exhibit maps. STORMWATER MANAGEMENT MEASURES: The stormwater management measures for the 37.97 acre shopping center site include an existing storm drain pipe system and two (2) existing stormwater ponds. The two (2) existing stormwater ponds were designed to meet the City of Wilmington Stormwater Ordinance and the NC DENR State Stormwater Regulations. The Master State Stormwater Permit for the shopping center stormwater management system is SW8 970105. The Master Stormwater Permit is issued to the shopping center developer, Smith Creek Station, LLC. The two (2) existing stormwater ponds treat the stormwater runoff from the total 37.97 acre shopping center site and drainage area. The drainage area associated with Stormwater Pond No. 1 is 18.65 acres. Stormwater Pond No. 1 is approved to treat runoff from a total impervious area equal to 688,248 SF / 15.80 acres as approved in Master State Stormwater Permit No. SW8 970105. The drainage area associated with Stormwater Pond No. 2 is 19.32 acres. Stormwater Pond No. 2 is approved to treat runoff from a total impervious area equal to 708,286 SF / 16.26 acres as approved in Master State Stormwater Permit No. SW8 970105. The drainage area to each stormwater pond is shown on the attached exhibit maps. STORMWATER PERMITTING: Stormwater Pond No. 1 and Stormwater Pond No. 2 were permitted in accordance with the City of Wilmington Stormwater Ordinance and the State Stormwater Regulations. The existing stormwater ponds are part of the shopping center stormwater management system approved in Master State Stormwater Permit No. SW8 970105. Outparcels and tracts of land owned by others are permitted under a State Stormwater Off -Site System Permit or will be permitted under a new State Stormwater Off -Site System Permit as shown on the attached summaries exhibit maps. The remaining portion of the narrative will focus on State Stormwater permitting and property ownership. Two (2) State Stormwater permitting summaries will be outlined as follows. The first summary titled "Existing State Stormwater Permitting Summary — Exhibit Map A", will explain and outline how the shopping center site is currently permitted. State Stormwater permit modifications and / or new State Stormwater permits are now required due to changes in property ownership and deviations from the original approved plan. Therefore, the second summary titled 'Proposed State Stormwater Permit Summary — Exhibit Map B" will outline and explain the State Stormwater permit modifications and / or new State Stormwater permits now required. The second summary will accurately reflect the new property owners and will also show the deviations from the original approved plan. The exhibit maps show the owner of each tract of property or outparcel and the area which makes up the total 37.97 acre shopping center site area. The shopping center developer, Smith Creek Station, LLC, will continue to hold Master State Stormwater Permit No. SW8 970105. However, the Master State Stormwater Permit No. SW8 970105 will be modified to reflect the changes in property ownership. The new property owners will be applying for a State Stormwater Off -Site System Permit. The required permit applications, application fees, calculations, revised / new deed restrictions and other supporting documentation for the State Stormwater permit modifications and the new State Stormwater Off -Site System permits will be submitted as one (1) review package as discussed in the preliminary scoping meeting with Cameron Weaver, NC DENR Express Permitting Coordinator. We are requesting that the Master State Stormwater Permit SW8 970105 and the Hampton Inn State Stormwater Off -Site System permit be reviewed and approved first since the Hampton Inn is the only project being constructed at this time. The remaining permit applications are for existing facilities or proposed future development. STATE STORMWATER PERMITTING SITE DATA: • Total Shopping Center Site Area: • Total Shopping Center Drainage Area: • Stormwater Pond No. 1 Drainage Area: • Total Impervious Area Allowed / Approved for Stormwater Pond No. 1 per Master Stormwater Permit No. 970105: • Stormwater Pond No. 2 Drainage Area: • Total Impervious Area Allowed / Approved for Stormwater Pond No. 2 per Master Stormwater Permit No. 970105 37.97 AC 37.97 AC 18.65 AC 15.80 AC / 688,248 SF 19.32 AC 16.26 AC / 708.286 SF nE C E I V ED ���u;SUUU OCT 0 3 2007 DWQ PROJ N EXISTING STATE STORMWATER PERMITTING SUMMARY — EXHIBIT MAP A Note: See Exhibit Map A Attached Property Tract No., Total State Stormwater Drains to Total Impervious State Stormwater Owner / Tract Name Area Permit No. Stormwater Area per Master Permit Status Permittee or Pond No. Permit No. Outparcel No. SW8 970105 and Use Smith Creek Shopping 15.01 AC Master Permit No. Pond No. 1 12.52 AC / Master Permit Station, LLC Center Area SW8 970105 545,546 SF Modification Required Including Pond No. 1 L. Rover, LLC Outparcel No. 1.02 AC Off -Site Discharge Pond No. 1 90% @ 0.92 AC / Off -Site Discharge 4A Permit No. SW8 39,988 SF Permit Name Change Land Rover 000719 Required L. Rover, LLC Outparcel No. 1.04 AC Off -Site Discharge Pond No. 1 90% @ 0.94 AC / Off -Site Discharge 4B Permit No. SW8 40,772 SF Permit Name Change Land Rover 000719 Required Smith Creek Outparcel No. 0.50 AC Master Permit No. Pond No. 1 90% @ 0.45 AC / Master Permit Station, LLC 1 SW8 970105 19,602 SF Modification Required (Vacant) for New Off -Site Discharge Permit Smith Creek Outparcel No. 1.08 AC Master Permit No. Pond No. 1 90% @ 0.97 AC / Master Permit Station, LLC 2 (Vacant) SW8 970105 42,340 SF Modification Required for New Off -Site Discharge Permit nE C E 1 V ED W OCT032007 Dw PROJ C -��� Summary —Exhibit Map A —Page 1 j1E C E 1 V ED llln�l OCT 0 3 2007 oe", - DWQ Property No., Total State Stormwater Drains to Total Impervious State Stormwater Owner / Tract Name Area Permit No. Stormwater Area per Master Permit Status Permittee or Pond No. Permit No. SW8 Outparcel No. 970105 and Use 18.65 AC 15.80 AC / 688,248 TOTALS: Total Pond SF No. 1 Total Pond No. 1 Drainage Impervious Area Area Allowed Smith Creek Shopping Master Permit No. Pond No. 2 13.20 AC / Master Permit Station, LLC Center Area 15.92 AC SW8 970105 574,933 SF Modification Required Including Pond No. 2 Stone Outparcel No. 1.25 AC Off -Site Discharge Pond No. 2 90% @ 1.13 AC / No Change Required Investments, 3 (Alpha Permit No. SW8 49,005 SF LLC Graphics) 000840 88 SOHO, LLC Outparcel No. 1.04 AC Off -Site Discharge Pond No. 2 90% @ 0.94 AC / No Change Required 5 (Hiro Permit No. SW8 40,772 SF Japanese 021113 Steakhouse Texas Outparcel No. 1.11 AC Off -Site Discharge Pond No. 2 90% @ 0.99 AC / No Change Required Roadhouse 6 (Texas Permit No. SW8 43,516 SF Holdings, LLC Roadhouse 000418 Restaurant 19.32 AC 16.26 AC / Total 708,226 SF TOTALS: Pond No. Total Allowed 2 Pond No. 2 Drainage Impervious Area Area Summary — Exhibit Map A — Page 2 PROPOSED STATE STORMWATER PERMITTING SUMMARY — EXHIBIT MAP B Note: See Exhibit Map B Attached Property Tract No., Total State Stormwater Drains to Tract or State Stormwater Owner / Tract Name Area Permit No. Stormwater Outparcel Permit Status Permittee or Pond No. Impervious Area Outparcel No. for Master Permit and Use No. SW8 970105 Modification Smith Creek Outparcel 4B 1.30 AC Master Permit No. Pond No. 1 N/A Master Permit Station, LLC Pond No. 1 SW8 970105 Modification Required CLOS Outparcel No. 2.06 AC Off -Site Discharge Pond No. 1 90% @ 2.06 AC = Off -Site System Permit Properties, LLC 4A Permit No. SW8 1.85 AC / 80,760 SF Name Change (Land Rover) 000719 Existing: Required 1.03 AC / 44,800 SF Eastwood Outparcel No. 3.05 AC New Off -Site Pond No. 1 90% @ 3.05 AC = Master Permit Hotel Group, 1A System Permit Will 2.75 AC / 119,572 Modification Required LLC (Proposed be Obtained SF to Obtain New Off -Site Hampton Inn) System Permit for New Owner Smith Creek New Outparcel 2.82 AC Master Permit No. Pond No. 1 90% of 2.82 AC = Master Permit Station, LLC No. 2A SW8 970105 2.53 AC / 110,251 Modification Required Vacant SF HD Portion of Tract 10.26 AC New Off -Site 9.05 AC 8.37 AC / 364,597 Master Permit Development No. 1 R (3`d Total Area System Permit will Drains to SF Modification Required of Maryland, Revision) 9.05 AC be Obtained Pond No. 1 to Obtain New Off -Site Inc. (Home Depot) Drains to System Permit for New Pond No. Owner 1 Summary — Exhibit Map B — Page 1 Property Tract No., Total State Stormwater Drains to Total Impervious State Stormwater Owner / Tract Name Area Permit No. Stormwater Area per Master Permit Status Permittee or Pond No. Permit No. SW8 Outparcel No. 970105 and Use Kohl's Portion of Tract 7.76 AC New Off -Site 0.37 AC 0.30 AC / 13,068 Master Permit Department No. 2R Total Area System Permit will Drains to SF Modification Required Store, Inc. (Kohl's) 0.37 AC be Obtained Pond No. 1 to Obtain New Off -Site Drains to System Permit for New Pond No. Owner 1 18.65 AC Total Impervious Total Area to Pond No. 1 Pond No. = 15.80 AC / TOTALS: 1 688,248 SF vs. Total Drainage Impervious Area Area Allowed to Pond No. 1=15.80AC/ 688,248 SF Smith Creek Tract 3 Master Permit No. Pond No. 2 3.60 AC / 156,816 Master Permit Station, LLC (Revision) 5.15 AC SW8 970105 SF (Including Modification Required (Future Future Building Building Pad, Pad) Gold's Gym, Pond No. 2 Smith Creek Tract #2-A2 2.04 AC Master Permit No. Pond No. 2 1.70 AC / 73,900 Master Permit Station, LLC (Existing SW8 970105 SF Modification Required Shops) HD Portion of Tract 10.26 AC New Off -Site 1.21 AC 1.14 AC / 49,658 Master Permit Development No. 1 R (3"' Total Area System Permit will Drains to SF Modification Required of Maryland, Revision) 1.21 AC be Obtained Pond No. 2 to Obtain New Off -Site Inc. (Home Depot) Drains to System Permit for New Pond No. Owner 2 Summary — Exhibit Map B — Page 2 Property Tract No., Total State Stormwater Drains to Total Impervious State Stormwater Owner / Tract Name Area Permit No. Stormwater Area per Master Permit Status Permittee or Pond No. Permit No. SW8 Outparcel No. 970105 and Use Stone Outparcel No. 1.25 AC Off -Site System Pond No. 2 90% @ 1.25 AC = No Change Required Investments, 3R Permit No. SW8 1.12 AC / 49,005 LLC (Alpha 000840 SF Graphics) 88 SOHO, LLC Outparcel No. 1.17 AC Off -Site System Pond No. 2 80% @ 1.17 AC = No Change Required 5R (Hiro Permit No. SW8 0.94 AC / 40,772 Japanese 021113 SF Steakhouse Texas Outparcel No. 1.11 AC Off -Site System Pond No. 2 90% @ 1.11 AC = No Change Required Roadhouse 6 (Texas Permit No. SW8 1.00 AC / 43,516 Holdings, LLC Roadhouse 000418 SF Restaurant Kohl's Portion of Tract 7.76 AC New Off -Site 7.39 AC 6.30 AC / 274,428 Master Permit Department No. 2R Total Area System Permit will Drains to SF Modification Required Store, Inc. (Kohl's) 7.39 AC be Obtained Pond No. 2 to Obtain New Off -Site Drains to System Permit for New Pond No. Owner 2 Summary — Exhibit Map B — Page 3 Property Owner / Permittee Tract No., Tract Name or Outparcel No. and Use Total Area State Stormwater Permit No. Drains to Stormwater Pond No. Total Impervious Area per Master Permit No. SW8 970105 State Stormwater Permit Status 19.32 AC Total Impervious Total Pond No. Area to Pond 2 Drainage No. 2 = 15.80 Area AC / 688,095 SF TOTALS: vs. Total Impervious Allowed to Pond No. 2 = 16.26 AC / 708,286 SF, OK! Remaining Impervious Area = 0.46 AC / 20,191 SF DECEIVED OCT 0 3 2007 DWa Summary — Exhibit Map B — Page 4 pROJ# -------- , NORRIS, KUSKE &TUNSTALL CONSULTING ENGINEERS, INC. Aa�� October 3, 2007 Mr. Cameron Weaver, Express Review Coordinator NC DENR / Division of Water Quality 127 Cardinal Drive Extension Wilmington, NC 28405-3845 Re: State Stormwater Permit Express Review Submittal Smith Creek Station - Modification to Master NC DENR Permit No. SW8 970105, Dated June 15, 2000 & 3 Off -Site Permits for Existing Uses (Land Rover, Kohl's & The Home Depot) 124 Old Eastwood Road Wilmington, NC NKT Project No. 05203 Dear Mr. Weaver: J. Phillip Norris, P.E. John A. Kuske, III, P.E. John S. Tunstall, P.E. J.A. Kuske, P.E. of Counsel Enclosed are two (2) sets of plans for the subject Smith Creek Station - Modification to Master Permit No. SW8 970105 project, one (1) copy of the stormwater narrative, one (1) copy of deed restrictions, one (1) copy of the Articles of Organization and the original Division of Water Quality Stormwater Management Permit application with attachments. Please note that per Chris Baker, there is no express permit review fee for the subject submittal. Also enclosed for the three (3) off -site permit submittals listed below are two (2) sets of plans, the original Division of Water Quality Stormwater Management Permit application, the original SWU-106 supplement form and a $2,000.00 check for the express permit review fee. • Land Rover Cape Fear — Smith Creek Station Outparcel No. 4A • The Home Depot— Smith Creek Station Tract No. 1 R (3 ° Revision) • Kohl's Department Store Please review this information for approval and contact us with any questions or comments you may have. Thank you for your assistance on this project. Sincerely, NORRIS, KUSKE & TUNSTALL CONSULTING ENGINEERS, INC. IT a�o►� Joh%LLke, III, P.E. JAKII I/asn 05203 10-03-07-s•sw express-ttr Enclosures cc: H. E. Miller, III / Smith Creek Station, LLC Hill Rogers / Cameron Company j�E C E 1 V ED IO�,us OCT 0 3 2007 DWQ PROJ # 902 Market Street • Wilmington, NC 28401-4733 • Phone: 910.343.9653 • Fax: 910.343.9604 State Stonw.eater Management Sys;em, Permit No S W S Q%q 10 TO: NC DENR/Division of Environmental Management Water Quality Section 127 Cardinal Drive Extension Wilmineton, NC 28405-384" RE: Smith Creek Station High Densituy Commercial Stormwater Project Stormwater Permit No. SWS 970105 New Hanover County A&K Project No. 97112 Engineer's Certification I: J. Phillip Norris as a duly registered Professional Engineer in the State of North Carolina, having been authorized to observe (periodically, wee' im ) the construction of the project. Smith Creek Station High Density Commercial Stormwater Project (Project) for Home Depot U.S.A., Inc. (Project Owner) hereby state that, to the best of my abilities, due care and diligence were used in the observation of the project construction such that the construction was observed to be built within substantial compliance and intent of the approved plans and specifications. Noted deviations Eom approved plans and specifications: R gtstration N 1 1966 Date _ 20 lqb cc David B Mayes/City of Wilmington Engineering Department Bill Oswell/Greenberg Farrow H.E Miller, II1%Smith Creek Station, L.L.0 CONSULTING ENGINEERS, INC woz M a. M el 9 its w ilm In q ion N[ 2RAD 1.4 733 MNa1111.I.a.� "� Y, CAROB `. 41, SEAL 11 %6 r ♦a�Y.l Inaaa.•• �E C E I V ED IUnU( OCT 0 3 2007 DWO PROJ R 1 «A„ INFORMATION PERTAINING TO DEED RESTRICTIONS AND PROTECTIVE COVENANTS In accordance with Title 15 NCAC 2H.1000, the Coastal Stormwater Management Regulations, deed restrictions and protective covenants are required for High Density Developments with Outparcels where outparcel lots will be subdivided and sold. Deed restrictions and protective covenants are necessary to ensure that the development maintains a "built -upon" area consistent with the design criteria used to size the stormwater control facility. The following deed restrictions and covenants must be recorded prior to the sale of any outparcel: 2, 3. 4. 5. 6. The following covenants are intended to ensure ongoing compliance with State Stormwater Management Permit Number SW8 970105, as issued by the Division of Water Quality under NCAC 2H.1000. The State of North Carolina is made a beneficiary of these covenants to the extent necessary to maintain compliance with the stormwater management permit. These covenants are to run with the land and be binding on all persons and parties claiming under them. The covenants pertaining to stormwater may not be altered or rescinded without the express written consent of the State of North Carolina, Division of Water Quality. Alteration of the drainage as shown on the approved plan may not take place without the concurrence of the Division of Water Quality. The maximum built -upon area for the outparcel(s) or future development area shown on the approved plans is as follows: Stormwater Pond Stormwater Pond No. 2 BUA Parcel / Tract Acreage No. 1 BUA Limit Limit No. Outparcel No. I 3.05 AC 119,572 SF Outparcel No. 2A 2.82 AC 110,251 SF Outparcel No. 3R 1.25 AC 49,005 SF Outparcel No. 4A 2.06 AC 80,760 SF Out areel No. 5R 1.17 AC 40,772 SF Outparcel No. 6R 1.11 AC 43,516 SF 9.05 AC to Tract No. 1 R Pond No. 1 (3rd Revision) 1.21 AC to 364,597 SF 49,658 SF Pond No. 2 10.26 AC Total 156,816 SF (Includes Pond Tract No. 3 5.15 AC No. 2 Area) (Revision) (Includes Pond No. 2 Area) Tract No. 2-A2 2.04 AC 73,900 SF 0.37 AC to Pond No. 1 Tract No. 2R 7.39 AC to 13,068 SF 274, 8 Pond No. 2} E C E t 7.76 AC Total ( , it n a UL 1 0 3 200. These allotted amounts include any built -upon area constructed within the property boundaries, and that portion of the right -of --way between the lot lines and the edge of the pavement. Built upon area includes, but is not limited to, structures, asphalt, concrete, gravel, brick, stone, slate, coquina and parking areas, but does not include raised, open wood decking, or the water surface of swimming pools. 7. The runoff from all built -upon area within the outparcel or future development area must be directed into the permitted stormwater control system. 8. Built -upon area in excess of the permitted amount will require a permit modification. 9. The connection from the outparcel's collection system into the stormwater control shall be made such that short-circuiting of the system does not occur. 10. For those outparcels or future development areas whose ownership is not retained by the permittee, the new owner shall submit a separate offsite stormwater permit application to the Division of Water Quality and receive a permit prior to construction. Lf B11 INFORMATION PERTAINING TO DEED RESTRICTIONS AND PROTECTIVE COVENANTS In accordance with Title 15 NCAC 2H.1000, the Coastal Stormwater Management Regulations, deed restrictions and protective covenants are required for High Density Developments with Outparcels where outparcel lots will be subdivided from the main tract and sold. Deed restrictions and protective covenants are necessary to ensure that the development maintains a "built -upon" area consistent with the design criteria used to size the stormwater control facility. I, H. E. Miller, III, Manager, acknowledge, affirm and agree by my signature below, that I will cause the following deed restrictions and covenants to be recorded prior to the sale of any outparcel or future development area: 1. The following covenants are intended to ensure ongoing compliance with State Stormwater Management Permit Number SW8 970105 as issued by the Division of Water Quality under NCAC 2H.1000. 2. The State of North Carolina is made a beneficiary of these covenants to the extent necessary to maintain compliance with the stormwater management permit. 3. These covenants are to run with the land and be binding on all persons and parties claiming under them. 4. The covenants pertaining to stormwater may not be altered or rescinded without the express written consent of the State of North Carolina, Division of Water Quality. 5. Alteration of the drainage as shown on the approved plan may not take place without the concurrence of the Division of Water Quality. 6. The maximum built -upon area for the outparcel(s) shown on the approved plans is as follows: See Attached Table These allotted amounts include any built -upon area constructed within the property boundaries, and that portion of the right-of-way between the lot lines and the edge of the pavement. Built upon area includes, but is not limited to, structures, asphalt, concrete, gravel, brick, stone, slate, coquina and parking areas, but does not include raised, open wood decking, or the water surface of swimming pools. 7. The runoff from all built -upon area within the outparcel or future development area must be directed into the permitted stormwater control system. 8. Built -upon area in excess of the permitted amount will require a permit modification. 9. The connection from the outparcel's collection system into the stormwater control shall be made such that short-circuiting of the system does not occur. 10. For those outparcels or future development areas whose ownership is not retained by the permittee, the new owner shall submit a separate offsite stormwater permit application to the Division of Water Quality 11 an((��o receive a permit prior to construction. Signature: 11LOA_._ 3r Date: '01 R I t o I State of do hereby certify that County of a Notary Public in the appeared before me this the I I 'iV— day of Q. 20-4, and acknowledge \p\iitNllligbr! the dug execution of the forinstrument. Witness my hand and of�rch,4 SkaNp '••,; My Commissioh expires 05 _O�_Oq >IE 1 11 E OCT 0 3 2007 PROJ # DWQ _r a tr t^ Y -Y _ V J �r Cl NORRIS, KUSKE &TUNSTALL CONSULTING ENGINEERS, INC. J. Phillip Norris, P.E. John A. Kuske, III, P.E. John S. Tunstall, P.E. J.A. Kuske, P.E. of Counsel Stormwater Pond Stormwater Pond Parcel I Tract No. Acreage No. 1 BUA Limit No. 2 BUA Limit Outparcel No. 1A 3.05 AC 119,572 SF Outparcel No. 2A 2.82 AC 110,251 SF Outparcel No. 3R 1.25 AC 49,005 SF Outparcel No. 4A 2.06 AC 80,760 SF Outparcel No. 5R 1.17 AC 40,772 SF Outparcel No. 6R 1.11 AC 43,516 SF 9.05 AC to Pond Tract No. 1 R No. 1 (3`d Revision) 1.21 AC to Pond 364,597 SF 49,658 SF No. 2 10.26 AC Total 156,816 SF Tract No. 3 5.15 AC (Includes (Includes Pond (Revision) Pond No. 2 Area) No. 2 Area Tract No. 2-A2 2.04 AC 73,900 SF 0.37 AC to Pond No. 1 Tract No. 2R 7.39 AC to Pond 13,068 SF 274,428 No. 2 7.76 AC Total nE C E I V ED IUnO� OCT 0 3 2007 DWQ PROJ S 902 Market Street • Wilmington, NC 28401-4733 • Phone: 910.343.9653 • Fax: 910.343.9604 North Carolina Secretary of State Page 1 of I North Carolina Elaine F. Marshall DEPARTMENT or--rHE Secretary SECRETARY of STATE PO BoK 29622 Raleigh, NC 27626-0622 (919)807-2000 CORPORATIONS Corporations Home Search By Corporate Name Search For New Corporation Search By Registered Agent Important Notice Corporations FAQ Tobacco Manufacturers Dissolution Reports Non -Profit Reports Verify Certification Online Annual Reports LINKS 8 LEGISLATION KBBE B2B Annual Reports SOSID Number Correction 2001 Bill Summaries 1999.Senate Bills Annual Reports 1997 Corporations 1997 Register for E-Procurement Dept. of Revenue ONLINE ORDERS Start An Order New Payment Procedures CONTACT US Securities Administrator Secretary of State's web site TOOLS Secretary of State Home Printable Page Date: 2/22/2007 Click here to: View Document Filings I Print apre-populated Annual Report Form i Annual Report Count I File an Annual Report I Corporation Names Name Name Type NC SMITH CREEK STATION, Legal L. L. C. Limited Liability Company Information SOSID: 0436893 Status: Current -Active Date Formed: 9/8/1997 Citizenship: Domestic State of Inc.: NC Duration: DEC 2097 Registered Agent Agent Name: Purser III, Lat W Registered Office Address: 4530 Park Rd Suite 300 Charlotte NC 28209 Registered Mailing Address: 4530 Park Rd Suite 300 Charlotte NC 28209 Principal Office Address: 4530 Park Rd Suite 300 Charlotte NC 28209 Principal Mailing Address: 4530 Park Rd Suite 300 Charlotte NC 28209 For questions or Comments about the Secretary of State's web site, please send email to webmaster. RECE'V E OCT 0 3 2007 PROd 0 _ DWQ http://www. secretary. state. nc. us/corporations/Corp.aspx?Pi tern Id=4804443 2/22/2007 OPERATING AGREEMENT OF SMITH CREEK STATION, L.L.C. A North Carolina Limited Liability Company (�E C E 1 V E� u�,uf OCT 0 3 207 DWQ PROJ a I OPERATING AGREEMENT OF SMITH CREEK STATION, L.L.C. THIS OPERATING AGREEMENT (hereinafter referred to as the "Agreement") of SMITH CREEK STATION, L.L.C. (hereinafter referred to as the "Company"), a limited liability company organized pursuant to the North Carolina Limited Liability Company Act, is executed effective as of the 8th day of September, 1997, by and among Turnpike Properties, L.L.C., a North Caro ina Limited Liability Company, and Henry E. Miller, Jr. and Lionel L. Yow, individual residents of North Carolina. SECTION 1 - DEFINITIONS 1.1 Definitions. The following terms used in this Agreement shall have the following meanings (unless otherwise expressly provided herein): (a) „Act„ means the North Carolina Limited Liability Company Act, as the same may be amended from time to time. (b) "Additional CaPltal Contributions" means a Capital Contribution of a Member made pursuant to Section 8.2 of this Agreement. (c) "Adiusted Capital Accounts' means, with respect to a Member, the balance in such Member's Capital Account at the end of the relevant fiscal year, as determined in accordance with Treasury Regulation § 1.704-1(b)(2)(iv). (d) "Adiusted Capital Account _Defir, t shall mean, with respect to any Member, the deficit balance, if any, in such Member's Capital Account as of the end of the relevant fiscal year, after giving effect to the following adjustments: ' (i) Credit to such Member's Capital Account for any amounts which such Member is obligated to restore or is deemed to be obligated to restore pursuant to Treasury Regulation § 1.704-20)(5) and to the penultimate sentence of Treasury Regulations §1.704-2(g)(1); and (ii) Debit to such Capital Account for the items described in Treasury Regulations § § 1.704-1(b)(2)(ii)(d)(4), 1.704-1(b)(2)00(d)(5), and 1.704-1(b)(2)(ii)(d)(6). Page 1 The foregoing definition of Adjusted Capital Account Deficit is intended to comply with the provisions of § 1.704-1(b)(2)(ii)(d) of the Treasury Regulations and shall be interpreted consistently therewith. (e) "Articles of Organization" means the Articles of Organization of the Company filed with the Secretary of State, as amended or restated from time to time. (f) "Capital Account" shall mean with respect to each Member, or assignee of a Member, a financial and tax accounting account which shall be maintained and adjusted in accordance with the capital accounting rules of Code Section 704(b) and the following provisions: (i) To each Member's Capital Account there shall be credited an amount equal to such Member's Capital Contributions, such Member's distributive share of Net Profit, any items in the nature of income or gain that are specifically allocated pursuant to Sections 9.3, 9.4 or 9.5, and the amount of any Company liabilities that are assumed by such Member or that are secured by Company assets distributed to such Member; (ii) To each Member's Capital Account there shall be debited the amount of cash and the Gross Asset Value of any Company asset distributed to such Member pursuant to any provision of this Agreement, such Member's distributive share of Net Loss, any items in the nature of expenses or losses which are specifically allocated pursuant to Sections 9.3, 9.4 or 9.5. and the amount of any liabilities of such Member that are assumed by the Company or that are, secured by any asset contributed by such Member to the Company; (iii) In the event that any Membership Interests are transferred in accordance with the terms of this Agreement, the transferee shall succeed to the Capital Account of the transferor to the extent it relates to the transferred interest; and (iv) In the event the Gross Asset Values of the Company assets are adjusted pursuant to the definition of Gross Asset Value herein, the Capital Accounts of all Members shall be adjusted simultaneously to reflect the aggregate adjustments as if the Company recognized gain or loss equal to the amount of such aggregate adjustment. The foregoing provisions and the other provisions of this Agreement relating to the maintenance of Capital Accounts are intended to comply with Treasury Regulation j�E C E I V ED Page 2unp{ OCT 0 3 2001 DWQ PROJ # asset, as determined by the contributing Member and the Company (The Gross Asset Values of initial property contributions are listed on Schedule A). (ii) The Gross Asset Values of all Company assets shall be adjusted to equal their respective gross fair market values, as determined by the Managers as of the following times: (i) the acquisition of an interest or an additional interest in the Company by any new or existing Member in exchange for more than a da minimis Capital Contribution; (ii) the distribution by the Company to a Member of more than a da minimis amount of Company assets other than money, unless all Members receive simultaneous distributions of undivided Membership Interests in proportion to their Percentage Interests in the Company; and (iii) the termination of the Company for federal income tax purposes pursuant to Code §708(b)(1)(B); provided, however, the adjustments pursuant to clauses (i) and (ii) above shall be made only if the Manager(s) reasonably determine that such adjustments are necessary or appropriate to reflect the relative economic interests of the Members; and (iii) If the Gross Asset Value of an asset has been determined or adjusted pursuant to this definition, such Gross Asset Value shall thereafter be adjusted by the Depreciation taken into account with respect to such asset for purposes of computing Net Profit or Net Loss. (o) "Initial Capital Contribution" means the initial contribution to the capital of the Company made by a Member pursuant to Section 8.1 of this Agreement. (p) „Maiority" means, with respect to any referenced group of Managers, a combination of any of such Managers constituting more than Fifty Percent (50%) of the number of Managers of such referenced group who are then elected and qualified. Any reference to action by the Manager or Managers of the Company refers to an action consented to by a majority of the Managers, unless specifically indicated otherwise within the context of a specific section or paragraph. (q) " aiori y in Interests". means a combination of any Members who, in the aggregate, own more than Fifty Percent (50%) of the respective Membership Interests owned by all Members, unless specifically indicated otherwise within the context of a specific section or paragraph. (r► "Manaaer" means a Person designated as a manager of the Company on Schedule B hereto, or otherwise designated as a manager in a written agreement of the Members, or any other Person that succeeds such Manager in his capacity as manager or any other Person who is elected to act as a manager of the Company as provided herein. "Managers" means all such Persons as a�{o9p.CAV ( V E D Page 4 A OCT 0 3 2-007 DWQ PROJ a reference to the singular term Manager shall also refer to the plural term Managers, unless specifically indicated otherwise within the context of a specific section or paragraph. (s) "Member" means each Person designated as a Member of the Company on Schedule A hereto, or any additional person admitted as a Member of the Company in accordance with Section X. "Members" means all such Persons as a group. (t) "Member Minimum Gain" shall mean an amount with respect to each Member Nonrecourse Debt, equal to the Company Minimum Gain that would result if such Member Nonrecourse Debt were treated as a Nonrecourse Liability, determined in accordance with §1.704-2(i)(3) of the Treasury Regulations. (u) "Member Nonrecourse Debi" has the meaning set forth in §1.704-2(b)(4) of the Treasury Regulations. (v) "Member Nonrecourse Deductions" has the meaning set forth in §§1.704-20)(1) and 1.704-20)(2) of the Treasury Regulations. (w) "Membership Interests" means an ownership interest in the Company represented by a Capital Account, entitling the holder of such Membership Interests to the rights and benefits provided in this Agreement and obligating such holder to comply with the terms and conditions of this Agreement. (x) "Net Capital Proceeds" shall mean the amount of any net cash proceeds received by the Company from a Capital Transaction after retirement of applicable mortgage debts, payment of all expenses related to the Capital Transaction, payment of or provision for Company obligations and establishment and maintenance of such reserves as the Manager(s) deem necessary or appropriate for anticipated future investments, obligations, contingencies, capital improvements, replacements and working capital. (y) "Net Cash Flow" shall mean cash revenues from the operation of the business of the Company (including cash rental revenues in the ordinary course of business, but excluding Net Capital Proceeds, Capital Contributions, and insurance proceeds), decreased by (a) cash expenses, (b) debt payments (principal and interest), (c) capital expenditures to the extent not paid from borrowings, reserves, or insurance proceeds and (d) the amount allocated for establishment and maintenance of any and all reserves required by any governmental agency or as the Manager(s), in their sole discretion, may deem necessary or appropriate for anticipated future investments, obligations, contingencies, capital improvements, replacements and working capital. Page 5 (z) "Net Initial Capital Contribution" shall mean the Capital Contributions of the Member to the Company made under Section 8.1, less all amounts distributed to that Member under Section 9.2(e); provided that such Net Initial Capital Contribution shall not be reduced below zero (0). (aa) "Net Profit or Net Loss" shall mean for each fiscal year or other period an amount equal to the Company's taxable income or loss for such year or period, determined in accordance with Code §703(a). For the purpose of this Section 1.1(bb), all items of income, gain, loss, or deduction required to be stated separately pursuant to Code §703(a)(1) shall be included in taxable income or loss with the following adjustments: (i) Any income of the Company that is exempt from federal income tax and not otherwise taken into account in computing Net Profit or Net Loss pursuant to this definition shall be added to such taxable income or loss; 00 Any expenditures of the Company described in Code §705(a)(2)(B) or treated as Code §705(a)(2)(B) expenditures pursuant to Treasury Regulation §1.704-1(b)(2)(iv)(i), and not otherwise taken into account in computing Net Profit or Net Loss pursuant to this definition, shall be subtracted from such taxable income or loss; (iii) Gain or loss resulting from any disposition of Company assets with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Gross Asset Value of the asset disposed of, notwithstanding that the adjusted tax basis of such asset differs from its Gross Asset Value; (iv) In lieu of the Depreciation, amortization and other cost recovery deductions taken into account in computing such taxable income or loss there shall be taken into account Depreciation for such fiscal year or other period, computed in accordance with its definition herein; (vl To the extent an adjustment to the adjusted tax basis of any Company asset pursuant to Code §734(b) or Code §743(b) is required pursuant to Regulations § 1.704-1(b)(2)(iv)(m)(4) to be taken into account in determining Capital Accounts as a result of a distribution other than in complete liquidation of a Member's Membership Interests the amount of such adjustment shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases the basis of the asset) from the disposition of the asset and shall be taken into account for purposes of computing Net Profit or Net Loss; and Page 6 (vi) Notwithstanding any other provision of this Section, any items which are specially allocated pursuant to Sections 9.3, 9.4 or 9.5 hereof shall not be taken into account in computing Net Profit or Net Loss. The amounts of the items of Company income, gain, loss or deduction available to be specifically allocated pursuant to Sections 9.3, 9.4 and 9.5 hereof shall be determined by applying rules analogous to those set forth in this Section 1.1(aa). (bb) "Nonrecourse Deductions" has the meaning set forth in 91.704-2(b)(1) of the Treasury Regulations. (cc) "Nonrecourse Liability" shall have the same meaning as set forth in Treasury Regulations § 1 .704-2(b)(3). (dd) "Percentage Interests" means the percentage ownership interest of a Member. (ee) "Person" means an individual, a trust, an estate, a domestic corporation, a foreign corporation, a professional corporation, a partnership, a limited partnership, a limited liability company, a foreign limited liability company, an unincorporated association, or any other legal entity. (ff) "Record Holder" means a Person shown on the books and records of the Company who has a Membership Interests in the Company as of the close of business on any day on which Record Holders are to be determined. A Record Holder has all rights, powers and obligations of a Member, including, without limitation, the right to vote on all matters brought before the Members of the Company for a vote. (gg) "Secretary of State" means the Secretary of State of North Carolina. (hh) "Treasury Regulations" means the Income Tax Regulations and Temporary Regulations promulgated under the Code, as such regulations may be amended from time to time (including corresponding provisions of succeeding regulations). SECTION II - FORMATION OF THE COMPANY 2.1 Formation. The Company was formed on the date first written above upon the filing with the Secretary of State of the Articles of Organization of the Company. In consideration of the mutual premises and covenants contained herein and other good and valuable consideration, the receipt and sufficiency of which is Page 7 E C E I V E D OCT 0 3 L007 DWQ PROJ # hereby acknowledged, the parties hereto agree that the rights and obligations of the parties and the administration and termination of the Company shall be governed by this Agreement, the Articles of Organization and the Act. 2.2 Name. The business and affairs of the Company shall be conducted under the name "SMITH CREEK STATION, L.L.C." The name of the Company may be changed from time to time by amendment of the Articles of Organization. The Company may transact business under an assumed name by filing an assumed name certificate in the manner prescribed by applicable law. 2.3 Registered Office and Registered Agent. The Company's registered office shall be 4530 Park Road, Suite 300, Charlotte, North Carolina, 28209, and the name of its initial registered agent at such address shall be Lat W. Purser, III. 2.4 Principal Place of Business. The principal place of business of the Company within the State of North Carolina shall be 4530 Park Road, Suite 300, Charlotte, North Carolina, 28209. The Company may locate its place(s) of business and registered office at any other place or places as the Managers may from time to time deem necessary or advisable. 2.5 Term. The Company shall be formed and shall commence doing business as of the date of the filing of the Articles of Organization and shall continue from the date of filing through December 31, 2097, unless the Company is earlier dissolved and its affairs wound up in accordance with the provisions of this Agreement or the Act. 2.6 Purposes and Powers. The purposes and powers of the Company are as follows: (a) To acquire those certain tracts or parcels of land at or near the intersection of Old Eastwood Road (S.R. 1937) and Racine Drive (S.R. 1905), Wilmington, New Hanover County, North Carolina and known as or to be known as "Smith Creek Station" (hereinafter referred to as the "Property"), as more particularly described in Schedule C. (b) To build, construct, and develop a retail shopping c inter, including the out parcels, on the Property. (c) To hold and operate the Property and the improvements located thereon, or any part thereof, and to engage in such other activities related to the Company as may be reasonably calculated to benefit the Company. Page 8 (d) To enter into contracts for the purchase, sale, financing, construction, maintenance and management of the Property. (e) To sell the Property at a fair market price. (f) To borrow money for Company purposes, to execute and deliver promissory notes evidencing any such indebtedness and to mortgage, pledge and encumber the property of the Company in order to secure any such loans. (g) To loan money and to receive borrowed monies, rentals and all other types of income and other receipts in any way derived from the Company's property and investments, and to deposit such funds in any bank or other depository; to expend all or any portion of these funds for maintenance of the facilities in payment of operation and other expenses, in repayment of debts, and for any other proper purpose related to the ownership and operation of the Company by the Members from the funds as are determined by the Manager(s) to be available for such purpose. 2.7 Restriction on Purpose and Actions of the Members and Managers. Except as otherwise provided in this Agreement, without the unanimous written consent of all the Members, the Members and the Managers shall not have the authority to: (a) Do any act in contravention of this Agreement. (b) Confess a judgment against the Company. (c) Admit an additional Member, except as provided for in this Agreement. (d) Amend, modify or waive provisions of this Agreement. (a) Alter the purposes of the Company as set forth in Section 2.6. (f) Bring any suit on behalf of the Company or settle any suit brought against the Company other than proceedings in the ordinary course of business. (g) Possess any Company Property, or assign the rights of the Company in specific Property, for other than a Company purpose. (h) Make arrangements for financing or acceptance of loan commitments. (i) Sell, lease, transfer (other than in the ordinary course of business), mortgage, or place any other encumbrances or lien upon the Property. Page 9 2.8 Nature of Members' Interests. The Membership Interests of the Members in the Company shall be personal property for all purposes. Legal title to all Company assets shall be held in the name of the Company. Neither any Member nor a successor, representative or assign of such Member, shall have any right, title or interest in or to any Company property or the right to partition any real property owned by the Company. 2.9 Management and Leasing Agreement. The Company hereby adopts the Exclusive Management and Leasing Agreement attached hereto as Schedule D. SECTION III RIGHTS AND DUTIES OF MANAGERS 3.1 Management. The business and affairs of the Company shall be managed by the Managers. In addition to the powers and authorities expressly conferred by this Agreement upon the Managers, the Managers shall have full and complete authority, power and discretion to manage and control the business of the Company, to make all decisions regarding those matters and to perform any and all other acts or activities customary to or incident to the management of the Company's business, except only as to those acts and things as to which approval by the Members is expressly required by the Articles of Organization, this Agreement, the Act or other applicable law. At any time when there is more than one Manager: (i) any one Manager may take any action permitted to be taken by the Managers, unless the approval of more than one of the Managers is expressly required pursuant to this Agreement or the Act; and (ii) the Managers may elect one or more officers who may but need not be Members or Managers of the Company, with such titles, authority, duties and compensation as may be designated by the Managers, subject to any applicable restrictions specifically provided in this Agreement or contained in the Act. Action under Section 3.1(ii) shall require a vote of a Majority of the Managers or written consent of all of the Managers as provided in Section 4.3(d). 3.2 Number and Qualifications. There shall initially be the number of Managers of the Company whose names appear on Schedule B attached hereto. The names and consent of the Managers to serve as such shall be evidenced on Schedule d B attached hereto and made a part hereof, as amended upon any change of Managers. Lo>< There shall be a maximum of three (3) Managers of the Company who shall be elected as provided in Section 6.7. Managers need not be residents of the State of North Carolina or Members of the Company. 3.3 Election and Term of Office. Managers shall be elected at the annual meeting of the Members (except as provided in Sections 3.5 and 3.6). Each Manager shall hold office until the Manager's successor shall have been elected and qualified, or until the death or dissolution of such Manager, or until his or its resignation or removal from office in the manner provided in this Agreement or in the Act. Page 10 3.4 Resignation. Any Manager of the Company may resign at any time by giving written notice to all of the Members of the Company. The resignation of any Manager shall take effect upon receipt of notice thereof or at such later time as shall be specified in such notice; and, unless otherwise specified therein, the acceptance of such resignation shall not be necessary to make it effective. 3.5 Removal. At any special meeting of the Members called expressly for that purpose, all or any lesser number of Managers may be removed at any time, either with or without cause, by the affirmative vote of a Majority in Interests of Members. In case any vacancy so created shall not be filled by the Members at such meeting, such vacancy may be filled by the Members as provided in Section 3.6. 3.6 Vacancies. Any vacancy occurring for any reason in the Managers of the Company may be filled by the affirmative vote of a Majority in Interests of Members at an annual meeting of Members or at a special meeting of Members called for that purpose. 3.7 Inspection of Books and Records. Any Manager shall have the right to examine all books and records of the Company for a purpose reasonably related to such Manager's position as a Manager. 3.8 Compensation. Each Manager shall receive a monthly management fee of One Hundred dollars ($100.00). e management fee she be paid on or before the 15th of each month. No Manager shall be prevented from receiving such compensation by reason of the fact that he is also a Member of the Company. 3.9 Committees of the Managers. The Managers, by resolution, may designate from among the Managers one or more committees, each of which shall be comprised of one or more of the Managers, and may designate one or more of the Managers as alternate members of any committee, who may, subject to any limitations imposed by the Managers, replace absent or disqualified Managers at any meeting of that committee. Any such committee, to the extent provided in such resolution or in this Agreement, shall have and may exercise all of the authority of the Managers, subject to any restrictions contained in this Agreement or the Act. Page 11 SECTION IV - MEETINGS OF MANAGERS 4.1 Place of Meeting. The Managers of the Company may hold their meetings, both regular and special, at any place within or without the State of North Carolina. 4.2 Notice of Meetings. The first meeting of newly elected Managers shall be held immediately following the adjournment of the annual meeting of the Members. The Managers may otherwise meet at such intervals and at such time and place as they shall schedule. The first meeting of Managers, and any scheduled meetings of the Managers, may be held without notice. Special meetings of the Managers may be called at any time by no less than one-third of the then serving Managers for any purpose or purposes. Notice of such special meetings, unless waived by attendance or by written consent to the holding of the special meeting, shall be given at least five (5) days before the date of such meeting to all Managers not calling the meeting. Notice of such special meeting shall state that it shall be held at the principal place of business of the Company, the date and hour of the special meeting, and its purpose or purposes. Absent the written consent of a majority of the Managers to take other action, the business transacted at such special meeting shall be limited to such purpose or purposes as stated in the notice. 4.3 Action by Managers; Quorum; Voting; Action Without a Meeting. (a) A Majority of the Managers shall be necessary to constitute a quorum for the transaction of business at a meeting of the Managers. Every act or decision done or made by a Majority of the Managers present at a meeting duly held at which a quorum is present shall be regarded as the act of the Company, unless a greater number is required by law, the Articles of Organization or by this Agreement. (b) Managers may participate in any meeting of the Managers by means of conference telephone or similar communications equipment, provided all Managers participating in the meeting can hear one another, and such participation in a meeting shall constitute presence in person at the meeting. (c) All votes required of Managers hereunder may be by voice vote, unless written ballot is requested, which request may be made by any one Manager. (d) Any action which under any provision of the Act or this Agreement is to be taken at a meeting of the Managers may be taken without a meeting by written consent signed by all Managers who would be entitled to vote upon such action at a meeting. Such written consent must be kept with the records of the Company. Page 12 4.4 Adjournment. A Majority of the Managers present may adjourn any Managers' meeting to meet again at a stated day and hour or until the time fixed for the next regular meeting of the Managers. SECTION V - MEMBERS 5.1 Names and Addresses of Member. The names, addresses and Percentage Interests of the Members are as reflected on Schedule A attached hereto and made a part hereof, which Schedule A shall be amended by the Company as of the effective date of any subsequent issuance of any Membership Interests. 5.2 Admission of Members. (a) In the case of a Person acquiring any Membership Interests directly from the Company, the Person shall become a Member with respect to such Membership Interest upon compliance with the requirements of Section X and making the Capital Contributions specified by a Majority in Interests. (b) Any Person may become a Member unless such Person lacks capacity or is otherwise prohibited from being admitted by applicable law. SECTION VI - MEETINGS OF MEMBERS 6.1 Annual Meetings of Members. An annual meeting of the Members will be held at such time and date at the principal office of the Company or at such other place within or without the State of North Carolina as shall be designated by the Managers from time to time and stated in the notice of the meeting. The purposes of the annual meeting need not be enumerated in the notice of such meeting. 6.2 Special Meetings of Members. Special meetings of the Members may be called by the Managers or by the holders of not less than Ten Percent (10%) of all the Membership Interests. Business transacted at all special meetings shall be confined to the purpose or purposes stated in the notice. 6.3 Notice of Meetings of, Members. Written notice stating the place, day and hour of the meeting and, additionally in the case of special meetings, stating the principal place of business of the Company as the location and 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. 6.4 Record Date. For the purpose of determining Members entitled to notice of or to vote at any meeting of Members or any adjournment thereof, or Members entitled to receive payment of any distribution, or to make a determination Page 13 of Members for any other purpose, the date on which notice of the meeting is mailed or the date on which such distribution is declared, as the case may be, shall be the record date for such determination of Members. When a determination of Members entitled to vote at any meeting of Members has been made as provided in this Section 6.4, such determination shall apply to any adjournment thereof. 6.5 Quorum. A Majority in Interests shall constitute a quorum at all meetings of the Members, except as otherwise provided by the Act or this Agreement. Once a quorum is present at the meeting of the Members, the subsequent withdrawal from the meeting of any Member prior to adjournment or the refusal of any Member to vote shall not affect the presence of a quorum at the meeting. If, however, such quorum shall not be present at the opening of any meeting of the Members, the Members entitled to vote at such meeting shall have the power to adjourn the meeting from time to time, without notice other than announcement at the meeting. 6.6 Actions by Members Other than for Election of Managers. Except for a matter for which the affirmative vote of greater than a Majority in Interests is required by the Act, the Articles of Organization or this Agreement, action of Members shall be by the affirmative vote of a Majority in Interests represented and voting at the meeting. All actions provided for herein may be taken by written consent without a meeting. Any such action which may be taken by the Members without a meeting shall be effective only if the consents are in writing, set forth the action so taken, and are signed by all Members. Members may participate in any meeting of the Members by means of a conference telephone or similar communications equipment, provided all members participating in the meeting can hear one another, and such participation in a meeting shall constitute presence in person at the meeting. 6.7 Action by Members to Elect Managers. Notwithstanding anything to the contrary in Section 3.6, for purposes of voting on the election of Managers, Managers shall be elected at any meeting of the Members at which a quorum is present. Turnpike Properties, L.L.C. and its assigns can collectively elect one (1) Manager. By executing this Agreement Turnpike Properties, L.L.C. hereby elects Lat W. Purser, III as a Manager of the Company. Henry E. Miller, Jr. and his assigns can collectively elect one (1) Manager. By executing this Agreement Henry E. Miller, Jr. hereby elects Henry E. Miller, III as a Manager of the Company. Lionel L. Yow and his assigns can collectively elect one (1) Manager. 6.8 List of Members Entitled to Vote. The Managers shall make, at least Ten (10) days before each meeting of Members, a complete list of the Members entitled to vote at such meeting, or any adjournment of such meeting, arranged in alphabetical order, with the address of and the Percentage Interests held by each, which list, for a period of Ten (10) days prior to such meeting, shall be kept on file at the registered office of the Company and shall be subject to inspection by any Member at any time during usual business hours. Such list shall also be produced and kept open at the time and place of the meeting and shall be subject to inspection of any Page 14 Member during the whole time of the meeting. However, failure to comply with the requirements of this Section 6.8 shall not affect the validity of any action taken at such meeting. 6.9 Registered Members. The Company shall be entitled to treat the Record Holder of any Membership Interests as the holder in fact of such Membership Interests for all purposes, and accordingly shall not be bound to recognize any equitable or other claim to or interest in such Membership Interests on the part of any other person, whether or not the Company shall have express or other notice of such claim or interest, except as expressly provided by this Agreement or the laws of North Carolina. SECTION VII - LIMITATION OF LIABILITY AND INDEMNIFICATION OF MANAGERS AND MEMBERS 7.1 Limitation of Liability. No Manager or Member of the Company shall be liable, responsible or accountable in damages or otherwise to the Company or its Members for monetary damages for an act or omission in such person's capacity as a Manager, a Member, or as a Member's successor, assignee or transferee except as provided in the Act for (i) acts or omissions which a Manager or Member knew at the time of the acts or omissions were clearly in conflict with the interests of the Company, or (ii) any transaction from which a Manager or Member derived an improper personal benefit. 7.2 Indemnification and Reimbursement. (a) The Company shall indemnify, defend and hold each Manager harmless from and against any loss, liability, damage, cost or expense, including reasonable attorneys, fees, incurred by or asserted against that Manager and arising in connection with any of their activities on behalf of the Company or in furtherance of the interests of the Company, including, without limitation, any action taken by a Manager as Tax Matters Partner, or any demands, claims or lawsuits initiated by a Member or resulting from or relating to the offer and sale of Membership Interests in the Company. Neither Manager nor any Manager's affiliates or agents who perform services on behalf of the Company shall have any liability by reason of or arising out of the authorized conduct of the Company's business or for the preservation of its business assets or property. Notwithstanding any provision to the contrary in this Agreement, the Company shall not indemnify any Manager's affiliate or agent to the extent that such liability arises from such Manager's fraud, bad faith or gross negligence or such lesser standard of conduct as under applicable law prevents indemnification hereunder. All rights of the Manager to indemnification shall survive the dissolution of the Company and the withdrawal, incapacity or bankruptcy of the Manager. Page 15 (b) The Company shall indemnify, defend and hold each Member harmless from and against any loss, liability, damage, cost or expense, including reasonable attorney's fees, incurred by or asserted against that Member and arising due to that Member's status as a Member, except to the extent that such liability arises from such Member's fraud, bad faith or gross negligence or such lesser standard of conduct as under applicable law prevents indemnification hereunder. All rights of the Member to indemnification shall survive the dissolution of the Company and the withdrawal, expulsion, incapacity or bankruptcy of the Member. Notwithstanding any provision to the contrary in this Agreement, no relief pursuant to this Section 7.2(b) shall limit or eliminate the liability of a Member for any taxes owed by the Company pursuant to Chapters 105 and 119 of the North Carolina General Statutes. (c) The Company may advance expenses incurred by a Manager or Member, including advances to cover the legal costs and other expenses (including the cost of any investigation and preparation) incurred by any Member or Manager in connection with any of his activities on behalf of the Company or in furtherance of the interests of the Company. The Company may advance such expenses after application therefor has been made by the Manager or Member and such application has been approved by a Majority of disinterested Managers, or if none, a Majority in Interests of disinterested Members and the Company has received an undertaking by such Manager or Member to reimburse the Company unless it shall ultimately be determined that such Manager or Member is entitled to be indemnified by the Company against such expenses. The Company may also indemnify its employees and other representatives or agents up to the fullest extent permitted under the Act or other applicable law, provided that the indemnification in each such situation is first approved by a Majority in Interests, excluding therefrom the vote of the party to be indemnified. 7.3 Other Rights. The indemnification provided by this Agreement shall: W be deemed to be in addition to any other rights to which a person seeking indemnification may be entitled under any statute, agreement, vote of disinterested Members or disinterested Managers, or otherwise, both as to action in official capacities and as to action in another capacity while holding such office; 60 continue as to a person who ceases to be a Manager or Member with respect to all actions which occur on or before the date on which such Manager or Member ceases to be a Manager or Member, as the case may be; (iii) inure to the benefit of the estate, heirs, executors, administrators or other successors of an indemnitee; and (iv) not be deemed to create any rights for the benefit of any other person or entity. 7.4 Report to Members. The details concerning any action to limit the liability of or indemnify or advance expenses to a Manager, Member or other person or entity, taken by the Company shall be reported in writing to the Members with or before the notice or waiver of notice of the next Members' meeting or, if sooner, with Page 16 or before the next submission to the Members of a consent to action without a meeting or, if sooner, separately within Ninety (90) days immediately following the date of the action. SECTION VIII - CONTRIBUTIONS TO CAPITAL AND CAPITAL ACCOUNTS; LOANS; NO NEGATIVE CASH FLOW GUARANTY 8.1 Capital Contribution. Upon execution of this Agreement, each Member agrees to contribute cash or property to the Company in the amount set forth as the Initial Capital Contribution of such Member on Schedule A, attached hereto. 8.2 Additional Capital Contributions. In the event at any time or from time to time, a Majority of the Managers reasonably determine the Company is in need of additional capital, or will be in need of additional capital within ninety (90) days, the Managers may propose a capital call by delivering a written notice to each Member specifying (i) the total amount of the additional capital required, (ii) the use to which such capital would be applied and (iii) a request for approval of a capital call in such amount. To the extent the capital call is approved by a Majority in Interests of the Members, then within ten (10) days of such approval, the Managers shall send a written notice to each Member setting forth (i) the amount of the total capital call, (ii) the purposes for which the funds will be used, (iii) the date the capital call was approved by the Members and (iv) such Member's pro-rata share of such capital call, such pro-rata share being equal to such Member's Percentage Interests. Each member shall contribute in cash such Member's pro-rata share of the approved capital within thirty (30) days following the receipt of the notice. 8.3 Failure to Make Additional Capital Contributions. (a) If any Member fails to make any Additional Capital Contribution within the specified time as required pursuant to Section 8.2 (hereinafter referred to as the "Defaulting Member"), then any other Member (hereinafter referred to as the"Non-Defaulting Member") may, at its option invoke any of the following provisions: (i) The Company, by vote of a Majority in Interests of the Non - Defaulting Members, shall have the right to expel the Defaulting Member and treat such failure to make the required Additional Capital Contribution as an event which is treated as an Involuntary Transfer under Section 10.4(c), and which triggers the Company/Member Purchase Option. The Company shall give the Defaulting Member written notice of its intent to treat the Defaulting Member's failure to make the required Additional Capital Contribution as an event which is treated as an Involuntary Transfer under Section 10.4(c), and which triggers the Company/Member Purchase Option. The written notice shall state that it is made pursuant to this Section 8.3(a)(i). A Defaulting Member who is expelled from the Company shall remain liable to the Page 17 E C E 1 V E D I��unjUUU OCT 0 3 7007 DWQ PROJ # - Company for his deemed negative Capital Account as provided in Section 10.10. The value of the Membership Interests of the Defaulting Member as determined in Section 10.5 and Section 10.6 shall be reduced by the amount of such Defaulting Member's unpaid Additional Capital Contribution (ii) If any Defaulting Member fails to make all of such Defaulting Member's share of any additional contribution to capital as required pursuant to Section 8.2 hereof, then in lieu of causing the Company or the Non -Defaulting Members to purchase the interest of the Defaulting Member as provided in Section 8.3(a)(i) above, the Non -Defaulting Members, who are able and willing to do so, may make a Capital Contribution in excess of their proportionate share of such Additional Capital Contributions in such amounts as they may agree amongst themselves. If unable to agree upon the Additional Capital Contribution, each Non -Defaulting Member who is able and willing to make a contribution shall have the primary right to contribute that portion of such excess equal to the proportion that such Non -Defaulting Member's Percentage Interests in the Company bears to the aggregate Percentage Interests of all Non -Defaulting Members, and a secondary right to contribute any remaining portion of such excess which is not desired to be contributed by any other Non -Defaulting Member in the exercise of his primary right. A contribution to the Company made by a Member on behalf of a Defaulting Member pursuant to Section 8.3(a)(ii) shall at the election of the contributing Member be treated as an Additional Capital Contribution to the Company (with adjustment in the Percentage Interests of the Members to the extent provided in Section 8.4) or deemed as .a demand loan from such Non -Defaulting Member to the Defaulting Member. If the Non -Defaulting Member elects to treat the amount advanced as a demand loan to the Defaulting Member, the Capital Account of the Non -Defaulting Member shall be increased by the amount treated as a loan to the Defaulting Member and the Defaulting Member's Percentage Interest in the Company shall not be affected. The amount advanced by the contributing Non -Defaulting Member on behalf of the Defaulting Member shall be a nonrecourse personal debt of the Defaulting Member to the contributing Non -Defaulting Member and shall bear an interest rate at the lesser of Eighteen Percent (18%) per annum or the maximum rate allowed by North Carolina law, and shall be secured by the Defaulting Member's Membership Interests in the Company as provided below. Thereafter, all distributions from the Company otherwise due to the Defaulting Member shall be paid to the contributing Non -Defaulting Member (or Non -Defaulting Members in proportion to their contributions) who has made a contribution on behalf of such Defaulting Member until such time as the principal and the interest of such loan or loans are paid in full. The Non -Defaulting Member(s) making such advances as a demand loan may call the demand loan or loans due at any time. If payment in full of such demand loan is not made within ten (10) days of demand, the Non -Defaulting Member(s) who have advanced the funds may either (i) pursue legal enforcement of the demand loan in which event the Company may expel Page 18 the Defaulting Member as provided in Section 8.3(a)(i) above, or (ii) elect to treat the principal amount due under the demand loan as an Additional Capital Contribution to the Company by the Non -Defaulting Member(s) who made advances with a corresponding reduction in the Capital Account of the Defaulting Member and with an adjustment in the Percentage Interests of the Members as provided in Section 8.4, to the extent applicable. A Defaulting Member shall execute (i) a promissory note payable to the contributing Non -Defaulting Member(s) for the amount of the advance, plus interest as described above; and (ii) a security agreement and UCC statements granting a security interest in the Defaulting Member's Membership Interest in the Company to the contributing Member(s). (b) Each of the Members hereby constitutes and appoints each other Member as his true and lawful representative and attorney -in -fact, in his name, place, and stead to make, execute, sign and file all instruments necessary for the creation and continued existence of any foregoing described promissory note and security agreement. This power of attorney shall be irrevocable and deemed coupled with a Membership Interest. This grant of a power of attorney shall apply only with respect to the provisions of this Section 8..3. 8.4 Squeeze Down. If a Non -Defaulting Member who contributes additional capital to the Company pursuant to Section 8.3 hereof elects to treat such payment as an Additional Capital Contribution rather than a loan to a Defaulting Member or if the Defaulting Member fails to repay a demand loan made pursuant to Section 8.3, each Member's Percentage Interests shall be adjusted as follows: (a) The amount of each Member's then unreturned Capital Contributions shall be determined (without regard to distributions of Net Cash Flow). (b) The amount determined above, shall be divided by the aggregate amount of all the Members' then unreturned Capital Contributions (determined without regard to distributions of Net Cash Flow), and the resulting percentage for the Defaulting Member shall be such Member's adjusted Percentage Interests, and shall supersede such Member's prior Percentage Interests, as originally stated or previously adjusted. It is understood and agreed that only the Percentage Interests of the Defaulting Member shall be reduced under this. Section 8.4. The amount of the reduction in the Defaulting Member's Percentage Interests shall be allocated to the Non -Defaulting Members in proportion to their respective Percentage Interests prior to the "Squeeze Down." (c) Notwithstanding any other provision in this Agreement to the contrary, a "Squeeze Down" under this Section 8.4 shall be applied only in the case of a Defaulting Member who declines to make Additional Capital Contributions requested under 8.2. Page 19 n E C E I V E D �'JnOf OCT 0 3 2G87 DWQ PROJ # 8.5 Loans. In addition to the loans to the Defaulting Member provided for in Section 8.3(a)(ii) above, upon approval of the terms thereof by a Majority of the Managers, any Member may make a loan to the Company upon commercially reasonable terms. Loans by a Member to the Company shall not be considered Capital Contributions. 8.6 Withdrawal or Reduction of Members' Contributions to Capital. (a) No Member may withdraw from the Company prior to its dissolution except if the Member is expelled from the Company pursuant to Section 8.3(a)(i) or alternatively withdraws with the written consent of the other Members as an provided in Section 10.9. The death, incompetency, bankruptcy or insolvency of a Member shall not dissolve or terminate the Company, nor enable a successor to the deceased Member to withdraw or redeem such deceased Member's Membership Interests. In the event of death, incompetency, bankruptcy or insolvency of a Member, the executor, administrator, guardian, trustee, receiver, personal representative, beneficiary or beneficiaries of such Member shall be deemed to be the assignee(s) of such Member's Membership Interests in the Company and may become a substitute Member upon the terms and conditions set forth in Section 10.11. (b) No Member shall have priority over any other Member, either as to the return of Capital Contributions or as to Net Income, Net Losses or Cash Flow Distributions except as provided in Section IX; provided that this subsection shall not apply to loans (as distinguished from Capital Contributions) which a Member has made to the Company. 8.7 Liability of Members. No Member shall be liable for the debts, liabilities or obligations of the Company beyond his or her or its respective Initial Capital Contribution and any Additional Capital Contribution, except as provided in this Agreement. 8.8 Company Debt and Guaranty Agreements. (a) In the event that any Member pays any amount (hereinafter referred to as a "Guaranty Payment") to any Person pursuant to an executed guaranty agreement for which the Member is personally liable in connection with any indebtedness of the Company (hereinafter referred to as a "Guaranty Agreement"), then all other Members shall be obligated to reimburse (hereinafter referred to as a "Reimbursement") the paying Member, such that after giving effect to all required Reimbursements, each Member shall have paid his pro rata amount of the Guaranty Payment (hereinafter referred to as the "Pro Rata Guaranty Amount") based upon each Member's Percentage Interests. All Pro Rats Guaranty Amounts paid shall be treated as a loan to the Company and shall bear an interest rate at the lesser of Eighteen Page 20 Percent (18%) per annum or the maximum rate allowed by North Carolina law, and such other terms and conditions as are reasonably acceptable to all Members. (b) In the event that any Member fails to pay any required Reimbursement, then the Member making the Guaranty Payment and Members who paid Reimbursements shall have the right in their sole discretion (i) to treat the excess of any amount paid in respect of the Guaranty Payment or Reimbursement, as the case may be, over the Pro Rate Guaranty Amount as a loan to the Company and shall bear an interest rate at the lesser of Eighteen Percent 118%) per annum or the maximum rate allowed by North Carolina law, and such other terms and conditions as are reasonably acceptable to all Members, or (ii) bring an action at law or equity against any or all Members who failed to make Reimbursements, in which case, in addition to any other remedy available at law or equity, the Members agree that the Members who made the Guaranty Payment or Reimbursement (hereinafter referred to as "Performing Members") shall be entitled to specific performance by the Members who did not make the Pro -Bata Guaranty Amount of their monetary obligations under this Section 8.8; provided that all Members exercising rights or remedies under this Section 8.8.must exercise the same right, remedy, or combination of remedies with respect to a particular Member who did not make the Pro -Bata Guaranty Amount. The Members who did not make the Pro -Bata Guaranty Amount shall be jointly and severally liable for all costs and expenses, including reasonable attorneys' fees, of the Performing Members in exercising their rights or remedies under this Section 8.8. 8.9 No Negative Cash Flow Guaranty. Henry E. Miller, Jr. and Lionel L. Yow represent and warrant to the Company and Turnpike Properties L.L.C. that at any time before thirty six (36) months after the opening of the Winn Dixie storelocated on the Property, if there is not enough operating income to pay for operating expenses (including but not limited to debt service and working capital reserves), then in that year, when and as needed by the Company to meet the Company's obligations, Henry E. Miller, Jr. and Lionel L. Yow will advance an amount to the Company which is necessary so as to fund such shortfall. The advance shall be made by Henry E. Miller, Jr, and Lionel L. Yow in proportion to their relative Percentage Interests . The amount funded shall be treated as a loan by Henry E. Miller, Jr. and Lionel L. Yow to the Company bearing interest at the rate quoted from time to time by the Wall Street Journal as its prime rate, plus Eight Percent (8%), and such other terms and conditions as are reasonably acceptable to all Members. SECTION IX - PROFIT AND LOSS ALLOCATIONS, DISTRIBUTIONS, ELECTIONS AND REPORTS 9.1 Net Profit and Net Loss and Net Cash Flow Distributions. (a) Net Cash Flow Distribution. All Net Cash Flow shall be distributed to the Members as follows: Page 21 (i) First, to Henry E. Miller, Jr. and Lionel L. Yow in an amount that equals a Six Percent (6%) per annum, cumulative noncompounded return on their Net Initial Capital Contributions (hereinafter referred to as the "Cumulative Preferred Return"), provided, however, if in any year the Net Cash Flow of the Company is less than Six Percent (6%) of the combined Net Initial Capital Account of Henry E. Miller, Jr. and Lionel L. Yow, the distribution for that year shall be made pro rata to Henry E. Miller, Jr, and Lionel L. Yow based upon the Percentage Interests of Henry E. Miller, Jr. and Lionel L. Yow, and any deficiency shall accrue and shall be paid to Henry E. Miller, Jr. and Lionel L. Yow in subsequent years when the Net Cash Flow of the Company exceeds the Cumulative Preferred Return. Notwithstanding the forgoing, the amount of unpaid Cumulative Preferred Return that can accrue shall be limited to Two Million dollars ($2,000,000) each for Henry E. Miller, Jr. and Lionel L. Yow. (ii) Next, the balance, if any, shall be distributed not less frequently than annually to the Members in proportion to their Percentage Interests. (b) Capital Account Allocation of Net Profit and Net Losses. Except as otherwise specified herein: (i) Net Profit shall be allocated annually to the Members as I follows: (A) First, if the cumulative Net Cash Flow distributed pursuant to Section 9.1(a)(i) is equal to or exceeds the cumulative Net Profit, Net Profit shall be allocated to the Capital Accounts of Henry E. Miller, Jr. and Lionel L. Yow in an amount equal to the amount of cumulative Net Cash Flow distributed pursuant to Section 9.1(a)(i). If cumulative Net Cash Flow distributed pursuant to Section 9.1(a)(i) is less than the cumulative Net Profit, Net Profit shall be allocated to Henry E. Miller, Jr. and Lionel L. Yow in proportion to their respective Percentage Interests until they have received an allocation of Net Profit equal to the Cumulative Preferred Return under 9.1(a)(I) that has been paid and accrued. (B) The remainder, if any, shall be allocated to the Members in proportion to their Percentage Interests. (J) All Net Losses shall be allocated to the Members in proportion to their Percentage Interests. 9.2 Distribution of Net Capital Proceeds. Net Capital Proceeds will be distributed and applied by the Company in the following order of priority: Page 22 (a) First, to the payment of debts and liabilities of the Company (including all expenses of the Company incident to any such sale, exchange or refinancing) excluding debts and liabilities of the Company to Members, but including all unpaid compensation owing to the Manager pursuant to Section 3.8; (b) Next, to the setting up of any reserves which the Managers deem reasonably necessary for contingent, unmatured or unforeseen liabilities or obligations of the Company; (c) Next, to the repayment of the balance due on advances or cash loans to the Company made by any Member; (d) Next, to the Members in the amount of their respective Additional Capital Contributions under Section 8.2, if any, less previous distributions to them under this Section 9.2(d); (e) Next, to the Members in the amount of their respective Initial Capital Contributions under Section 8.1, less previous distributions to them under this Section 9.2(e); (f) Next, to the Members in the amount of any accrued, but unpaid Cumulative Preferred Return under Section 9.1(a)(i); (g) The remainder, if any, shall be distiributed to the Members in proportion to their Percentage Interests. (h) Notwithstanding the foregoing, if upon sale of the Property in liquidation of the Company, Turnpike Properties, L.L.C. would not otherwise receive a distribution of Net Capital Proceeds under Section 9.2(g), the Net Capital Proceeds distribution under Seciton 9.2(f) shall be made as follows: Turnpike Properties, L.L.C. 10% Henry E. Miller, Jr. 51.354% Lionel L. Yow 38.646% Provided, however, that if the Company or a Member's Membership Interests in the Company is liquidated within the meaning of the Treasury Regulations under Code Section 704 (b), the remainder shall be distributed according to Section XI hereof. Notwithstanding any provision to the contrary, distributions of Net Capital Proceeds under this Section 9.2 shall be made after Capital Accounts have been Page 23 adjusted to reflect the allocation of Net Profit or Net Loss attributable to the Capital Transaction giving rise to such Net Capital Proceeds. 9.3 Capital Account Allocation of Net Profit and Net Loss From Capital Transactions. Except as otherwise provided in this Agreement, Net Profit and Net Loss recognized by the Company from any Capital Transaction shall be allocated in the following priority and manner: (a) First, all Net Profit (but not Net Loss) from a Capital Transaction shall be allocated to the Members having Adjusted Capital Account Deficits in proportion to their respective negative balances until the amount of such allocated Net Profit eliminates said Members' negative balances in their respective Capital Accounts at the time of the Capital Transaction; (b) Next, Net Profit from a Capital Transaction in excess of the amount described in Section 9.3(a) shall be allocated to the Members until the balances in each of their Capital Accounts equal the total Additional Capital Contributions of the Members made under Section 8.2, less all cash previously distributed to the Members reflecting a return of Capital Contributions under Section 9.2 (d) . (c) Next, Net Profit from a Capital Transaction in excess of the amount described in Section 9.3(b) shall be allocated to the Members until the balances in each of their Capital Accounts equal the total Capital Contributions of the Members made under Section 8.1, less all cash previously distributed to the Members reflecting a return of Capital Contributions under Section 9.2(e). (d) Next, Net Profit shall be allocated to Henry E. Miller, Jr. and Lionel L. Yow in the amount of any accrued but unpaid Net Cash Flow distribution under Section 9.1(a)(i) for which an allocation of such profit has not previously been made under Section 9.1(b)(i)(A) (e) Next, all Net Profit in excess of the amount of such profit allocated under Section 9.3(a) through 9.3(d) shall be allocated to the Members in proportion to their Percentage Interests as adjusted. (f) Notwithstanding the foregoing, if upon the sale of the Property in liquidation of the Company, Turnpike Properties, L.L.C. would not otherwise receive a distribution of Net Capital Proceeds under Section 9.2(g), the Net Profit from Capital Transactions shall be allocated under Seciton 9.3(d) shall be made in the same manner as the Net Capital Proceeds distribution in Section 9.2(h). j1E C E I V ED Page 24 00{ OCT 0 3 -"437 DWQ PROJ # (g) Unless otherwise provided herein, Net Loss from a Capital Transaction shall be allocated to the Members in proportion to their Percentage Interests. 9.4 Special Allocations. The following allocations shall be made in the following order: (a) Minimum Gain Chargeback. Except as otherwise provided in Treasury Regulation § 1.704-2(f), notwithstanding any other provision of this Section 9.4, if there is a net decrease in Company Minimum Gain during any Company Fiscal Year, the Members shall.be specially allocated items of Company income and gain for such year (and if necessary in subsequent years) in an amount equal to such Member's share of the net decrease in Company Minimum Gain, determined in accordance with Treasury Regulations § 1.704-2(g)• Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with §§1.704-2(f)(6) and 1.704-2(j)(2) of the Treasury Regulations. This Section 9.4(a) is intended to comply with the minimum gain chargeback requirement in §1.704-2(f) of the Treasury Regulations and shall be interpreted consistently therewith. (b) Member Minimum Gain Chargeback. Except as otherwise provided in §1.704-2(i)(4) of the Treasury Regulations, notwithstanding any other provision of this Section 9.4, if there is a net decrease in Member Minimum Gain attributable to a Member Nonrecourse Debt during any Company Fiscal Year, each Member who has a share of the Member Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Treasury Regulations § 1.704-2(i)(5), shall be specially allocated items of Company income and gain for such year (and if necessary in subsequent years) in an amount equal to such Member's share of the net decrease in Member Minimum Gain attributable to such Member Nonrecourse Debt, determined in accordance with Treasury Regulations §1.704-2(i)(4), that is allocable to such Member Nonrecourse Debt. Allocations pursuant to the previous sentence shall be made in proportion to the respective amounts required to be allocated to each Member pursuant thereto. The items to be so allocated shall be determined in accordance with §§1.704-2(i)(4) and 1.704-2(j)(2) of the Treasury Regulations. This Section 9.4(b) is intended to comply with the minimum gain chargeback requirements in §1.704-2(i)(4) of the Treasury Regulations and shall be interpreted consistently therewith. (c) Qualified Income Offset. In the event any Member unexpectedly receives any adjustments, allocations, or distributions described in §§1.704-1(b)(2)(10(d)(4); 1.704-1(b)(2)(ii)(d)(5) or 1.704-1(b)(2)(ii)(d)(6) of the Treasury Regulations, items of Company income and gain shall be specially allocated to each such Member in an amount and manner sufficient to eliminate, to the extent Page 25 required by the Regulations, the Adjusted Capital Account Deficit of such Member as quickly as possible; provided that an allocation pursuant to this Section 9.4(c) shall be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit after all other allocations provided for in this Section 9 have been tentatively made as if this Section 9.4(c) were not a part of this Agreement. (d) Gross Income Allocation. In the event any Member has an Adjusted Capital Account Deficit at the end of any Company Fiscal Year, which is in excess of the sum of (i) the amount such Member is obligated to restore pursuant to any provision of this Agreement, and (ii) the amount such Member is deemed to be obligated to restore pursuant to the penultimate sentence of Treasury Regulations §§1.704-2(g)(1) and 1.704-2(i)(5), each such Member shall be specially allocated items of Company income and gain in the amount of such excess as quickly as possible, provided that an allocation pursuant to this Section 9.4(d) shall be made only if and to the extent that such Member would have an Adjusted Capital Account Deficit in excess of such sum after all other allocations provided for in this Section 9 have been made as if Section 9.4(c) hereof and this Section 9.4(d) were not a part of this Agreement. (e) Nonrecourse Deductions. The Nonrecourse Deductions shall be specially allocated in the same proportions as Net Loss. (f) Member Nonrecourse Deductions. Any Member Nonrecourse Deductions for any Fiscal Year or other period shall be specially allocated to the Member(s) who bear the economic risk of loss with respect to the Member Nonrecourse Debt to which such Member Nonrecourse Deductions are attributable in accordance with Treasury Regulations § 1.704-2(i)(1). (g) Section 754 Adjustments. To the extent an adjustment to the adjusted tax basis of any Company asset in accordance with Code §734(b) or Code §743(b) is required pursuant to Treasury Regulations § 1.704-1(b)(2)(iv)(m) to be taken into account in determining Capital Accounts as a result of a distribution to a Member in complete liquidation of the Company, the amount of such adjustment to the Capital Accounts shall be treated as an item of gain (if the adjustment increases the basis of the asset) or loss (if the adjustment decreases such basis) and such gain or loss shall be specially allocated to the Members in a manner consistent with the manner in which their Capital Accounts are required to be adjusted pursuant to such sections of the Regulations. 9.5 Curative Allocations. The allocations set forth in Sections 9.4 hereof (hereinafter referred to as an the "Regulatory Allocations") are intended to comply with certain requirements of the Regulations. It is the intent of the Members that, to the extent possible, all Regulatory Allocations shall be offset either with other Regulatory Allocations or with special allocations of Net Profit or Net Loss pursuant Page 26 to this Section 9.5. Therefore, notwithstanding any other provision of this Section 9. (other than the Regulatory Allocations), the Manager(s) shall make such offsetting special allocations of Net Profit or Net Loss in whatever manner they determine appropriate so that, after such offsetting allocations are made, each Member's Capital Account balance is, to the extent possible, equal to the Capital Account balance such Member would have had if the Regulatory Allocations were not part of the Agreement. In exercising its discretion under this Section 9.5, the Manager(s) shall take into account future Regulatory Allocations under Sections 9.4(a) and 9.4(b) that, although not yet made, are likely to offset other Regulatory Allocations previously made under Sections 9.4(c) and 9.4(d). 9.6 Other Allocation Provisions. (a) Solely for purposes of determining a Member's proportionate share of the "Excess Nonrecourse Liabilities" of the Company within the meaning of Treasury Regulations § 1.752-3(a)(3) (or the equivalent Sections of any earlier Regulations which may be determined to be applicable), the Members' interests in Company profits are the same as their Percentage Interests. (b) Subject to the Code §704(c) special allocation and any other provision under this Section 9 to the contrary, all allocations and distributions hereunder to Members shall be allocated and distributed among the individual Members in accordance with their respective Percentage Interests. 9.7 Varying Interests. (a) In the event additional Members are admitted to the Company on different dates during any Fiscal Year the Net Profit (or Net Loss) and Capital Transaction Allocations for each such Fiscal Year shall be allocated among the Members in accordance with their Percentage Interests from time to time during such Fiscal Year in accordance with Code §706, using any convention permitted by law and selected by the Manager(s). For purposes of determining the Net Profit, Net Loss, profit from Capital Transactions, loss from Capital Transactions or any other items allocable to any period, Net Profit, Net Loss, profit from Capital Transactions, loss from Capital Transactions and any such other items shall be determined on a daily, monthly or other basis, as determined by the Manager(s) using any permissible method under Code §706 and the Treasury Regulations thereunder. (b) Distribution of cash or property in respect of Membership Interests shall be made only to the Member who according to the books and records of the Company, is the holder of such Membership Interests in respect of which such distribution is made on the record date for such distribution. The record date for all distributions of Net Capital Proceeds shall be the date selected by the Manager(s). Page 27 (c) The Manager(s) shall not incur any liability for making allocations and distributions in accordance with the provisions of this Section 9.7, whether or not the Manager(s) have knowledge or notice of any transfer or purported transfer of ownership of any Membership Interests unless the Company has been notified in writing with respect to such transfer. 9.8 Manager's Discretionary Powers. The allocation method set forth in this Section 9 is intended to allocate Net Profit or Net Loss and profit and loss from Capital Transactions to the Members for federal tax purposes in accordance with their economic interests in the Company while complying with the requirements of Code §704(b) and the Treasury Regulations promulgated thereunder. If, in the opinion of the Manager(s), the allocation of Net Profit or Net Loss and profit and loss from Capital Transactions pursuant to the preceding provisions of this Section 9 shall not: (a) satisfy the requirements of Code §704(b) or the Treasury Regulations thereunder; (b) comply with any other provisions of the Code or Treasury Regulations; or (c) properly take into account any expenditure made by the Company or transfer of a Membership Interests, then notwithstanding anything to the contrary contained in the preceding provisions of this Section 9, Net Profit or Net Loss and profit and loss from Capital Transactions shall be allocated in such manner as the Manager(s) in their sole and unrestricted discretion determine to be required so as to reflect properly (a), (b) or (c), as the case may be, and the Manager(s) shall have the right to amend this Agreement without action by the Members to reflect any such change in the method of allocating Net Profit or Net Loss and profit and loss from Capital Transactions; provided, however, that any change in the method of allocating profits or losses shall not materially alter the economic agreement between the Members. 9.9 Tax Status, Elections and Modifications to Allocations. (a) Notwithstanding any provision contained in this Agreement to the contrary, solely for federal income tax purposes, each of the Members hereby recognizes that the Company will be subject to all provisions of Subchapter K of the Code; provided, however, that the filing of all required returns thereunder shall not be construed to extend the purposes of the Company or expand the obligations or liabilities of the Members. (b) A majority of the Managers, in their sole discretion, may cause the Company to elect pursuant to § 754 of the Code and the Treasury Regulations thereunder to adjust the basis of the Company assets as provided by § § 743 or 734 of the Code and the Treasury Regulations thereunder. The Company shall make such elections for Federal income tax purposes as may be determined by such Managers, acting in their sole and absolute discretion. (c) The Managers shall prepare and execute any amendments to this Agreement (without action or consent of the Members) necessary for the Company to comply with the provisions of Treasury Regulations §§ 1.704-1(b), Page 28 1.704-1(c) and 1.704-2 upon the happening of any of the following events: (i) incurring any liability which constitutes a "nonrecourse liability" as defined in Treasury Regulation § 1.704-2(b)(3) or a "partner nonrecourse debt" as defined in Treasury Regulation § 1.704-2(b)(4); (ii) a constructive termination of the Company pursuant to § 708(b)(1)(B) of the Code ; or (iii) the contribution or distribution of any property, other than cash, to or by the Company. 9.10 Tax Matters Partner. A majority of the Managers shall designate one of the Managers as the "Tax Matters Partner" for federal income tax purposes. The Tax Matters Partner is responsible for and required to represent the Company in connection with all administrative and judicial proceedings for the assessment and collection of tax deficiencies or the refund of any tax overpayment arising out of any Members' distributive share of items of income, deduction, credit and/or of any other Limited Liability Company items (as that term is defined in the Code or in the Treasury Regulations) allocated to the Members affecting any Member's tax liability. The Tax Matters Partner is authorized to expend Company funds for professional services and costs associated therewith. The Tax Matters Partner shall promptly give notice to all Members of any administrative or judicial proceeding pending before the Internal Revenue Service, or any state or local tax authorities involving any Limited Liability Company item and the progress of any such proceeding. Such notice shall be in compliance with such regulations as are issued by the Department of the Treasury, or any state or local tax authority. The Tax Matters Partner shall have the final decision making authority with respect to all federal, state or local tax matters involving the Company. The Tax Matters Partner shall have all the powers provided to a tax matters partner in § § 6221 through 6233 of the Code, including the specific power to extend the statute of limitations with respect to any matter which is attributable to any Limited Liability Company item or affecting any item pending before the Internal Revenue Service or any State or Local tax authority, and to select the forum to litigate any tax issue or liability arising from Limited Liability Company items. The Members agree to cooperate with the Tax Matters Partner and to do or refrain from doing any or all things reasonably required by the Tax Matters Partner to conduct such proceedings. Any direct out-of-pocket expense incurred by the Tax Matters Partner in carrying out his obligations hereunder shall be allocated to and charged to the Company as an expense of the Company for which the Tax Matters Partner shall be reimbursed. The Tax Matters Partner shall be responsible for timely filing all tax returns, franchise and/or excise tax returns and annual reports of the Company. 9.11 Records and Reports. At the expense of the Company, the Managers shall maintain records and accounts of all operations and expenditures of the Company. The Company shall keep at its principal place of business the records required by the Act to be maintained there. Page 29 9.12 Books of Account. (a) The Company shall maintain the Company's books and records and shall determine all items of Income, Loss, Net Income, Net Loss, Net Cash Flow, Net Capital Proceeds, and profit and loss from Capital Transactions in accordance with the method of accounting selected by the Managers, consistently applied. All of the records and books of account of the Company, in whatever form maintained, shall at all times be maintained at the principal office of the Company and shall be open to the inspection and examination of the Members or their representatives during reasonable business hours. Such right may be exercised through any agent or employee of a Member designated by it or by an attorney or independent certified public accountant designated by such Member. Such Member shall bear all expenses incurred in any examination made on behalf of such Member. (b) All expenses in connection with the keeping of the books and records of the Company and the preparation of audited or unaudited financial statements required to implement the provisions of this Agreement or otherwise needed for the conduct of the Company's business shall be borne by the Company as an ordinary expense of its business. 9.13 Company Tax Return and Annual Statement. The Managers shall cause the Company to file a Federal income tax return and all other tax returns required to be filed by the Company for each Fiscal Year or part thereof, and shall provide to each person who at any time during the Fiscal Year was a Member an annual statement (including a copy of Schedule K-1 to Internal Revenue Service Form 1065) indicating such Member's share of the Company's income, loss, gain, expense and other items relevant for Federal income tax purposes. Such annual statement may be audited or unaudited as required by the Managers. 9.14 Bank Accounts. The bank account or accounts of the Company shall be maintained in the bank approved by a majority of the Managers. The terms governing such accounts shall be determined by a majority of the Managers and withdrawals from such bank accounts shall only be made by such parties as may be approved by the Managers. 9.15 Withholding. The Company shall comply with withholding requirements under Federal, state and local law and shall remit amounts withheld to and file required forms with the applicable jurisdictions. To the extent the Company is required to withhold and pay over any amounts to any authority with respect to distributions or allocations to any Member, the amount withheld shall be treated as a distribution in the amount of the withholding to that Member. In the event of any claimed over withholding, Members shall have no rights against the Company or any other Member. If the amount withheld was not withheld from actual distributions, the Company may, at its option, (i) require the Member to reimburse the Company for such withholding or (ii) reduce any subsequent distributions by the amount of such withholding. Each Member agrees to furnish the Company with any representations Page 30 in such form as shall reasonably be requested by the Company to assist it in determining the extent of, and in fulfilling, its withholding obligations. SECTION X - TRANSFERABILITY OF MEMBERSHIP INTERESTS; ADMISSION OF MEMBERS 10.1 Restriction Against Transfer of Membership Interests. Except as specifically provided in this Agreement, no Member shall sell, transfer, assign, pledge, encumber, mortgage, hypothecate or in any way alienate all or any part of his or her Membership Interests in the Company or any right to profits therefrom of such Membership Interests, involuntarily or by operation of law, or by gift, bequest or other- wise except with the prior written consent of all of the Members, except that a Member shall be entitled to make gifts or bequests of Membership Interests to his spouse, children and/or grandchildren and/or more remote issue, or to trusts for the benefit of such spouse, children and/or grandchildren and/or more remote issue. A transfer out of a trust or estate to any of the donees specified above shall also be permitted. No Member shall encumber or use any of his Membership Interests as security for any loan, except upon the written consent of all of the Members, or except as otherwise provided hereunder. Any transfer of Membership Interests in violation of this Section X shall be null and void, and each Member and successor agrees that any such transfer or acquisition may and should be enjoined or rescinded. The restrictions contained in this Section X shall apply to all current Members and future Members or holders of Membership Interests. Any person who receives Membership Interests from a transaction permitted under this Section X shall be subject to the restrictions of this Agreement. Notwithstanding the foregoing, Henry E. Miller, Jr. and Lionel L. Yow may, individually or collectively, sell or transfer their respective Membership Interests (i) to a Limited Liability Company owned or controlled by them or their spouse, children and/or grandchildren and/or more remote issue, (ii) to trusts for the benefit of such spouse, children and/or grandchildren and/or more remote issue, or (iii) from a Limited Liablity Company described in Section 10.1(i) to trusts for the benefit of such spouse, children and/or grandchildren and/or more remote issue without the prior written consent of any of the Members. Additionally such transfers by Henry E. Miller, Jr, and Lionel L. Yow shall not grant the Company nor the Members a Company/Member Purchase Option under Section 10.3 or Section 10.4. 10.2 Rights of Assignee. Any assignee or transferee of Membership Interests in the Company shall be entitled to receive the Net Cash Flow and Net Capital Proceeds distributions to which the assignor or transferror of said Membership Interests is entitled to receive; provided, that no assignment or transfer of any interest hereunder shall cause the person acquiring such interest to become a substitute Member. An assignee may be admitted as a Member only as specifically provided in this Agreement. A substitute Member shall execute all documents and perform all acts which the Managers may require or otherwise deem appropriate to effect the substitution of a Member's assignee as a substitute Member, and shall pay, as the Managers may determine, all actual expenses relating to such substitution. Page 31 10.3 Company/Member Purchase Option. The Company and the Members are hereby given an option to acquire a Member's Membership Interests upon the events specified in Section 10.4 (hereinafter referred to as the "Company/Member Purchase Option"). This shall mean that the Company may exercise an option to purchase all or any portion of the Membership Interests subject to the option for the Purchase Price and on the terms provided herein. The Company's option shall be forfeited unless it is exercised within the Primary Option Period provided in the paragraph granting the option. If the Company does not elect, by a Majority in Interests of the non -offering Members, to purchase all of the Membership Interests subject to its option, or forfeits all or any portion of its option, then the non -offering Members shall have the option to purchase all but not less than all of the remaining Membership Interests that were subject to the Company's option. The non -offering Members shall have Thirty (30) days after the expiration of the Primary Option Period provided to the Company in which to exercise their option. The Company and the non - offering Members shall forfeit their options unless, in the aggregate, they exercise options to purchase all of the Membership Interests of the offering Member which are subject to options. Upon the occurrence of any Triggering Event, any non -offering Member shall only have the right to purchase that proportionate number of Membership Interests subject to such purchase option as equals the proportion that the number of Membership Interests then held by such exercising Member bears to the total number of Membership Interests held by all such exercising Members. If any non - offering Member shall fail to exercise the purchase option, then the other exercising Members may assume and exercise on their own behalf such purchase option on the same proportionate basis as provided in the preceding sentence. References to a Triggering Event shall mean those events set forth in Section 10.4 of this Agreement. 10.4 Occurrences Triggering Purchase and Sale Rights. (a) Death. Upon the death of a Member, the Member's estate or successor in interest shall by operation of this Agreement be deemed to have offered to sell all of the Membership Interests that the deceased Member owned at death for the Purchase Price and on the terms provided herein. The Company and the non -offering Members shall have the Company/Member Purchase Option to acquire such Membership Interests from the deceased Member's estate or successor in interest on the terms provided herein. The Primary Option Period under such Company/Member Purchase Option shall be a period of Ninety (90) consecutive days commencing with the date the deceased Member's personal representative qualifies by letters testamentary or letters of administration. The estate of the deceased Member or successor in interest shall be obligated to sell the Membership Interests subject to the purchase rights provided herein and the estate of the deceased Member or successor in interest shall cooperate with the Company and the non -offering Members to effectuate the purposes of the Agreement. Page 32 In the case of death, the Purchase Price of the deceased Member's Membership Interests shall be their appraised fair market value as provided in Section 10.6. The Valuation Date shall be the last day of the month preceding the date of the Member's death. IL71008n. Ii1i Ti�itEf�3tT� (1) If a Member intends to transfer his Membership Interests to any third party, he shall notify the Company and the non -offering Members in writing of his intention to so transfer and the notice shall be deemed to be an offer to sell such Membership Interests to the Company or other Members for the Purchase Price and on the terms provided herein. The notice, in addition to stating the fact of the intention to transfer Membership Interests, shall state (1) the number of Membership Interests to be transferred, (2) the name, business and residence address of the proposed transferee, (3) whether the transfer is for valuable consideration, and if so, the amount of the consideration, and (4) all of the other terms of the transfer. The non -offering Members holding Membership Interests shall be given a reasonable opportunity to meet with the proposed transferee. (2) The Company and the non -offering Members shall have the Company/Member Purchase Option to acquire the Membership Interests proposed to be transferred for the Purchase Price and on the terms provided herein. The Primary Option Period under such Company/Member Purchase Option shall be a period of Sixty (60) consecutive days commencing on the date the Company receives actual notice from the offering Member of the notice required under Section 10.4(b)(1), or the date an appraisal is received by the Company pursuant to this Agreement, whichever is later. (3) For a period of Ten (10) consecutive days after the expiration of the option granted under this Section 10.4, the Membership Interests may be transferred to the transferee named in the notice required under Section 10.4(b)(1) on the terms stated therein. (4) In the case of a voluntary transfer, the Purchase Price of the Membership Interests under the Section 10.5 shall be their appraised fair market value as provided in Section 10.6. The Valuation Date shall be the: last day of the month preceding the exercise of the purchase option. Notwithstanding the foregoing, if the price, if any, offered to the proposed transferee is less than the Purchase Price deter- mined under this Agreement, then the price so offered to the proposed transferee shall be the Purchase Price of the Membership Interests under this Agreement. (c) Involuntary Transfer. If Membership Interests are transferred by operation of law to any person other than the Company (such as, but not limited to, a Member's trustee in bankruptcy, a purchaser at any creditor's or court sale, the guardian of an incompetent Member, or a Member's spouse or formerr�gVstupen I V E D Page 33 R OCT 03 ZnUu7 DWO PROJ # separation or divorce), or if a Member's Membership Interests are subjected to a "charging order" or other creditor's remedy by a court of competent jurisdiction, then the current owner or holder of such Membership Interests shall be deemed by operation of this Agreement to have offered to sell such Membership Interests for the Purchase Price and on the terms provided herein. The Company and the non -offering Members shall have the Company/Member Purchase Option to acquire such transferred Membership Interests on the terms provided herein. The Primary Option Period under such Company/Member Purchase Option shall be a period of Sixty (60) consecutive days commencing on the date the Company receives actual notice of such transfer, or the date an appraisal is received by the Company pursuant to this Agreement, whichever is later. This Section 10.4(c) shall not apply to Membership Interests passing by reason of a Member's death. The Purchase Price of Membership Interests purchased under this Section 10.4(c) is set forth in Section 10.5, except the Membership Interests may be purchased from a third party for the same consideration paid by such third party in the case of an Involuntary Transfer contrary to this Section 10.4(c), if such transfer was at a price less than the Purchase Price as set forth in Section 10.5. The Valuation Date shall be the last day of the month preceding the exercise of the purchase option. 10.5 Purchase Price of Membership Interests. Except as otherwise provided under Section 10.4, the Purchase Price of a Member's Membership Interests shall be the appraised fair market value of such Membership Interests as provided in Section 10.6 below. The Members acknowledge that in valuing the Membership Interests, the appraiser shall consider all factors appropriately considered in valuing similar Membership Interests in limited liability companies. 10.6 Appraisal Process. The offering Member and the remaining Members shall attempt to agree upon a qualified business appraiser who shall determine the fair market value of Membership Interests with a written appraisal, and such appraisal shall be binding on each to set the Purchase Price of Membership Interests under Section 10.5. If the Members cannot agree upon one appraiser, then the remaining Members and the offering Member shall each employ their own separate appraiser and the fair market value of Membership Interests mutually determined by both appraisers shall control. In the event the original Two (2) appraisers cannot agree, a third appraiser shall be appointed by the original Two (2) appraisers and the Three (3) appraisers shall agree upon the fair market value of the Membership Interests to be purchased, and if they do not agree, the average of the Three (3) appraisals shall be deemed the fair market value of the Membership Interests to be purchased. The valuation date shall be the date designated as the Valuation Date under Section 10.4. The expense of the appraisals shall be borne equally by the selling Member on the one hand and the Company and/or the remaining Members on the other. 10.7 Terms of Purchase. The Purchase Price for the Membership Interests purchased shall be paid in cash at closing except that, at the option of the Page 34 purchasing party or parties, Twenty Percent (20%) shall be paid in cash at closing with Eighty Percent (80%) of the Purchase Price deferred for Five (5) years with Twenty (20) quarterly annual payments of principal along with accrued interest at the rate quoted from time to time by the Wa# Street Journal as its prime rate, plus Two Percent (2%), adjusted quarterly with a ceiling of Ten Percent (10%) and a floor of Four Percent (4%), with the first payment beginning on the first day of the first calendar quarter after the closing and additional payments due on the first day of each calendar quarter thereafter, until paid in full. The deferred portion of the Purchase Price shall be evidenced by the promissory note of each purchasing party. Such promissory note (hereinafter referred to as the "Note") of the purchasing party shall be on the same terms and in substantially the same form as that set forth in a standard bar form promissory note. The Note shall be secured by the Membership Interests purchased. 10.8 Closing. Unless otherwise agreed by the parties, the closing of the sale and purchase of a Member's Membership Interests under the terms of this Agreement (hereinafter referred to as an the "Closing") shall take place at the general office of the Company. The Closing shall be held Sixty (60) days after the exercise of the purchase option. Upon the Closing, the selling and purchasing parties shall execute and deliver to each other the various documents which shall be required to carry out their undertakings hereunder, including the payment of cash, the execution and delivery of Notes, and the assignment and delivery of certificates representing ownership, if any. 10.9 Withdrawal Upon Permitted Transfer. Upon a sale or other transfer of a Member's Membership Interests as permitted under this Section X, such selling or transferring Member shall be permitted to withdraw from the Company only upon the written consent of the remaining Members, and the transferee may only be admitted to the Company as a substitute Member or new Member pursuant to Section 10.11. 10.10 Deficit Capital Account Obligations. Notwithstanding any other provision of this Agreement to the contrary, if upon the purchase by the remaining Member(s) of the Membership Interests of a selling Member in accordance with Section VIII or Section X, it is determined that the selling Member has a deemed negative Capital Account (i.e., that the selling Member would have a negative Capital Account under Section IX, if all of the Company assets were sold at their fair market value, all Company debt was repaid and the Company was liquidated with all remaining Company funds distributed to the Members in accordance with Section IX of this Agreement) for which the remaining Members would be personally liable upon liquidation if not paid by the selling Member, then the selling Member shall make a cash payment to the Company to the extent of its deemed negative Capital Account. Such payment shall be made to the Company upon the assignment and transfer of the selling Member's Membership Interests to the remaining Member(s) with such cash payment and transfer to occur not later than sixty (60) days after the final Page 35 determination of value. If the selling Member fails to assign and transfer such Membership Interests and make a cash payment sufficient to restore its deemed negative Capital Account within the specified time period, the selling Member's Membership Interests shall be deemed to have been assigned and transferred to the remaining Member(s). The selling Member shall continue to be liable to negative value of its Capital Account until paid in full and any unpaid amount shall accrue interest at the lesser of Eighteen Percent (18%) per annum or the maximum rate allowed by law. The selling Member shall execute a promissory note to evidence any unpaid amount. Each of the Members hereby constitutes and appoints each other Member as his true and lawful representative and attorney -in -fact, in his name, place and stead to make, execute, sign and file all instruments necessary for the continued existence of the Company under state and federal law, and for the purpose of signing and executing any and all documents required to transfer and assign any selling Member's Membership Interests pursuant to this Section X. This power of attorney shall be irrevocable and deemed coupled with a Membership Interests. This grant of a power of attorney shall apply only with respect to the provisions of this Section 10.10. 10.1 1 Admission of New Members. New Members to the Company may only be admitted with the unanimous consent of the Members, upon compliance with all terms specified by the Managers and upon receipt by the Company of an opinion of counsel, satisfactory in form and substance to a Majority of the Managers, that neither the offering nor the proposed sale of the Membership Interests will violate any Federal or applicable state securities law and that neither such offering or sale will adversely affect the Company's classification or treatment as a Limited Liability Company. SECTION XI - DISSOLUTION AND TERMINATION 11 .1 Withdrawal. Except as otherwise provided in this Agreement, no Member shall at any time retire or withdraw from the Company or withdraw any amount out of his Capital Account. Any Member retiring or withdrawing in contravention of this Section 1 1.1 shall indemnify, defend and hold harmless .the Company and all other Members (other than a Member who is, at the time of such withdrawal, in default under this Agreement) from and against any losses, expenses, judgments, fines, settlements or damages suffered or incurred by the Company or any such other Member arising out of or resulting from such retirement or withdrawal. 11.2 Dissolution. (a) The Company shall be dissolved upon the first of the following to occur: Page 36 (i) When the period fixed for the duration of the Company in the Articles of Organization or in Section 2.5 of this Agreement shall expire; (ii) Upon the election to dissolve the Company by all of the Members; (iii) Upon the happening of any event of withdrawal (as defined in Section 57C-3-02(3),(4) and (5) of the Act) with respect to any Member, unless there are at least two (2) remaining Members and the business of the Company is continued by the written consent of a Majority in Interests within Ninety (90) days of the action by or affecting the withdrawing Member; (iv) The entry of a decree of judicial dissolution or the issuance of a certificate for administrative dissolution under the Act; or (v) If all of the property of the Company is distributed to the Members and creditors of the Members. (b) Upon dissolution of the Company, the business and affairs of the Company shall terminate and be wound up, and the assets of the Company shall be liquidated under this Section XI. (c) Dissolution of the Company shall be effective as of the day on which the event occurs which gives rise to the dissolution, but the Company shall not terminate until there has been a winding up of the Company's business and affairs, and the assets of the Company have been distributed as provided in Sections 11.3 and 11.4, respectively. (d) Upon dissolution of the Company, a majority of the Managers may cause all or any part of the assets of the Company to be sold in such manner as such Managers shall determine in an effort to obtain the best prices for such assets; provided, however, that the Managers may distribute assets of .the Company in kind to the Members to the extent practicable. 11.3 Articles of Dissolution. Upon the dissolution and commencement of the winding up of the Company, the Managers shall cause Articles of Dissolution to be executed on behalf of the Company and filed with the Secretary of State, and a Manager or authorized Member shall execute, acknowledge and file any and all other instruments necessary or appropriate to reflect the dissolution of the Company. 11.4 Distribution of Assets Upon Dissolution. In settling accounts after dissolution, the assets of the Company shall be paid in the following order: Page 37 �E C E I V En ►u�Su IIVI! OCT 0 3 2307 DWQ PROJ a (a) Payment of the debts and liabilities of the Company, in order of priority provided by law (but excluding any Member loans to the Company), and payment of the expenses of liquidation; (b) Setting up of such reserves as a majority of the Managers may deem reasonably necessary for any contingent or unforeseen.liabilities or obligations of the Company or any obligations or liabilities not then due and payable; provided, any balance of such reserve, at the expiration of such period as the Managers shall deem advisable, shall be distributed in the manner hereinafter provided; (c) In the event any Member loans under Section 8.3, 8.4, 8.5 and 8.9 together with any interest accrued thereon, have not been fully repaid to the makers thereof, any such unrepaid Member loans with accrued interest shall be repaid to the makers thereof in the relative proportions that the outstanding balance of each Member's loans to the Company bears to the aggregate outstanding balance of all such loans, until all such loans have been repaid out of the first available assets remaining after payment of the items set forth in subsections (a) and (b) above; and (d) Distribution to the Members, in the relative proportions that their Capital Accounts, adjusted to the date of distribution, bear to each other immediately prior to the distribution. Upon distribution and termination and after distributions have been made as provided above, if any Member's Capital Account has a deficit balance (after giving effect to all contributions, distributions, and allocations for all taxable years, including .the year during which such liquidation occurs), such Member shall not be liable, except as provided in this Agreement, to contribute to the capital of the Company the amount necessary to restore such deficit balance to Zero (0). In the discretion of the Managers, a pro rata portion of the distributions that would otherwise be made to the Members pursuant to this Section 11.4 may be: (1) Distributed to a trust established for the benefit of the Members for the purposes of liquidating Company assets, collecting amounts owed to the Company, and paying any contingent or unforeseen liabilities or obligations of the Company or the Members arising out of or in connection with the Company. The assets of any such trust shall be distributed to the Members from time to time, in the reasonable discretion of the Managers, in the same proportions as the amount distributed to such trust by the Company would otherwise have been distributed to the Members pursuant to this Agreement; or (2) Withheld to provide a reasonable reserve for Company liabilities (contingent or otherwise) and to reflect the unrealized portion of any installment obligations owed by the Company, provided that such withheld amounts shall be distributed to the Members as soon as practicable. Page 38 11.5 Liquidation Report. Within a reasonable time following the completion of the liquidation of the Company's properties, the Manager shall supply to each of the Members a statement prepared by the accountants used by the Company to prepare their last financial statements which shall set forth (i) the assets and liabilities of the Company as of the date of complete liquidation and (ii) each Member's portion of distributions pursuant to Section 1 1.4. 1 1.6 Distributions in Kind. If any assets of the Company are distributed in kind, such assets shall be distributed to the Members entitled thereto as tenants -in - common in the same proportions as the Members would have been entitled to cash distributions if such property had been sold for cash and the net proceeds thereof distributed to the Members. In the event that distributions in kind are made to the Members upon dissolution and liquidation of the Company, the Capital Account balances of such Members shall be adjusted to reflect the Members' allocable share of gain or loss which would have resulted if the distributed property had been sold at its fair market value. 11.7 Savings Clause; Intended Cash Deal. The tax allocation provisions of this Agreement are intended to produce final Capital Account balances which are at levels ("Target Final Balances") which permit liquidating distributions to be made in accordance with the priorities described in Section 9.2. To the extent that the tax allocation provisions of this Agreement would not produce such Target Final Balances, the Members agree, as provided below, to take such actions as are necessary to amend such provisions to produce such Target Final Balances. Notwithstanding the other provisions of this Agreement, allocations of Net Profit, Net Loss, gain from Capital Transactions and loss from Capital Transactions shall be made prospectively as necessary to produce such Target Final Balances (and, to the extent such prospective allocations would not reach such result, the prior tax returns of the company shall be amended to reallocate Net Profit, Net Loss, Net Profit, Net Loss, gain from Capital Transactions and loss from Capital Transactions to produce such Target Final Balances); provided, however, that no allocations of Net Profit, Net Loss, Net Profit, Net Loss, gain from Capital Transactions and loss from Capital Transactions shall be made to the extent that the net effect of such allocation increases any of the Members' negative Capital Accounts. Page 39 SECTION XII - MISCELLANEOUS PROVISIONS 12.1 Member Representations and Agreements. Notwithstanding anything contained in this Agreement to the contrary, each Member hereby represents and warrants to the Company, the Managers and to each other that: (a) the Membership Interests of such Member are acquired for investment purposes only, for the Member's own account, and not with a view to or in connection with any distribution, reoffer, resale or other disposition not in compliance with the Securities Act of 1933, as amended, and the rules and regulations thereunder (the "1933 Act") and applicable state securities laws; (b) such Member, alone or together with the Member's representatives, possesses such expertise, knowledge and sophistication in financial and business matters generally, and in the type of transactions in which the Company proposes to engage in particular, that the Member is capable of evaluating the merits and economic risks of acquiring and holding the Membership Interests and the Member is able to bear all such economic risks now and in the future; (c) such Member has had access to all of the information with respect to the Membership Interests acquired by the Member under this Agreement that the Member deems necessary to make a complete evaluation thereof and has had the opportunity to question the other Members and the Managers (if any) concerning such Membership Interests; (d) such Member's decision to acquire the Membership Interests for investment has been based solely upon the evaluation made by the Member; (a) such Member is aware that the Member must bear the economic risk of an investment in the Company for a indefinite period of time because Membership Interests have not been registered under the 1933 Act or under the securities laws of various states and, therefore, cannot be sold unless such Membership Interests are subsequently registered under the 1933 Act and any applicable state securities laws or an exemption from registration is available; (f) such Member is aware that only the Company can take action to register Membership Interests and the Company is under no such obligation and does not propose to attempt to do so; (g) such Member is aware that this Agreement provides restrictions on the ability of a member to sell, transfer, assign, mortgage, hypothecate or otherwise encumber the Member's Membership Interests; (h) such Member agrees that the Member will truthfully and completely answer all questions, and make all covenants, that the Company or .the Managers may, contemporaneously or hereafter, ask or demand for the purpose of establishing compliance with the 1933 Act and applicable state securities laws; and (i) if that Member is an organization, that it is duly organized, validly existing; and in good standing under the laws of its state of organization and that it has full organizational power and authority to execute and agree to this Agreement and to perform its obligations hereunder. Page 40 12.2 Notice. (a) All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. (b) All notices, demands and requests to be sent to any Manager or Member pursuant to this Agreement shall be deemed to have been properly given or served if addressed to such person at the address as it appears on the Company records and (i) personally delivered, (ii) deposited for next day delivery by Federal Express, or other similar overnight courier services, (iii) deposited in the United States mail, prepaid and registered or certified with return receipt requested or (iv) transmitted via telecopier or other similar device to the attention of such person with receipt acknowledged. (c) All notices, demands and requests so given shall be deemed received: (i) when actually received, if personally delivered, deposited for next day delivery with an overnight courier or telecopied, or (ii) as indicated upon the return receipt if deposited in the United States mail. (d) The Managers and Members shall have the right from time to time, and at any time during the term of this Agreement, to change their respective addresses by delivering to the other parties written notice of such change in the manner prescribed in Section 12.2(b). (a) All distributions to any Member shall be made at the address at which notices are sent unless otherwise specified in writing by any such Member. 12.3 No Action for Partition. No Member shall have any right to maintain any action for partition with respect to the property of the Company. 12.4 Amendments. This Agreement or the Articles of Organization may only be amended or modified by a writing executed and delivered by each of the Members. 12.5 Power of Attorney. Each Member hereby makes, constitutes and appoints each elected Manager as may be serving from time to time, severally, with full power of substitution, as the Member's true and lawful attorney -in -fact, for such Member and in such Member's name, place and stead and for the Member's use and benefit to, with the Member's oral consent for each occurrence, sign and acknowledge, file and record, any amendments hereto among the Members and for the further purpose of executing and filing on behalf of each Member, any documents necessary to constitute the continuation of the Company, the admission or withdrawal of a Member, the qualification of the Company in a foreign jurisdiction (or amendment to such qualification), or the dissolution or termination of the Company, provided such Page 41 continuation, admission, withdrawal, qualification, or dissolution and termination are in accordance with the terms of this Agreement. The foregoing power of attorney is a special power of attorney coupled with a Membership Interests, and shall not be revoked by the dissolution or liquidation of any Member or for any other reason. It may be exercised by any one of said attorneys by listing all of the Members executing any instrument over the signature of the attorney -in -fact acting for all of them. Notwithstanding the foregoing provision of this Section 12.5, the foregoing power of attorney shall not apply where and to the extent that it overlaps and/or is in conflict with the power of attorney granted under Section 8.3(b) and Section 10.10. 12.6 Governing Law, Arbitration. This Agreement is made in North Carolina, and the rights and obligations of the Members hereunder shall be interpreted, construed and enforced in accordance with the laws of the State of North Carolina without regard to conflicts of law principles. Any dispute arising out of or in connection with this Agreement or the breach thereof shall be decided by arbitration to be conducted in North Carolina in accordance with the then prevailing commercial arbitration rules of the American Arbitration Association, and judgment thereof may be entered in any court having jurisdiction thereof. 12.7 Entire Agreement. This Agreement, including all exhibits and schedules to this Agreement, as amended from time to time in accordance with the terms of this Agreement, contains the entire agreement among the parties relative to the subject matters hereof. 12.8 Waiver. No consent or waiver; express or implied, by any Member to or for any breach or default by any other Member in the performance by such other Member of his or its obligations under this Agreement shall be deemed or construed to be a consent or waiver to or of any other breach or default in the performance by such other Member of the same or any other obligations of such other Member under this Agreement. Failure on the part of any Member to complain of any act or failure to act of any of the other Members or to declare any of the other Members in default, regardless of how long such failure continues, shall not constitute a waiver by such Member of his or its rights hereunder. 12.9 Severability. If any provision of this Agreement or the application thereof to any person or circumstance shall be invalid or unenforceable to any extent, the remainder of this Agreement and the application of such provisions to other persons or circumstances shall not be affected thereby, and the intent of this Agreement shall be enforced to the greatest extent permitted by law. 12.10 Binding Agreement. Subject to the restrictions on transferability set forth in this Agreement, this Agreement shall inure to the benefit of and be binding Page 42 upon the undersigned Members and their respective legal representatives, successors and assigns. 12.11 Gender and Number. Where the context shall so require, the use of a pronoun of one gender shall be deemed to include a pronoun of the appropriate gender or the neuter, and words in the singular shall be deemed to include the plural and the plural to include the singular. 12.12 Acceptance of Prior Acts by New Member. Each Person becoming a Member, by becoming a Member, ratifies, affirms and confirms, and agrees to be bound by, all actions duly taken by the Company, pursuant to the terms of this Agreement, prior to the date such Person becomes a Member. 12.13 Captions. Captions are included solely for convenience of reference and if there is any conflict between captions and the text of this Agreement, the text shall control.. 12.14 Benefits of Agreement. Nothing in this Agreement expressed or implied, is intended or shall be construed to give to any creditor of the Company or any creditor of any Member or any other person or entity whatsoever, other than the Members and the Company, any legal or equitable right, remedy or claim under or in respect of this Agreement or any covenant, condition or provisions herein contained, and such provisions are and shall be held to be for the sole and exclusive benefit of the Members and the Company. 12.15 Counterparts. This Agreement may be executed in multiple counterparts, each of which shall be deemed an original for all purposes and all of which when taken together shall constitute a single counterpart instrument. Executed signature pages to any counterpart instrument may be detached and affixed to a single counterpart, which single counterpart with multiple executed signature pages affixed thereto constitutes the original counterpart instrument. All of counterpart pages shall be read as though they were one document and they shall have the same force and effect as if all of the parties had executed a single signature page. 12.16 Further Documents and Actions. The parties hereby agree to take such further actions and execute and deliver to the other such further documents, as may be necessary or convenient from time to time to more effectively carry out the intent and purposes of this Agreement and to establish and protect the rights and remedies created or intended to be created hereunder. 12.17 Successors. Subject to the provisions hereof imposing limitations and conditions upon the sale or other disposition of the Membership Interests of the parties, all of the provisions hereof shall inure to the benefit of and be binding upon the successors and permitted assigns of the parties hereto. Page 43 12.18 Remedies Cumulative. Each right, power and remedy provided herein or now or hereafter existing at law, in equity, by statute or otherwise shall be cumulative and concurrent and shall be in addition to every other right, power or remedy provided for herein or now or hereafter existing at law, in equity, by statute or otherwise, and the exercise or beginning of the exercise by any party of any one or more of such rights, powers or remedies shall not preclude the simultaneous or later exercise by such party of any or all of such other rights, powers and remedies. 12.19 Expenses. Each party hereto shall pay its own expenses incident to the negotiation, preparation and consummation of this Agreement and all other agreements executed and delivered by it hereunder or in connection herewith, including all fees and expenses of its or their respective counsel and accountants. (SIGNATURES ON THE NEXT PAGE) Page 44 IN WITNESS WHEREOF, the undersigned, being all of the Members of the Company, have caused this Agreement to be duly adopted by the Company effective as of the date first written above, and do hereby assume and agree to be bound by and to perform all of the terms and provisions set forth in this Agreement. MEMBERS: Turnpike Properties, L.L.C., a North Carolina jjmjied-liability company Member and Henry E. Miller, Jr. Page 45 NAMES AND ADDRESSES OF MEMBERS Turnpike Properties, L.L.C. 4530 Park Road, Suite 300 Charlotte, NC 28209 Henry E. Miller, Jr. Miller Building Corporation 1410 Commonwealth Drive Wilmington, NC 28403 Lionel L. Yow 1900 Eastwood Road, Suite 11 Wilmington, NC 28403 SCHEDULE A INITIAL CAPITAL CONTRIBUTION $100 Cash Property with FMV of $2,175,750 � /i,3 fin✓' �.d�•/y ��rha�n/ 'Illy/# �f�1A VIM? 0 Pr party with FMV of $1,637,125 I%e loan &' iij # el Jl%l/ch taro/ X�- /JOT AN of rEF�r f(p�./s /Q� j4M1 wi-m •Y� e yr//i4lm CZR'k 1� tf/ ///NE f�dis/�rJ A4 eil&it' xfxpegf V JyP` e-&AP (//J A 711� Itj 0/ i�S/rrsNc/y/vrrif Lof PERCENTAGE INTERESTS 25% Interests 42.795% Interests F7f11/ dP,f/nf1n-04 �p1�%eGJ/rOi Ame Q'/I 10 u 141. /ArIA fky aetunrd. A A6rr /kpat /J>n y Akm'd /f%l? Al w w/�c GrM� IeM.4 r- ej4e / . A AO y AW AA G4w f/Nv< to %ii P /1'A104 A /u d /lot/ 6/4? � Z110"W it 4/6 ,Free �itvlo✓J/r did a f/,Ge. -IAOI Ore-k^)e of /Anr/ SCHEDULE B Managers of the Company Henry E. Miller, III Lat W. Purser, III The undersigned do hereby consent to the election and appointment as Managers of the Company. Date effective the 8 day of 1997. E L z a. UN, 4 -131M Purser, "E OCT 0 3 2007 PROD # DW° SMITH CREEK STATION, L.L.C. TRANSFER OF LIMITED LIABILITY COMPANY MEMBERSHIP INTEREST I, LAT W. PURSER, III, Manager of Turnpike Properties, L.L.C., hereby transfer the following Membership Interest in SMITH CREEK STATION, L.L.C. to the transferee designated below and does irrevocably constitute and appoint the agent designated below to transfer the said Membership Interest on the books of the Limited Liability Company (the "LLC"), with full power of substitution in the premises: Transferee: LAT W. PURSER, III Membership Interest: All of Transferor's 25% Membership Interest in Smith Creek Station, L.L.C. Transfer Agent: ALLEN HUNT Effective Date: September 8, 1997 TRANSFEROR: TURNPIKE PROPERT1ESyL.L.C., allorth Carolina limited liability company W. PURSER, III, Manager The Membership Interest represented by this certificate, and the transfer thereof, are subject to the provisions of that certain Operating Agreement of SMITH CREEK STATION, L.L.C., a copy of which is on file in, and may be examined at, the principal office of the LLC. DT7EK STATION, L.L.C. hereby y . LIO EL L. YOW ::ODMAIGP P W ISEICU LP.CULP_MAIN. GLM:70833.1 accept and copse` to the nE C E 1 V ED OCT 0 3 2007 DWQ PROJ N 1 Cod Lat Purser& Ass"iates,lnc. 4530 Park Road, Suite 300 • Charlotte, North Carolina 28209 ;Telephone: (704) 519-4200 • FAX: (704) 525-8700 Charlotte Jacksonville Orlando Norfolk February 23, 1998 Mr. John Lancaster Miller Building Corporation 1410 Commonwealth Drive Wilmington, North Carolina 28403 RE: Smith Creek Station Wilmington, North Carolina Dear John: Enclosed please find the following documents that need Mr. Miller and Mr. Yow's signatures: 1. The First Amendment of Operating Agreement of Smith Creek Station, L.L.C. 2. Resolution of the Members of Smith Creek Station, L.L.C. Please have these documents signed and Lat will pick them up on Thursday so that we can obtain the remaining signatures. I will then forward fully -executed copies. Thank you for your assistance, and please call should you have questions or need further information. Sincerely, Teresa E. Sdvener Enclosures nE C E I V ED �u;(u OCT 0 3 2001 DWO PROJ # -- GVA Worldwide Commercial Real Estate: Development, Investment Services, Retail Services, Office Services, Industrial Services, Corporate Services And Property Management RESOLUTIONS OF THE MEMBERS OF SMITH CREEK STATION, L.L.C. We, the undersigned, being all of the Members of Smith Creek Station, L.L.C., a limited liability company organized under the laws of the State of North Carolina (the "Company"), do hereby waive any and all requirements for the holding of a meeting or meetings of the Members of the Company and do hereby adopt the following resolutions by signing our written consent hereto: RESOLVED, that the Company by virtue of a capital contribution from Henry E. Miller, Jr. and Lionel L. Yow is the record owner of certain tracts or parcels of land at or near the intersection of Old Eastwood Road (S.R. 1937) and Racine Drive (S.R. 1905), Wilmington, New Hanover County, North Carolina (the "Property"); and FURTHER RESOLVED, that the Company has entered into a loan commitment dated August 25, 1997 with Branch Banking & Trust Co. for two (2) loans of $2,400,000 and $6,000,000, respectively (the "Loans"), for financing of improvements on the Property; FURTHER RESOLVED, that the Members of the Company, after consideration, deem it advisable and in the best interest of the Company to enter into the Loans; FURTHER RESOLVED, that the Members of the Company wish to approve and authorize the following named person (hereinafter referred to as the "Authorized Person") to execute any and all documents on behalf of the Company necessary to consummate the Loans that such Authorized Person shall deem appropriate (including, without limitation, promissory notes in the name of the Company and a deed of trust encumbering the Property): Lat W. Purser, [II FURTHER RESOLVED, that the acts of the Authorized Person on behalf of the Company in bargaining, negotiating and otherwise acting on behalf of the Company in consummating the Loans are hereby ratified, approved and affirmed; FURTHER RESOLVED, that any documents, instruments and agreements required to be executed and delivered for and in the name of the Company by the Authorized Person in connection with the Loans be, and the same are, hereby ratified, approved and affirmed; FURTHER RESOLVED, that the performance of the acts, and the execution and delivery of the documents, instruments and agreements described and provided for herein by the Authorized Person (a) shall be conclusively presumed to be in the usual and regular course of the business of the Company; (b) shall be binding on the Company and (c) shall not be deemed to be in contravention of any provision or restriction of the Company's Operating Agreement or any agreement to which the Company is a party (and if notwithstanding the foregoing there should be �E C E I V ED IunUf OCT 0 3 2007 I. 47g02w I!,0630h 01110 DWC} PROJ # RESOLUTIONS OF THE MEMBERS OF SMITH CREEK STATION, L.L.C. We, the undersigned, being all of the Members of Smith Creek Station, L.L.C., a limited liability company organized under the laws of the State of North Carolina (the "Company'), do hereby waive any and all requirements for the holding of a meeting or meetings of the Members of the Company and do hereby adopt the following resolutions by signing our written consent hereto: RESOLVED, that the Company by virtue of a capital contribution from Henry E. Miller, Jr. and Lionel L. Yow is the record owner of certain tracts or parcels of land at or near the intersection of Old Eastwood Road (S.R. 1937) and Racine Drive (S.R. 1905), Wilmington, New Hanover County, North Carolina (the "Property"); and FURTHER RESOLVED, that the Company has entered into a loan commitment dated August 25, 1997 with Branch Banking & Trust Co. for two (2) loans of $2,400,000 and $6,000,000, respectively (the "Loans"), for financing of improvements on the Property; FURTHER RESOLVED, that the Members of the Company, after consideration, deem it advisable and in the best interest of the Company to enter into the Loans; FURTHER RESOLVED, that the Members of the Company wish to approve and authorize the following named person (hereinafter referred to as the "Authorized Person") to execute any and all documents on behalf of the Company necessary to consummate the Loans that such Authorized Person shall deem appropriate (including, without limitation, promissory notes in the name of the Company and a deed of trust encumbering the Property): Lat W. Purser, III FURTHER RESOLVED, that the acts of the Authorized Person on behalf of the Company in bargaining, negotiating and otherwise acting on behalf of the Company in consummating the Loans are hereby ratified, approved and affirmed; FURTHER RESOLVED, that any documents, instruments and agreements required to be executed and delivered for and in the name of the Company by the Authorized Person in connection with the Loans be, and the same are, hereby ratified, approved and affirmed; FURTHER RESOLVED, that the performance of the acts, and the execution and delivery of the documents, instruments and agreements described and provided for herein by the Authorized Person (a) shall be conclusively presumed to be in the usual and regular course of the business of the Company; (b) shall be binding on the Company and (c) shall not be deemed to be in contravention of any provision or restriction of the Company's Operating Agreement or any agreement to which the Company is a party (and if notwithstanding the foregoing there should be 4 '. mw2wn oexe.ou m j�E C E I V ED ►p�,pf OCT 0 3 2007 DWO PROD # any such inconsistent or conflicting provision or restriction in the Company's Operating Agreement, the same is hereby expressly waived and amended by the terms hereof); FURTHER RESOLVED, that the certification of all of the Members of the Company as to the signatures of the Authorized Person shall be binding on the Company. DATED as of the day of February, 1998. Henry-P. Miller, Jr., Member 4 &�� (SEAL) Lionel L. Yow, Member SCS DEVELOPMENT, L Member By: 62 (SEAL) at IN. Purser, III, Member and Manager lul E C E I !.*, E D W OCT o 3 20o7 D 641114101104] .01110 2 PROJ n — DWQ FIRST AMENDMENT OF OPERATING AGREEMENT OF SMITH CREEK STATION, L.L.C. The undersigned Members of Smith Creek Station, L.L.C. (the "Company") entered into the Operating Agreement of Smith Creek Station, L.L.C. dated September 8, 1997 (the "Operating Agreement"). Such Members desire by this First Amendment of Operating Agreement of Smith Creek Station, L.L.C. (the "Amendment") to reflect the substitution of SCS Development, LLC, a North Carolina limited liability company, as a Member in the place and stead of Turnpike Properties LLC (known in the Operating Agreement as "Turnpike Properties, L.L.C."). NOW, TI3EREFORE, in consideration of the mutual covenants and agreements set forth herein and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledgedged, the Members hereby amend the Operating Agreement as follows: I. Wherever the words "Turnpike Propertes, L.L.C." appear in the Operating Agreement, those words are hereby deleted and replaced with the words "SCS Development, LLC'. 2. SCS Development, LLC is hereby admitted as a Member in the Company, having complied with Section 5.2 of the Operating Agreement by satisfying all of the requirements of Section X of the Operating Agreement and making the necessary Capital Contribution. 3. The Members hereby admit SCS Development, LLC as a Member in substitution for Turnpike Properties LLC under Section 10.2 and Section 10.11 of the Operating Agreement and hereby waive the effect of Section 10.3, Section 10.4(b), Section 10.5, Section 10.6, Section 10.7, Section 10.8 and Section 10.10 of the Operating Agreement as to the substitution of SCS Development, LLC for Turnpike Properties LLC. 4. By their signatures on this Amendment, the Members acknowledge in accordance with Section 10.9 of the Operating Agreement the unanimous written consent of the Members to the withdrawal of Turnpike Properties LLC as a Member and the substitution of SCS Development, LLC as a Member in the place and stead of Turnpike Properties LLC. 1'-IV3bev01100.bb 01110 nE C E 1 V ED lunuf OCT 0 3 2007 DWQ PROD # 5. Other than as amended hereby, the Operating Agreement is hereby ratified. EXECUTED under seal this day of Februaury, 1998. TURNPIKE PROPERTIES LLC, a North Carolina limited liability company By: (SEAL) a W. fir, lll, mber and Manager C D. Marshall, Member and Manager By: (SEAL) Paul B. Bell, Jr., Member and Manager (Signatures Continued) r..nasmwu.ou�ae o! i io lulE C E I V E W OCT 0 3 2007 D PROJ # OW��—_ SCS DEVELOPMENT, LLC, a Carolina limited liability company By: (SEAL) at W. Purser, III, Mei nd Manager By: (SEAL) Richard lb. Marshall, Member and Manager By: (SEAL) Arthur T. Townsend, Member and Manager David E. Solganik, Member and Manager By: (SEAL) Sigurd J. Arnesen, 111, Member and Manager (�E C E I V ED p�,us OCT 0 3 2007 (J.�V)1nOv01! Oebe.01 i 10 DINO PROJ q V A7-�Q Michael P. Easley, Governor YWilliam G. Ross h., Secretary r North Carolina Department of Fnvironmenl and Natural Resources 1 � O C Alan W. Klimek, P.E. Director Division or water Quality May 22, 2007 Mr. Henry E. Miller Smith Creek Station, LLC P.O. Box 42 Wrightsville Beach, NC 28480 Subject:: Stormwater Permit No!SW8970105 Smith Creek Station New Hanover County Dear Mr. Miller. The Division of Water Quality issued a Coastal Stormwater Management Permit, Number SW8970105 to Smith Creek Station, LLC., for a High Density stormwater pond to serve Smith Creek Statiion on 3/11/1997, This permit expired on 3/11/2007. Section .1003(h) of 15 A NCAC 2H .1000 (the stormwater rules) requires that applications for permit renewals shall be submitted 180 days prior to the expiration of a permit and must be accompanied by a processing fee, which is currently set at $420.00. If this is still an active project please complete and submit the enclosed renewal application in a timely manner. If this project has not been constructed and a permit is no longer needed, please submit a request to have the permit rescinded. If you have sold the project, or are no longer the permittee, please provide the name, mailing address and phone number of the person or entity that is now responsible for this permit. Enclosed is a form for change of ownership, which should be completed and submitted if the property has changed hands. Your permit requires that upon completion of construction and prior to operation of the permitted treatment units a certification of completion be submitted to the Division from an appropriate designer for the system installed. This is to certify that the permitted facility has been installed in accordance with the permit, the approved plans, specifications and supporting documentation. Please include a copy of the certification with your permit renewal request and processing fee. Enclosed is a copy of a sample certification. Also enclosed is a new Operation and Maintenance agreement that should be completed and submitted along with your renewal application. You should be aware that failure to provide the Designer's Certification and the operation of a stormwater treatment facility without a valid permit, are violations of NC General Statute 143-215.1 and may result in appropriate enforcement action including the assessment of civil penalties of up to $10,000 per day. If you have any questions, please feel free to contact staff in the stormwater group at 910-796-7215. Since Ed Beck, Regional Supervisor Surface Water Protection Section Wilmington Regional Office Enclosures cc: Wilmington Regional Office North Carolina Division of water Quality Internet: w;ww.ncwamrnualitv.ore One 127 Cardinal drive Extension Phone (910) 796-7215 North Caro] i n a Wilmington, NC 28403 Fax (910)350-2004 ara bly An Equal OpportunitylAffirmative Action Employer- 50%Recycled110% Post Consumer Paper �/��lulbt!!� I IIIIII IIIII INN NIN III 1{� IIIII IIII NNI IIIN ilil I Ih 2007013896 =0R REGISTRPT ION REGISTER OF DEEDS E ECC NEYRHPNOVERPCOUNTYH NC 2%7a2003OABPM BOiF PUB-41 FEE:E20.00 INSiRVMENI 12NI13896 Special Warranty Deed Parcel Identifier No. # R05013-008-040-000 and R05013-008-080-000 Excise Tax -0- No consideration paid. Transfer for business convenience only. This instrument was prepared by: Julie C. Chiu (no title work performed). after recording return to: 7804 Fairview Road, #216 Charlotte, North Carolina 28226 Brief description for the Index: Tract #2-A2, MB 44, page 155, and Tract #3, MB 46, Page 379, Wilmington, NC THIS DEED is made as of the 280' day of February, 2007 by and between Enter in appropriate block for each party: name, address, and if appropriate, character of entity, e.g. corporation or partnership. GRANTOR GRANTEE SMITH CREEK STATION, L.L.C., allorth I SMITH CREEK RETAIL, LLC, a North Carolina limited liability company, Carolina limited liability company, c/o Lat Purser & Associates, Inc. 4530 Park Road, Suite 300 Charlotte, NC 28209 c/o Lat Purser & Associates, Inc. 4530 Park Road, Suite 300 Charlotte, NC 28209 The designation Grantor and Grantee as used herein shall include said parties, their heirs, successors, and assigns, and shall include singular, plural, masculine, feminine or neuter as required by context. WITNESSETH, that the Grantor, for a valuable consideration paid by the Grantee, the receipt of which hereby is acknowledged, has and by these presents does grant, bargain, sell and convey to the Grantee in fee simple, all that certain lot or parcel of land situated in New Hanover County, North Carolina and more particularly described as follows: BEING all of Tract #2-A2 as shown in Map Book 44, page 155, and Tract #3 as shown in Map Book 46, Page 378, in the Office of the Register of Deeds of New Hanover County. The property hereinabove described was acquired by Grantor by instruments recorded in Book 2345 at Page 373 in the New Hanover Public Registry. TO HAVE AND TO HOLD the aforesaid lot or parcel of land and all privileges and appurtenances thereto belonging to the Grantee in fee simple. And Grantor covenants with the Grantee that Grantor has done nothing to impair such title as Grantor receives, and Grantor will warrant and defend the title against the lawful claims of all persons claiming by, under, or through Grantor, except: (a) Ad valorem taxes for 2007 and subsequent years, a lien not yet due or payable; and (b) All valid and enforceable covenants, conditions, restrictions and easements of record as of the date hereof with respect to the property herein conveyed. [Remainder of page left intentionally blank.] 2 IN WITNESS WHEREOF, Grantor has executed this Special Warranty Deed as of the day and year first above written. SMITH CREEK STATION, L.L.C., a North Carolina limited liability company, B 4Q�,— �-�att W, urser, Ill, Manager STATE OF NORTH CAROLINA COUNTY OF k(,jr/Jj3UtjpC-f ►, �IIRSFfA L, MA'T{fE�J , a Notary Public of 16ELkL.4�,116rug( County, State of North Carolina, do hereby certify that Lat W. Purser, III (the "Signatory"), personally came before me this day and acknowledged that he is a Manager of SMITH CREEK STATION, L.L.C., a North Carolina limited liability company, and that he, as Manager, being authorized to do so, executed the foregoing instrument on behalf of the Company. certify that the Signatory personally appeared before me this day, and (check one of the following) _ (I have personal knowledge of the identity of the Signatory); or (I have seen satisfactory evidence of the Signatory's identity, by a current state or federal identification with the Signatory's photograph in the form of: (check one of the following) _ a driver's license or _ in the form of ); or (a credible witness has sworn to the identity of the Signatory). The Signatory acknowledged to me that he voluntarily signed the foregoing instrument for the purpose stated and in the capacity indicated. Witness my hand and official stamp or seal this day of March, 2007. SY%AL,�i9yy OT "m j A •�' CiE .......... ..... [NOTARY SEAL] (MUST BE [Note: Notary Public must sign exactly as on notary seal] My Commission Expires: FULLY LEGIBLE) 3 0 �1 0 REBECCA P. SMITH REGISTER OF DEEDS, NEW HANOVER 216 NORTH SECOND STREET WILMINGTON, NC 28401 IHiHfMffQHfNfYff YHH.1HHfHHHHH1rlfHfiMHHHfHfH'H IIIIFIftHfHNffH�nFi1HNHfHHHHfIHftHftMHfHff Filed For Registration: Book: Document No.: Recorder: 03120/2007 03:44:48 PM RE 5157 Page: 38.41 2007013896 DEED 4 PGS $20.00 SCOTT, NANCY A State of North Carolina, County of New Hanover YELLOW PROBATE SHEET IS A VITAL PART OF YOUR RECORDED DOCUMENT. PLEASE RETAIN WITH ORIGINAL DOCUMENT AND SUBMIT FOR RE-RECORDING. *2007013896* 2007013896 „ �• \ ` \ H° CEP 1 . • / -�.�-� CLCS PRCPERTIES L OUTPARCEL aA _ MAP BOOK a0 PAGE 90 205 ACRES -/- £,m.��� NOW 0'n FORMERLY 1 ' 'M1 'ILL BOOK 900K 0 PAGE 504 RE.K STATION LLC —\1, 1 ou—' ,ANRGDK a2 MAP 9CRE 40 PAGE 90 1.30 ACRES +/- 1 • 1 11 C �In1C? 1 '1 IStCn I na. \ 1 1 \ NOW 0_R iOMERLT \' VANN�BOOK JECa PAGE 11 D 6 y NOW CRFORMERLY '5R-NCO_ BOOK 1403 PAGE 1B`59 10 OE'/E! 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