No preview available
HomeMy WebLinkAboutC08-017Agreement to Provide Deed Restricted Housing on Stratton Flats THIS AGREEMENT TO PROVIDE DEED RESTRICTED HOUSING("Agreement') is made and effective as of the may of , 2008, by and among MERITAGE JFA GYPSUM, LLC, a Delaware limited liability company ("M ritage JFA Gypsum"), STRATTON FLATS, LLC, a Colorado limited liability company ("Stratton Flats") and EAGLE COUNTY, COLORADO ("Eagle County"). This Agreement is made with reference to the following facts: A. Meritage JFA Gypsum is the owner of certain real property described as follows: Parcel A, AMENDED LEHMANN PARCELS, according to the "Amended Exemption Plat Lehmann Parcels" filed June 30, 2006 at Reception No. 200617646, County of Eagle, State of Colorado (the "Pro a "). B. Stratton Flats proposes to purchase the Property from Meritage JFA Gypsum and construct on the Property a residential development consisting of 152 single family homes, 118 townhomes and 69 condominium units (the "Improvements"). Stratton Flats proposes to construct the Improvements on the Property in two phases: "Phase 1," consisting of 42 single family homes, 46 townhomes and 69 condominium units, and "Phase 2," consisting of 110 single family homes and 72 townhomes. Stratton Flats also proposes to construct any and all improvements not on the Property which are required to be in place to make use of the Improvements (the "Offsite Improvements"); the Improvements and the Offsite Improvements are collectively referred to herein as the "Project"). The single family homes, townhomes, and condominium units are referred to collectively herein as "Units" and separately are referred to herein as a "Unit". C. In connection with Stratton Flats' acquisition of the Property and pertormance of the Project, Stratton Flats shall be initially capitalized with a minimum of $4,500,000 of cash, which funds shall be used in part for the purchase of the Property. Stratton Flats shall obtain from CoBiz Bank, a Colorado corporation doing business as Colorado Business Bank ("CoBiz Bank"), a loan (the "Loan"), a portion of which Loan shall be in the maximum principal amount at any time outstanding of $14,700,000.00, for the purposes of funding: (a) a portion of the purchase of the Property, (b) site improvements costs relating to Phase 1 and Phase 2 of the Project, (c) certain soft costs of Phase 1 of the Project, and (d) a portion of interest on the Loan; and a another portion of which Loan shall be in the maximum principal amount at any time outstanding of $2,800,000.00 which shall be used for the purposes of funding payment of hard costs of Phase 1 of the Project and a portion of interest on the Loan. D. Stratton Flats' obligations in connection with the Loan shall be secured by the Property, and the Loan shall be personally guaranteed by Scott B. Russell, individually. E. It is the established policy of Eagle County to promote the creation of affordable housing for Eagle County's workforce. Eagle County's participation in this Agreement is to further the creation of affordable housing. This Agreement creates affordable housing through the purchase of an interest in real property by way of deed-restrictions, which maintain the property's affordability and effect the public purpose of creating affordable housing for Eagle County's workforce. F. To further implement the above policy and in connection with the Project, Eagle County, pursuant to this Agreement, desires to secure Stratton Flats' agreement to acquire the Property, pertorm the Project, and sell the Units to purchasers subject to certain restrictions upon the sales price of the Units as set forth in the attached "2008 BudoeY', as well as Stratton Flats' agreement to subject certain Units to deed restrictions providing for sales price limitations on the resale of Units. F. Accordingly, Eagle County is willing to pay to Stratton Flats, LLC a "Fee" in the sum of $4,500,000.00 at this time to secure its pertormance under this agreement subject to the terms and conditions set forth below. {00136896.DOC / 1}1 G. Meritage JFA Gypsum, for good and valuable consideration of which it is in receipt, is willing, for its part, to provide Eagle County with a Deed of Trust on the Property securing the performance of this Agreement by Stratton Flats as well as the satisfaction of the various terms and conditions set forth hereinafter. NOW THEREFORE, the parties agree as follows: 1. Conditional Payment of Fee. Stratton Flats shall close its acquisition of the Property and shall close the Loan on or before February 28, 2008. Eagle County shall conditionally pay the Fee to Stratton Flats contemporaneous with the signing of this Agreement and the Deed of Trust securing Stratton Flats performance of this Agreement on January 15, 2008. 2. Best Efforts. Stratton Flats, through its Manager Meritage Development Group, LLC, a Colorado limited liability company ("Merits a"), will devote its best skill and efforts, and sufficient time and energy, to its performance of its duties and obligations set forth herein. 3. General Duties of Stratton Flats. In general, Stratton Flats (through Meritage) will be responsible for coordinating, supervising and accomplishing all aspects of the Project and related improvements on the Property, and marketing and sale of the Units, including overseeing site planning, overseeing design of the Project and the Improvements (including architectural, drafting and engineering design), processing and obtaining all permits and approvals (including building, excavation, and other related approvals and permits), and construction of the Improvements (including oversight of obtaining bids, arranging for labor, equipment, materials, and supplies, and the oversight of all survey, site work, landscaping, excavation, driveways and construction), marketing the Units for sale, and selling the Units to purchasers. 4. Specific Duties of Stratton Flats. Stratton Flats' specific duties shall include the following: (a) Acquisition of Property. On or before February 28, 2008, Stratton Flats shall acquire the Property from Meritage JFA Gypsum, together with all land use approvals and any other entitlements reasonably necessary for Stratton Flats to perform the Project. (b) Performance of Project in Compliance with Budget. Stratton Flats, at Stratton Flats' expense, shall perform the Project and sell the Units pursuant to the 2008 Budget. The 2008 Budget sets forth an estimate of all costs, fees, impact fees, and expenses to be incurred by Stratton Flats in connection with: (i) the acquisition of the Property; (ii) the preparation of all necessary land use approvals, site planning, engineering and construction plans and documents; (iii) procuring all land use approvals from applicable governmental bodies in connection with the Project, including without limitation, all building permits and entitlements necessary to develop the Project; (iv) construction activities required to complete the Project in substantial accordance with all land use approvals, site planning, engineering and construction plans and documents through issuance of a final, unconditional certificate of occupancy for each Unit; and (v) marketing and sale of each Unit. Meritage will insure that materials and equipment furnished in connection with the Project will be of good quality and new unless otherwise permitted by approved plans and specifications de$cribed in Section 4 below. (c) General Contractor. Stratton Flats, at Stratton Flats' expense, will hire MG Management, LLC, a Colorado limited liability company (the "General Contractor") to act as general contractor in connection with the Project, and Meritage on behalf of Stratton Flats will be responsible for the oversight and supervision of the General Contractor in connection with the Project. Stratton Flats shall pay the General Contractor a general contractor's fee equal to four percent (4%) of the cost of the work performed by the General Contractor. MG Management, LLC will separately engage Champion Homes, Inc. dba Genesis Homes, to design and construct the Units off-site and to deliver the Units to the Property for assembly, and General Contractor shall be responsible for the receipt, installation and finishing of the Units on the Property. {00136896.DOC / 1}2 (d) Project Architect. Stratton Flats, at Stratton Flats' expense, will hire an architect in connection with the Project who will oversee the performance of the Project and will prepare architectural plans and specifications providing for the design of the condominium buildings for condominium Units to be constructed in connection with the Project. (e) Project Engineer. Stratton Flats, at Stratton Flats' expense, will hire High Country Engineering, Inc. in connection with the Project who will prepare site plans and engineering plans and specifications providing for the design of the condominium buildings for condominium Units to be constructed in connection with the Project. (f) Govemmental Approvals. Stratton Flats (through Meritage) at Stratton Flats' expense, will be responsible for obtaining all required governmental approvals for construction of the Project. (g) Marketing and Sale of Units. Stratton Flats, at Stratton Flats' expense, shall market, list for sale, and sell the Units for sale at such times and upon such terms and conditions as Stratton Flats shall deem appropriate, subject to the provisions of Section 4 immediately below. (h) Reporting and Notices: Provide to Eagle County all reports, cash flow analysis, construction schedules, sales contracts, partial loan release requests and all other documents required by the CoBiz Bank Loan documents at such times as are required by those Loan documents. 5. Marketing and Sale of Units. From and after the date hereof, each Unit type shall be marketed for sale and sold for a price determined pursuant to the 2008 Budget. Stratton Flats will give Eagle County the schedule of construction with response deadlines to determine deed-restriction mix by available Unit type. Eagle County shall provide notice by such response deadlines of Unit mix. If Eagle County does not give timely notice, the deed-restriction mix shall be 1/3 price-appreciation capped, 1/3 non-price appreciation capped, and 1/3 free market. Absent agreement of Eagle and Stratton Flats the total deed-restriction mix of the entire 339 Units shall be as follows: (1) 23 condos, 39 townhomes, and 51 single family units shall be price-appreciation capped (base pricing); (2) 23 condos, 39 townhomes, and 50 single family units shall be non-price appreciation capped (base pricing plus 9%); and (3) 23 condos, 40 townhomes, and 51 single family units shall be free market (base pricing plus 18%). Base pricing includes Stratton Flats obtaining a $3,500,000.00 impact, tap and permit fee discount from Gypsum, Colorado; if Stratton Flats does not obtain this amount, Stratton Flats my adjust its pricing. If such adjustment occurs, however. Eagle County has the right to "get out" of the deal if they don't agree with the price increases. Eagle County may request return of the Fee plus interest, as described herein. The Unit types described in the 2008 Budget shall include standard finishes, fixtures and appliances. To the extent that the purchaser of a Unit requests upgrades to the standard finishes, fixtures, or appliances offered by Stratton Flats, the Deed Restricted Sale Price for such Unit shall be increased by one hundred and fifty percent (150%) of the additional materials or labor costs resulting from such upgrade. The type and costs of such additional materials or labor costs shall be subject to Eagle County's verification from time to time. Stratton Flats shall deliver its first housing product no more than four (4) months after completion of Phase I infrastructure for the Project, beginning approximately in October, 2008. The delivery of Units shall continue on a pace consistent with a construction schedule which shall be provided by Stratton Flats, {00136896.DOC / 1}3 and approved by Eagle County. Stratton Flats shall be in default hereof if there is more than a twelve (12) month lag from sales contract to delivery after October, 2008. Stratton Flats will not be responsible for a slowing market and will only be required to maintain the construction schedule if sales warrant. The Deed Restricted Sale Price for the Units shall increase 1.75% per quarter (7%) per annum from the date that the first Unit is delivered and closed. The product mix as set forth in Recital B above may be modified from time to time if mutually agreed upon by Eagle County and Stratton Flats in the exercise of their reasonable discretion. To the extent that the product mix is modified, delivery pricing will be changed accordingly. 6. Management Fees. During the Project, Stratton Flats may pay to Meritage certain accrued past management fees and future management fees not in excess of Two Million Two Hundred Thousand Dollars and no/100 ($2,200,000.00), subject to the following restrictions: (a) Meritage is currently owed accrued management fees in the amount of Five Hundred Thousand Dollars and no/100 ($500,000) which shall be paid from Stratton Flats to Meritage with proceeds from the Loan upon Stratton Flats' purchase of the Property; and (b) Stratton Flats shall pay to Meritage a monthly management fee in the amount of Forty Seven Thousand Two Hundred and Twenty-Two Dollars and no/100 ($47,222.00) per month for a period of thirty-six (36) months, provided that twenty percent (20%) of such management fees and general contractor fees to be paid to MG Management, LLC, up to a total of Five Hundred Thousand Dollars and no/100 ($500,000.00) shall be "escrowed" by depositing the amounts in a segregated bank account and shall not be paid unless and until Eagle County has received return of $4.5 million plus 6% interest, compounded annually. Escrow of these fees shall cease upon closing of 110 Units of any type. The payment of these fees shall be subject to the terms and conditions set forth hereinafter as to distributions from the Project. 8. Stratton Flats' Additional Affirmative Covenants. Until the completion of all of the Project and the sale of all of the Units, or unless Eagle County shall otherwise consent in writing, Stratton Flats shall perform or cause to be performed the following: (a) Payment of Construction Costs. Stratton Flats shall promptly pay for all labor, materials, equipment and fixtures used in connection with the construction of the Improvements and all other costs relating to the Improvements, except that Stratton Flats may contest in good faith the validity or amount thereof. (b) Completion of Improvements. Stratton Flats shall commence construction of the Improvements within a reasonable time of the closing of its purchase of the Property, proceed without unreasonable interruption and promptly complete the Improvements, in a good and workmanlike manner according to plans and specifications, free from all liens and encumbrances other than the Loan and the Loan Documents, and in accordance with all applicable ordinances and statutes, including zoning laws, all covenants and restrictions running with the land, and all regulations and building codes of any governmental or municipal agency having jurisdiction over the Improvements. (c) Enforcement of Contracts. Stratton Flats shall enforce the contracts for the construction of the Improvements to ensure that the contractors are required to promptly and diligently perform all of their obligations thereunder. (d) Contractor Lists. Stratton Flats, promptly upon request of Eagle County from time to time, shall furnish to Eagle County correct lists of all major subcontractors, suppliers and materialmen employed or retained in connection with the construction of the Improvements, together with, if required by Eagle County, copies of each such contract. Each such list shall show the name, address and telephone number of each such person, a general statement of the nature of the work to be done, the labor and materials to be supplied, the names of materialmen if known, and the approximate dollar value of such labor or work with respect to each. (e) Maintenance of Licenses and Permits. Stratton Flats shall maintain in full force and effect all rights and licenses necessary to carry on its business, and all permits, licenses, consents and {00136896.DOC / 1} 4 approvals necessary for the construction, maintenance and operation of the Improvements. Stratton Flats shall maintain its present existence and shall maintain executive personnel and management at a level of experience and ability reasonably necessary to pertorm the Project and market and sell the Units. (f) Maintenance of Insurance. Stratton Flats shall maintain in full force and effect at all times all insurance coverages required to be provided as a condition of the Loan and the Loan Documents. (g) Compliance with Loan Documents. Stratton Flats shall make all payments of interest and principal on the Loan and shall keep and comply with all terms, conditions and provisions of the Loan and the Loan Documents, and shall notify Eagle County of the occurrence of any event of default under the Loan and the Loan Documents. (h) Financial Statements. Stratton Flats will maintain adequate and accurate books and records of account in accordance with sound accounting principles consistently applied. Eagle County shall have the right (upon reasonable prior notice) to examine and copy such books and records, including all books and records relating to the Project and the Property, to discuss the Project and the Property and all financial matters relating thereto, and to be informed as to the same from time to time as Eagle County might reasonably request. (i) Taxes. Stratton Flats will pay when due all taxes, assessments, governmental charges or levies, and all claims for labor, materials, supplies, rent and other obligations which, if unpaid, might become a lien against the Property. Stratton Flats may contest taxes or assessments by appropriate proceedings so long as no penalties are assessed and no liens are filed against the Property. Q) Hazardous Materials. Stratton Flats shall not hold, treat, store, handle, generate, locate on Hazardous Materials on or part of, the Property. As used herein, the term "Hazardous Materials" includes without limitation, any asbestos, urea formaldehyde foam insulation, flammable explosives, radioactive materials, hazardous materials, hazardous wastes, hazardous or toxic substances, or related or unrelated substances or materials defined, regulated, controlled, limited or prohibited in the Comprehensive Environmental Response Compensation and Liability Act of 1980 ("CERCLA"), (42 U.S.C. Sections 9601, et seq.) as amended by the Supertund Amendments and Reauthorization Act of 1986 ("SARA"), the Hazardous Materials Transportation Act, (49 U.S.C. Sections 1801 et seq.), the Resource Conservation and Recovery Act ("RCRA"), (42 U.S.C. Sections 6901,. et seq.), the Clean Water Act, (33 U.S.C. Sections 1251, et seq.), the Clean Air Act, (42 U.S.C. Sections 7401, et seq.), the Toxic Substances Control Act, (15 U.S.C. Sections 2601 et seq.), each such Act as amended from time to time, or in the rules, regulations and publications adopted and promulgated pursuant thereto, or in the rules and regulations of the Occupational Safety and Health Administration ("OSHA") pertaining to occupational exposure to asbestos, as amended from time to time, or in any other federal, state or local environmental law, ordinance, rule, or regulation now or hereafter in effect. (k) Further Assurances. Stratton Flats will, from time to time, promptly cure any defects or omissions in the execution and delivery of, or the compliance with this Agreement, including the execution and delivery of additional documents reasonably requested by Eagle County. (I) Litigation. Stratton Flats will promptly furnish Eagle County with written notice of any litigation involving any Stratton Flats or Scott B. Russell as guarantor of the Loan, or which, if the outcome were adverse to Stratton Flats or the Guarantor could reasonably be expected to affect the financial condition, business or operations of Stratton Flats or Scott B. Russell as the guarantor of the Loan. (m) Notification of Liens. Stratton Flats will notify Eagle County of the existence or asserted existence of any mortgage, pledge, lien, charge or encumbrance on any of the Property, or any part thereof, forthwith upon Stratton Flats' obtaining knowledge thereof, excluding only: (i) encumbrances in favor of Eagle County; (ii) deposits to secure payment of worker's compensation, unemployment insurance and similar benefits; and (iii) statutory liens arising in the ordinary course of Stratton Flats' business which secure current obligations of Stratton Flats which are not in default and Stratton Flats will {00136896.DOC / 1} promptly (within ten (10) days after teaming thereof) cause to be released of record (by payment of sums due or by posting bond as permitted by applicable law) any such mortgage, pledge, lien, charge or encumbrance affecting the Property. 9. Stratton Flats' Negative Covenants. Until the completion of the Project and the sale of all of the Units, or unless Eagle County shall otherwise consent in writing, Stratton Flats will not perform or permit to be pertormed any of the following acts: (a) Creation or Existence of Liens. Stratton Flats will not create, assume or suffer to exist any mortgage, pledge, lien, charge or encumbrance on the Property, or any part thereof, excluding only: (i) encumbrances in favor of CoBiz or Eagle County; (ii) deposits to secure payment of workmen's compensation, unemployment insurance and similar benefits; (iii) statutory liens, against which there are established reserves in accordance with generally accepted accounting principles, and which arise in the ordinary course of Stratton Flats' business and secure current obligations of Stratton Flats which are not in default; and (iv) liens for property taxes not yet due. (b) Transfer of Property. Except for the sale of Units as provided for herein and in the ordinary course of Stratton Flats' business, Stratton Flats shall not sell, transfer or convey all or any part of the Property or any interest therein. (c) Modification of Organizational Documents. Stratton Flats shall not participate in, suffer or permit the amendment, modification, restatement, cancellation or termination of any document now or hereafter evidencing or relating to Stratton Flats, including, without limitation, the Articles of Organization or the Operating Agreement without the prior written consent of Eagle County, which consent will not be unreasonably withheld. (j) Deferral of Profits Distributions. Stratton Flats shall make no distribution of profits to the member of Stratton Flats until full repayment of the full satisfaction of all of Stratton Flats' obligations hereunder. 10. Inspection of Improvements by Eagle County. Until the completion of all of the Project and the sale of all of the Units, Eagle County shall have the right, but not the obligation, to enter at any reasonable times upon the Property and Improvements to determine if the construction of the Improvements is in conformity with plans and specifications and all other requirements hereof. Eagle County shall have no duty to supervise or inspect any construction or to inspect ;any inspection by Eagle County shall be for the sole purpose of protecting Eagle County's rights and interests hereunder. Failure by Eagle County to inspect any work shall not constitute a waiver of any of Eagle County's rights hereunder. Inspection not followed by notice of an Event of Default shall not constitute a waiver of any Event of Default then existing. Any inspection by Eagle County shall not be a representation by Eagle County that there has been or will be compliance with the Plans and Specifications or that the construction is free from defective materials or workmanship, nor shall any inspection by Eagle County constitute approval of any certification given to Eagle County or relieve any person making such certification of responsibility therefore. 11. Representations and Warranties. In addition to all other representations and warranties of Stratton Flats and Meritage JFA Gypsum, each party, represents and warrants, as of the date hereof, the closing of its purchase of the Property, and at all times until the completion of the Project and sale of all of the Units, that: (a) Existence and Authority of Stratton Flats. Meritage JFA Gypsum and Meritage. They are and will continue to be a limited liability companies duly organized and validly existing under the laws of the State of Colorado, Delaware, and Colorado, respectively with full authority to conduct business within the State of Colorado. Meritage is and will continue to be a limited liability company duly organized and validly existing under the laws of the State of Colorado with full authority to conduct business within the State of Colorado. Stratton Flats and Meritage JFA Gypsum have full power, authority and legal right to own, manage, encumber, and hold title to the Property; and Stratton Flats and Meritage JFA Gypsum have full and legal right, power and authority to enter into and carry out the provisions of this Agreement {00136896.DOC / 1} 6 and all documents to be signed by Stratton Flats pursuant to this Agreement, to borrow money from CoBiz, to give security for borrowing as required by the Loan Documents, and to consummate the transactions contemplated by this Agreement. (b) Conflicting Agreements and Restrictions. Stratton Flats and Meritage JFA Gypsum are not a party to any contracts or agreements or subject to any other restrictions which materially adversely affect their business, property, assets or financial condition. Neither the execution and delivery of the Deed of Trust by Meritage JFA Gypsum or the Loan Documents nor fulfillment and compliance with the terms and provisions thereof, (i) will conflict with or result in a breach of the terms, conditions or provisions of, or constitute a default under, or result in any violation of any agreement, instrument, undertaking, judgment, decree, order, writ, injunction, statute, law, rule or regulation to which Stratton Flats or Meritage JFA Gypsum are subject or by which the Property is bound or affected, (ii) will result in the creation or imposition of any lien, charge or encumbrance on, or security interest in, any property now or hereafter included in the Property pursuant to the provisions of any mortgage, indenture, security agreement, contract, undertaking or other agreement other than the liens and security interests in favor of Eagle County created by the Deed of Trust or Loan Documents, or (iii) will require any authorization, consent, license, approval or authorization of or other action by, or notice or declaration to, or registration with, any court or administrative or govemmental department, commission, board, bureau, authority, agency or body (domestic or foreign), or, to the extent that any such consent or other action may be required, it has been validly procured or duly taken. (c) Actions and Proceedings. To the best of Stratton Flats' and Meritage JFA Gypsum's current information, knowledge and belief, there is no action or proceeding against or investigation of any Stratton Flats or Meritage JFA Gypsum, pending or threatened, which is likely to result in any material adverse change in the business or operations of Stratton Flats or Meritage JFA Gypsum or which in any way materially impairs or adversely affect the ability of Stratton Flats or Meritage JFA Gypsum to perform its obligations thereunder. (d) No Violation of Applicable Law. To the best of the Stratton Flats' and Meritage JFA Gypsum's knowledge, information and belief, Stratton Flats and Meritage JFA Gypsum have not violated and are not currently violating any applicable statute, regulation or ordinance of the United States of America or any foreign country, or of any state, municipality or any other jurisdiction, or of any agency thereof in any respect materially adversely affecting its business, property, assets, operations or condition, financial or otherwise. Stratton Flats and Meritage JFA Gypsum are using their best efforts to comply with all statutes, rules, and regulations relating to environmental standards and controls in all jurisdictions where they are presently doing business. (e) Permits. Stratton Flats has or will timely obtain all govemmental and private permits, certificates, consents which in any respect (i) are material to its business, property, assets, operations or condition, financial or otherwise, (ii) are necessary for it to carry on its business as now being conducted or as contemplated to be conducted, or (iii) are necessary for it to develop the Project on the Property. All such govemmental and private permits, certificates, consents and franchises are valid and subsisting, and Stratton Flats is not in violation thereof. (f) No Defaults. Stratton Flats is not in default of or in breach in any respect under any material contract, agreement or instrument to which such Stratton Flats is a party or by which it or the Property may be bound. (g) Ownership of Property: Liens. Upon closing of its purchase of the Property, Stratton Flats shall have good and marketable title to the Property, and no portion of the Property will be subject to any mortgage, pledge, security interest, encumbrance, lien or charge of any kind, excluding only: (i) the deed of trust given by Stratton Flats to CoBiz in connection with the Loan; (ii) deposits to secure payment of worker's compensation, unemployment insurance and other similar benefits; (ii) liens for property taxes not yet due; (iii) statutory liens, against which there are established reserves in accordance with generally accepted accounting principles, and which arise in the ordinary course of business and secure obligations of Stratton Flats which are not yet due and not in default; (iv) encumbrances in favor of Eagle County; {00136896.DOC / 1} 7 and/or (v) encumbrances which Eagle County may, in its discretion, hereafter approve in writing. (h) Taxes. Stratton Flats has filed all federal, state, local, county and foreign tax retums required by law to be filed, and has paid all taxes, assessments and similar charges shown to be due and payable on said retums. At the date of this Agreement, no extensions of time are in effect to assessments of deficiencies for Federal income taxes of Stratton Flats. (i) Availabili of Utility Services. All utility services necessary for the Project are available at the boundaries of the Property. Such utility services include, without limitation, water supply, sanitary and storm sewers, and electric, gas and telephone lines. 12. Distributions of Sales Proceeds. As a part of this Agreement, Eagle County and Stratton Flats acknowledge and agree that the Deed of Trust shall be released contemporaneous with Stratton Flats obtaining the Loan, and that CoBiz Bank will have priority and the right to take 100% of sale revenue from the Project to facilitate the payoff of its loan to Stratton Flats. After CoBiz has been repaid in full on the $14,700,000 acquisition and development loan, Eagle County and Stratton Flats may choose to either keep the $2,800,000 vertical construction revolver with CoBiz or pay it off and deposit $3,000,000 of proceeds into a segregated "escrow" account that will act like the revolver loan until all Units are built. Upon the completion of all Units, the remaining escrow balance will become a distribution to the Project. Eagle County shall be in second priority to recover its $4,500,000.00 Development Fee plus 6% interest compounded annually derived from revenues (after the CoBiz accelerated paydown) of all product types. Stratton Flats and Meritage agree they will be in third priority as to the distribution of the sale proceeds and will eam 100% of all remaining revenues. Meritage shall defer up to $500,000.00 in its development and construction fees. This deferred amount shall accrue at a rate of 20% of the total development fee (5%) and construction fee (4%). Accruals will stop, regardless of the total amount accrued, when Stratton Flats has delivered and sold 110 units of any product type. Meritage may draw the remaining development and construction fees in full on the monthly schedule. Meritage may draw the deferred balance only after Eagle County has recovered its Development Fee plus interest as set forth above. 13. The CoBiz Loan Condition. The parties hereto state the payment of the Development Fee is conditioned upon Eagle County's satisfaction with the ultimate terms of the Loan. This determination shall be made by it in the exercise of its sole, absolute discretion. Without limiting any of the criterion with which Eagle County must be satisfied, such issues as the right of Eagle County to receive notice of defaults on the Loan, the right of Eagle County to cure defaults in the Loan, the right of Eagle County to assume the Loan, the right of Eagle County to redeem the Property in the event a foreclosure is commenced under the Loan documents. In the event that Eagle County cannot obtain from CoBiz Bank such terms it finds suitable to it by February 28, 2008, Stratton Flats, Meritage JFA Gypsum and Meritage agree to repay Eagle County's Development Fee on that date or at such earlier date as those parties close the Loan. Eagle County, however, does agree that if Stratton Flats and Meritage have been unable to close the Loan it is willing to extend the date of the repayment of the Development Fee to a date on or before June 28, 2008. In the event this fee is not repaid within this time period, the Stratton Flats and Meritage JFA Gypsum agree to pay Eagle County interest on the unpaid Development Fee in the amount of 18% until paid in full. Further, Eagle County shall have the right to commence foreclosure proceedings on the aforementioned Deed of Trust subsequent to June 28, 2008 in the event this sum has not been repaid by that date. If Stratton Flats cannot obtain a commitment from CoBiz with suitable terms to Eagle County on or before February 15, 2008, Stratton Flats, Meritage JFA Gypsum and Meritage may, at its sole, absolute discretion elect to close the CoBiz Loan on or before February 28, 2008 with the approved commitment granted to Stratton Flats on October, 07. Stratton Flats, Meritage JFA Gypsum and Meritage may exercise its right to extend the date of repayment of the Development Fee to Eagle County to June 28, 2008 at closing and Eagle County will allow the CoBiz Loan to close under the terms of the previous commitment. The parties further agree that from the date of Eagle County's payment of the Development Fee through June 28, 2008, the amount to be repaid Eagle County shall include interest at the rate of 6% per annum. The interest may be repaid in monetary form or by the transfer of the right to Eagle County Deed Restricted Units. The determination of what form the payment of interest shall be {00136896.DOC / 1} made is at the sole and absolute discretion of Eagle County. Eagle County shall also be entitled, as a condition of its continued participation in this Agreement, to inspect the Genesis Modular Plant and discuss with Genesis management all matters pertaining to the modular housing to be utilized on the project. The specifications for those modular units are attached hereto. In the event Eagle County is not satisfied, in the exercise of its sole, absolute discretion, exercised reasonably and in good faith, with the quality, deliverability and dependability of the product, it shall be entitled to withdraw from this agreement and have those monies it has paid to Stratton Flats returned to it with interest on or before June 28, 2008. The return of these funds shall be secured by the Deed of Trust referred to herein. 14. Event of Default. The occurrence of any of the following events or conditions shall constitute an "Event of Default' under this Agreement: (a) Stratton Flats' abandonment of its obligations to perform the Project and marketing and sale of the Units, and such failure or neglect either cannot be remedied or, if it can be remedied, it continues unremedied for a period of sixty (60) days after notice thereof from Eagle County to Stratton Flats. (b) Stratton Flats' failure to observe any other term or obligation of this Agreement, and such failure or neglect either cannot be remedied or, if it can be remedied, it continues unremedied for a period of thirty (30) days after notice thereof from Eagle County to Stratton Flats. (b) Any failure to pay any principal or interest under the Loan when the same shall become due and payable or the failure to pay any other sum due under the Loan, if any, or any of the Loan Documents when the same shall become due and payable (subject to applicable notice and cure periods as set forth in the Loan Documents). (d) Any warranty, representation, covenant or statement contained in this Agreement, or made or fumished to Eagle County by or on behalf of Stratton Flats that shall be or shall prove to have been false when made or fumished. (e) The filing by Stratton Flats (or against Stratton Flats to which Stratton Flats acquiesces or that is not dismissed within forty-five (45) days after the filing thereof) of any proceeding under the federal bankruptcy laws now or hereafter existing or any other similar statute now or hereafter in effect; the entry of an order for relief under such laws with respect to Stratton Flats; or the appointment of a receiver, trustee, custodian or conservator of all or any part of the assets of Stratton Flats. (f) The insolvency of Stratton Flats; or the execution by Stratton Flats of an assignment for the benefit of creditors; or the convening by Stratton Flats of a meeting of its creditors, or any class thereof, for purposes of effecting a moratorium upon or extension or composition of its debts; or the failure of Stratton Flats to pay its debts as they mature; or if Stratton Flats is generally not paying its debts as they mature. (g) The failure of Stratton Flats to close the Loan on or before June 28, 2008. 15. Remedies. Upon the occurrence of any Event of Default and at any time while such Event of Default is continuing, Eagle County may: 1) sue Stratton Flats for damages and/or specific performance; 2) Commence foreclosure proceedings as provided in paragraph 13, once the event of default remains uncured for 30 days with the exception of that default set forth in paragraph 14 (g) hereof. That default shall be cured within 10 days or foreclosure proceedings may be commenced. 3) Alternatively, upon the occurrence of an Event of Default hereunder, subject to notice and cure periods provided for herein, and to the exclusion of any other rights and remedies of Eagle County, Eagle County shall be entitled to a "Fee Recapture" from Stratton Flats based upon the following formula. The Development Fee Recapture amount shall equal the amount of Eagle County's $4,500,000.00 {00136896.DOC / 1} 9 Development Fee, accruing interest at a rate of six percent (6%) per annum, compounded daily, which shall be reduced from time to time upon the sale of a Unit by an amount which is equal to the difference between the "Free Market Sales Price" for such Unit-type as set forth in the 2008 Budget and the "Deed Restricted Sales Price" for such Unit-type as set forth in the 2008 Budget. The Development Fee Recapture amount shall be paid by Stratton Flats to Eagle County not later than forty-five (45) days from the date of Eagle County's written demand for payment of the Contract Fee Recapture amount, and Stratton Flats may elect to either pay the Development Fee Recapture amount to Eagle County in cash or other good funds, or by delivering to Eagle County marketable title to Units in the Project. In the event that Stratton Flats elects to pay the Development Fee Recapture amount to Eagle County by delivering marketable title to Units, the number of Units to be conveyed shall be equal to the amount of the Development Fee Recapture, divided by Forty Five Thousand Dollars and no/100 ($45,000.00). 16. Stratton Flats' Default Under Loan: Workout. Upon the occurrence of an event of default under the Loan and the Loan Documents, which event of default remains uncured for 10 days, Eagle County may negotiate directly with CoBiz Bank for Eagle County's acquisition of the Property and assumption and performance of the Project. In the event that Eagle County and CoBiz Bank successfully negotiate Eagle County's acquisition of the Property and assumption and pertormance of the Project, upon 30 days' written notice of such fact from Eagle County and CoBiz Bank, Stratton Flats shall convey title to the Property, together with all assignable permits and approvals. Eagle County will act in good faith and take its best efforts to release Scott B. Russell as a guarantor on the loan. 17. No Partnership or Joint Venture. It is mutually understood and agreed that nothing contained in this Agreement is intended or shall be construed in any manner or under any circumstances whatsoever as creating or establishing the relationship of co-partners, or creating or establishing the relationship of a joint venture, between Eagle County and Stratton Flats or as constituting Stratton Flats as the agent or representative of the County for any purpose or in any manner whatsoever. 18. Pa +Lment or Performance on Saturday. Sunday or Holiday. Whenever the provisions of this Agreement call for any payment or the performance of any act on or by a date that is not a Business Day, including the expiration date of any cure periods provided herein, then such payment or such performance shall be required on or by the immediately succeeding Business Day. For the purposes of this Agreement, the term °Business Dav" shall mean a day other than a Saturday, Sunday or legal holiday in the State of Colorado. 19. Entire Understandin4. This Agreement expresses the entire understanding between the County and Stratton Flats with respect to the matters set forth herein and supersedes any and all prior agreements by and between the County and Stratton Flats. Neither party shall be bound by any terms, covenants or agreements not herein contained. 20. Reasonableness. Wherever in this Agreement a party's consent is required, that consent will not be unreasonably withheld, conditioned or delayed. 21. Amendments. This Agreement is subject to amendment only by the written consent of both of the parties. Any amendment will be effective as of the date provided in the amendment. 22. Notices. Any notices or other communications required or permitted to be given hereunder shall be given in writing and delivered personally, by U.S. mail, or by electronic mail to the attention of the individuals below, or to such other addresses as any other parties designate by written notice. Notice shall be deemed given on the date of personal delivery or electronic mailing, or five (5) days from the date of mailing by U.S. mail. As to Stratton Flats and Meritage JFA Gypsum: Stratton Flats, LLC Meritage JFA Gypsum, LLC 408 Aspen Business Center, Suite 209 {00136896.DOC / 1} 10 Aspen, Colorado 81611 Email: Fax: With a copy to: Curtis B. Sanders, Esq. Krabacher & Sanders, P.C. 201 North Mill Street, Suite 201 Aspen, Colorado 81611 Email: Csanders@krabacher.com Fax: (970) 925-1181 As to Eagle County: Eagle County Eagle County Attorney 500 Broadway Box 850 Eagle, Colorado 81631 Fax: 970.328.8699 Email: bryan.treu@eaglecounty.us With a copy to Eagle County Eagle County Housing Director 500 Broadway Box 850 Eagle, Colorado 81631 Fax: 970.328.8699 Email: alex.potente@eaglecounty.us Any party may change its address for purposes hereof, by giving notice to the other parties as set forth above. 23. Governing Law: Separability of Provisions: Mutual Drafting. It is the intention of the parties that the laws of the State of Colorado as the same may be amended from time to time, will govern the validity of this Agreement, the construction of its terms, and interpretation of the rights and duties of the parties. If any provision of this Agreement is held to be invalid, the remainder of this Agreement will not be affected thereby. This Agreement is determined to be drafted by all parties hereto equally. 24. Headings and Gender. The headings in this Agreement are inserted for convenience of reference only and will not affect interpretation of this Agreement. Wherever from the context it appears appropriate, each term stated in either the singular or the plural will include the singular and the plural, and pronouns stated in either the masculine or the neuter gender will include the masculine, the feminine, and the neuter. 25. Binding Provisions. The covenants and agreements contained herein will be binding upon and inure to the benefit of the heirs, executors, administrators, successors, and permitted assigns of the respective parties hereto. 26. Dispute Resolution. All disputes arising from or related to this agreement shall be mediated by a mediator mutually selected by the parties within 60 days of a written request of any party. If mediation does not resolve the dispute, the parties waive all rights to litigate this matter in any court of competent jurisdiction and, instead, agreed to binding arbitration with a single arbitrator mutually selected by the Parties. The Parties shall follow the JAMS Streamlined Arbitration Rules 8~ Procedures for the arbitration. Each party shall bear its own costs. Notwithstanding the above and foregoing, in the event Eagle County shall determine it is entitled to foreclose the Deed of Trust entered into pursuant to this Agreement, that foreclosure process shall not be governed by the terms of this paragraph but, rather, by the terms of the Deed of Trust and the law of the State of Colorado. {00136896.DOC / 1} 11 27. Counterparts. This Agreement may be executed in several counterparts, each of which will be deemed an original but all of which will constitute one and the same instrument. 28. Confidentiality and Non-Disclosure. Except to the extent required by applicable law, rule or regulation, the parties will maintain a strict confidentiality of the terms and provisions of this Agreement, and will not disclose to any third party any of the terms or provisions hereof. written. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above EAGLE COU L By: Peter F. Runyon, Chairman a Board of County Commissioners, Eagle ,Colorado limited MERITAGE JFA GYPSUM, LLC, a Colorado Ilmited liablllty company By: Meritage Development Group, LLC, a Colorado liability company By: limited Scott B. Russell, its Manager STRATTON FLATS, LLC, a Colorado limited liability company By: Meritage Development Group, LLC, a Colorado liability company By: Scott B. Russell, its Manager {00136896.DOC / 1} 12 27. Counterparts. This Agreement may be executed in several counterparts, each of which will be deemed an original but all of which will constitute one and the same instrument. 28. Confidentiality and Non-Disclosure. Except to the extent required by applicable law, rule or regulation, the parties will maintain a strict confidentiality of the terms and provisions of this Agreement, and will not disclose to any third party any of the terms or provisions hereof. written. IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first above EAGLE COUNTY, COLORADO By: Peter F. Runyon, Chairman of the Board of County Commissioners, Eagle County, Colorado MERITAGE JFA GYPSUM, LLC, a Colorado limited liability company By: Meritage Development Group, LLC, a Colorado limited liability compan By: Sco ussell, its Manager STRATTON FLATS, LLC, a Colorado limited liability company By: Meritage Development Group, LLC, a Colorado limited liability company By: Sco ,its Manager {00136896.DOC / 1} 12 ~ N O O O O O O O O O 0 0 0 0 0 0 {q a • O~ pp pp ~p p ~p p fp~' Opep pT GO W ~ ~O ~ ~ bb pQ pp pQ R ~, ~ n R ~1 N1 N N v N V pp pp pp ~ N ~pD N 00 f~`~ h~l eh~1 1 N 10+f ~ +1 f ~+f py~ fFAa f~i ~j ~.' y ~ t0`{ M03, ~ CO O .h.. O ~ N N S M ...i ... ~' a C oO pp pp p~p O ~ V01~ ~D O 00 n vOi tN~1 .~+ ~ ~' .r ...i .r N~ C G pp Cp o~p ~ R VO1 S ~O O ~O P ~ N N ~ N N N N N N N F .y. . F ua`yia~p$a~ C~+ O~ O 00 V .00.. O O o0 OD Ca O l~ ~ 325~~~ bhp O { O+ y O 00 1N+1 T 00 !Y [~ QD O+ O~ ~•• S yD ~•~ ~ ~w3?3$~7i N h C2 of opO~ < VNj~ Vhf y~ O O;, ROl ~i •• N N tri 0~p N ~9 .M. bo N O ~D O } (,. 8,888 ~npNaoC 00 d' N N ~ ~ / ~ aT V N N .. ~ a 8 oo O V~ ~ B~~~S ~cooooa~ N C n1 v1 N ~. a0 i ~ ~n V~ a T .r ^ ~..i ~ pp ~D h ~ 883888 oC~opooo ~ O M1 O N h h 00 00 v1 v~ N .: ..: ~ ~+i t+1 t+i _._: ~ v Hf O ~p .. S83 a ~ ~ V'1 .r N 8 ~o V1 1 N t,.7 o hNNNNI~ NNMMeI eo a TT~~~~ _ _ _ ~ ~C ~yj{ _p }b~ UG o w ~p ~ ~O M N .~+ N N N .~.. .On a N b ~N.7 W !y ~ ~ OD ~ ~ pp e~ N ~ p~ ~ ~ Gi N N N ~.~ ~ ~.~ __ ° _. ~ ~ l+1 ~$ ~a_ °~o N 1+f N a___ag_Sa ~ o0 N N ~~{{. pp pp ~,eMOO~ 'Q ? ~ppp ~ppp R~ lh+f M Rf ch C N lp'~~ N phi Np ~ N t~+f M ~+f oo pp C ~ O 77t~i ~ of ~O ~r .h. .hi N N N ' ' y O 'SL¢0 C ~ 00 O ep T 00 Ve~1 t~f a0 t~1 NNN N N~ N~ , ~O ~O ~D ~C t+1 V1 e+l l~ M1 N N N N~ N 01 V~ h O ~ _ _.,~ ~O t+1 V1 V1 t~~~ N N N N N .._ _ _, _ ~~ ~~~~d NNN~a o~~~~ ~ ~~ ~~$o~~ ~s~°~NN ~$~ ~~~ Qa 1/p~ O O 0'O 00 ONO OHO 0~0 O O O O O ONO ONO ONO 0~0 OND ' ' , ' , ' LL p' ~~ n O O .+ .+ .+ N N .0+ O@ O a '~!'~2boao~ N f~ f~ $pOp~ hhh0 ....+ O a~~~~ ~~~s~ F ~~~gF~~ U >~~ G7 "~ ~~$~~~~N~s s .0. b 00 ~i a~ N of G N g p~ v j9 ~ ~L a (8~ ~ ~ d mp~ N t.~. O R 1OF3 Stratton Flats- Sandstone iac oar,. V13+3003 Dmm tsaeneay: noa. Maa11s0omla)mem nwwr-ome; aum: rb FHrI Xa. mmmm~ Sied'1 P: laraslsm A•o-rtmr JITMntena!/Lead7LxeAralumSaatfHel: aomc0ate sw~I(d lmnmmuwl I+IOm•$33tl1 SB 1762 1TSS4S (SSICa1a$C~D) )r.Yx]r SpadollxtbucHD)ra: Irs,us aea. sauca>n OaneoOoalfbm lae ar tat1. Pmmimimrype eme~ @ t~l Ib Tatal Mallatp Salsa Pace a wab Tote) IILi( klo Gales Pecs am x orr¢eC4mputloP.atoa~(('oOde~Rro• emmmrl S1tOWLOAD7a00F FICH acmDam.w~a~ealy..uasam sm aicwam(u•act 9mra ao,oFtawan sm nuar.lbrle•..d>~.rstr• 9d.a •a5au w mu mi aaaLle eem r.13 AO/Dadofoat)Yaaodaanha(ma the SS ) ZOS 0 0 •Aaabowh4ao4m00is0m04 mbamw., waraeam. sw camemaemea.rmtn a~l.dmelilmm.l . mmoedormma 9d m9enmaaar0m~h S1D X 9MC+ialaQmgrP3fermffi!0r 9mOm'd aoordwia0rn.dd~laaa W1y). S~IO1.E6 57D X SDYm6ddtntmJ 9ferfim 9ta3md SID NHq )8p1 Low-EWdna 5+>mW. ••aaofmmnmeEadDOO(aa3tlo8elotl x ad3eaAmmwlmo•.~namodr )a ess aao B 100 0 0 ,gmomero0fmmda omm.ewalmappom/ Aa0trm1 T4 A'fa0ova ltr 94n@14m1 3o nm 0 b '• IGE AND WA7ERS~LD ' (Pi3alsFa¢alvdwaethasvm0 ri0 „0. .. ~ '' x rII®smaDmeauatmolayaaal In tet 785 0 0 alawnswrcaan 0 ~ END GAOl.ES (31]036gMmad103P)aNed3 a90 O' - 0 SID X IYO.tle<alr 9mtlua rmm-nmaeeetant>;,e+,p.3mma !4 ach ~ 0: ::''=0 8m x 1idaAltleAtatAtllLPm.7m784er 9umra sID x lra.atwe••,vasFlomums9ey 9mrma FPA79RE GAFILIS•81.YGED HOOT a(D X aawomrea:~.wmm•,IPn-r.) smarm F&OY, TDOOR .so NadaA: DaablaQehmWahAgmDA ]~ 395 0 sm auua~aaam+n. Rawao..m.gtml a1n 9aaoAFmr O+lfsaaa0alro 9aaldaaantama7 I70 IIanawC Dmb7a0rIIleai09aya At 3P3 0 0 Ml SdoaaQ37J'7 WitldsaQffi(aP') 370/7,3 emeNy aPAYDDODl6aamlaamra<aimahmml SID X U3PmN(ImmOafPmc4(Owole~ l60 IID 180 0 0 r3a X SWbDoor ADhOnd6o1(Q4W) b7D A.s10mIGbf 4mmDSLAR+sa1 TaSmg7er)NmmTO9dFl0er 790 taelmlasmFmun ~ 0 1.6 0 •m % tlro-9ogCtlllap J6a9 SID Plmb FcO(NoFHemofarIlan~easm 73w •(mdmwamuaraoma3]wu- 0 0 mpmdloymroe(~h.)memmaaaode O O 507 S imtlarOPlamp.iSm Slmesed 1lb3 FlC 0 0 E:ma4tSRaapt~7o as aath 0 O sm R 3l6EVUlw AVlett7&l9 (mdrtlm Sa) SlD Y Frml FrmFrm~el-19d 9mSVd >ro X 7plmvmtW lm Sm X OOmOae:a.ltFF)am 73 emh ri 0 0 BuNamraFaewNajamm(m,(}rb F17EPWD 9CON4•lla9a\YBYIPACa nrttT®>Wtanm o•daao.. Str att on Flats-Sandstone °tl°'~ 9I,a•1JVm0ooralml:.Dam !m 0 1.5 0 97D AaPmlYfaolmA A'ieb,@BmOFaFSmiH 9meW SID X 3PmrlPnhmaaWanM7lWmad 9maW -raallbam FaaiaalFL9maQf Silo ay 6fgaamt..arnam lfmme OmvgAlFrmlrmtn roam a.-mWnlmPm3~mm.7tra~ 300 0 1.6 a ESmtm RemAeaUdY-POrtbaSO&im \7C P&-NMemP(tlay00mt~90daag l50 aeb a 0 Lk.aiaamdsdWeO bmmt Kma3rPme Plg 31/J'DaarTi(4 a» 4ML 0 0 Aad Dmnm aecanm 4thl•-mbmsatm a nm a a Iva•aua 11a3masltlrm37onaaa °O"''' naaoce llgaACmso0 Nm0 xamrrAmmPaa x)anam rnm. ~ a o 3.y~ I(m•Bm.HaamlaSN(m:VOnnef/ Prmr SID S FamLrtlmSeaP 9mdud Sm X 91gmiQwelDesnlnrlmlPrrPMI 91mam SID S t-1lY4117,s•I V.Shmla BlmJaM Sem4m MaBaCa+elOs[dm N/cteaoomim0 l7J 0 0 67D S RamrDma 11 fA Sw3n4 OmW)ODIm•bram/~7.sSfmr SID S 3bt•Oe Daalbq Sbemm AaalaE4 WJiEmsatOgmrOdY Enmml9YnmllPrtpfYam floor f], ( 525 0 OmleNmvnm6aLr-bma4da l00 0 D IkaGdWkhoom DaoiN0u0s1)D.01nmYam~aaRar OIOY SpiOAmeACUtmafBm.+nnMJl 130 a O Asmlad~ aaFB6mraumQpP/0.aOMi • gam. Fa]ap 13.8aQom aD [tamQeW'~ X2 aw x QmpNtFmWMtaa 9Saaud 7aaamr)IaII ao S 8rm6oaei6oal Plod Stmemtl 1m6aAOemOpienlLDDm/F8 703 0 1.5 0 v s m e slfl x 91na9anaaa-a3tmar9aaoxl 9ma,ro e1n am X x rm 8amet hnytmr>ap9.am am + 9emeam 9drr69daeaoL-AtelCoaaH 60 . b a 0 gamamA lf)0 1 1570 - 0 Syai(r3oruieo(ak 0 0 Pamp[mYLP67dm,,Ctlbmo'INm WaAWlpimmaAeaam(3(oe38mmq 173M1Vd1 (4•R a0eraemmm, s'shta'$71mQOU, loedan a•1(oamea•Smm(~Oomb F4h acYa g16able4H®ratabe (Sw Pa b) 1P1 0 1S 0 Smiquigm a+bklo3r,Gmplmtlap u~aoaa ElamlM Sv~pNAb gNant O•qM (,1~ PraPr -.at.rmwnaammm•a.or..~a 7s 0 1.6 0 9)1oam.gYael.tlF(WlOaltlaay; PtlOOFaA'11,Ima 25NCSmI50ovPF) IS0 0 t.6 0 (1>)Ilmaom DsmdsOoNdrAl Fmm Stn X npo~rwwmmm.w.~m Stmdr d 1Y3limamdAmm.Pmm.raoflimo atD x aae-SmNaAaMton Stmar a IRa3mSmayA7alSOadaa9~oa aapellDbq(Y+IDSammbOuOar 3 IerV 0 7.5 0 ~,gq~pr P,imd awo uaumF-otim At txm r Ivru 0 1.6 0 n.wa:e ]ri) 0 0 Pwmmaam a! ems 0 1.5 0 Cemp(m1aL-S~,QdmmmTdm Sm X ra.m.mamucm {u oOrarmW Slmad (swmaeonolaa•SUw®A7nawm. aewdCm(t¢tas-(RurOeNiml 70 rrh 0 7.6 0 a•Httlet@a•StGagaom,bsawea Pmnr4CmliFmAt319IDaEeomaOam 70 orb 0 1.6 0 F6~9By{~Fm10F7mS~wmrgMal P4mlrefEyAilDOSe (oewaaiMmf 7! arA O 1.6 0 OSb0o lu8my,('amddeLP901os® Itemmcatfllm 7a• a0 a 7.3 D Oamaacorllan aa• Bf 0 7.6 0 Boxary@FrmaOmleaf3a05mry, Feos 33 0 1.6 0 (7)Samma~7o vaaumFtamOd%SY EmCa9ia31Jya rmamm ss a 1.6 0 DimanlaamaPafmam4(Iiaao [mro~eeDam a0 () t.6 0 IuA7a06rarAdAOMblecsl9q.9(m GTd PhOae,m3: luQom/ 7s a 7.3 0 dSf ltostmk 3daav 60 0 7.8 0 Jmnam am PaaOee aoaoma,~.unnam.lna w a 7.5 0 eabommsm.'mnFmm. mra es fl 7.5 0 q..,amc 1430 0 a w.uhdTwP,amc t3 a 1.5 0 ~yLy~Q~p~ uas3-mars+eaa(srAPRlatao !7 O 1.5 O (a'Da•.ar@Baamsa•sldm®Atdow. FamlmaiagwOhdQdel ab a 7.5 0 a'I4aaeraa'9!m/ADvmb 3hgbmd 0 0 C3EOD8a/.'jOmlaryAetkemaaiu. SID X Amw.m.woma Vmbyat® SLtlma &aMPam19do9faroewTO 80Va1Cea0 smh~eemeroaa0my&v1EmTo ®AoelDf7a0Smry.(:OPhmAdaabio GamemQlsi¢-amrL@ W Fmm .ratmF$ 0ama+Aa.p)BaeueOlAebh O[tbo Stmv ~ gFfaea:Tdm JSd,4oaaAAro PNmea X r-mPlP,tm.a••ro.sraavm 31me.e 20F3 SvffitGfOellb'-9F4a 9 pwC O 0 t~da,wmlwa vaa.aerepmv It9S 0 1.5 0 8D3 7laldm4l N.foRa..f•war Am bSm4M 91D 1Pa1~rpPnHm 9~ad vas a Pmp¢aJ O,n 197 0 13 0 •a6aiwlubsuvsvovor xls e<! 0 1b 0 sID x 92ttXgyF9ldmnfFme.ce 9mma SOCdNIm6mYa ie°Ib$0°^'~ ~ 0 7b 0 Y'Wely®ovS.aFnmdBaL.Sa.t 9% 0 t3 0 (J6effiamseay iaen.s awd-9veam.rsuvresteoevd F IarWem(Qrtlras) V9sFn~moe.r0at®f®~ JtBeRea a r~ a QNJpu 91D x D.vlNVmtlf61sg3LWr8s6 srmlw 7~wFVe,te.~ Pr~emaeDmr653 add0adrovatg0 wmoesado I4f D 13 0 8l/ntm8t4'SSe~Or!iwlSym (16•Tm9Ymb®dlmro6N.J0'fa»Ym ryry;~QM ldls Lee.aac D.w Pffibin,mfLdRomn S1D x C7psdtd 0a@IMCY~06. 5toe.ra To B1J1Py.d/ xAalMw&kaclW SW A Pemltin9ffi tnBBFmeeu 8tu0ad OeSwayALae„dCaueoer. Aa 67D 3 Sml•Se.W Fmem SSew /IW.~.ra 6tmesa CoM +rosWiQ8. S1eDAedJnauti Ga3ir SID aarmy. mmou FAD: 3fe D,1 b 9nn6s0 A.e~.new+e.rwmaro,sn•,ei c~acm.c ~sa7e 0 0 ALenadGmneev.. Y~07{.}FLgig 7tm )tdl Sid 6f tlc3 O 0 Pmpavm.Ob lsetmomIG060mde6 t80 0 1.3 0 sm x vaayP}S.,asp,w Jstr IWI 9ed 9ad.,d 8ID x PawssYJvs SI.e6sM L'vD+d.A77o~shl'laetomfaPaW 190 mrL 0 0 Sm x aeom,slre7.a, snodw sm x uwa lla6tlw8.Ih.PSL anL Slmdsrd SID x 006 A7.@as.lee Stad.N SID X amtmDUan Ffmoeuaaeses 94NVe ~oASVmamFerhC1I00Amvreroodl .7 .T;y.~i,,1?6p1 0 tS 0 sID x avee.raw..YS6ry Snadod SID ar7l.savemlJ¢OrlaltN43vam SmILN 3/hasWOle~emoeeiriml 70 0 tb 0 sm x cdio,+avaslaamt+e7+.fua„>ti summa ~~ ~+ sm x Dtn.onm.~a..m smsma SID x fm019 Jt3a+rep7;sas 197 stf 1 829 0 0 adawxdrnroro4R~.rsaat. uo O is o sm fe~IatiFinadnaosx7slu sfmaaa zlaslmat~sua w.loas o 13 0 SIfa~Qama+aaa.ae,~Pm., sm am:.. Ddmau DvlmmFtw sm we.aa.anne.aAay.Iw.strJ,o, saraaa, oR,vmsmmwe4 Jm 0 0 oo.a7lwa~ srD >xdaaem sm sm t:vs<.6e resaaePaeloacDSn xsd 0 tb 0 cv~,de~velmeutQa.e,.,,ea Iso 0 1.4 a CO&s7ero3dWvC,LNm bz7 o t3 0 S1b x sndunmlme~Ram gmyM t1'F.swIW610sms30,{taln 393 0 13 D SID x asOspmpAw tmtlled 9vaase JOwe~arSStu Pm6m s9f 0 1S 0 PnpFfp7ggvALoa Sam Ito 0 73 0 S4BO ahmii$t.-auvim 77 0 0 1 5 0 stD x temalwPiep77eafn94II 5wdaa aplawJtnOlerreeDtmx~ra+o . am x tal.emoQlm anasan9u sme..e Cadnunaa..Appnz,7makl dTm Go R7aL WteemAPFm~u PI41W.PbR 2143 0 1.5 O Fiwetia. m aadv Fo, swa a 9CSemdavpQevS~e vom Oos. Dselwbve,l.IVpllmeP4sl (8ns1Q Jf10 0 1.4 0 weed SCOs s SCSwooDlroDF7ca Sny. Qw3hNtS+G4faDil Noa. o, ac6lq~vAen mrne+HAVyo.o Plelryaerq J7S! O 1.5 O Colmsrm traetem. Pmryy 0oav 36e16eq e,avov~ar er I]peioSaoeAd7(ol.bm) 5vrsmarype7maooou.eadhwimoau mfor.ylem mabsa,. SiJ) S35ekwtIImlvsemlDm FmM Sbmmd G11,bimad®i.ntfomb.olo ~t7~e[ Sm w5imS7s5v19a7dmF®SivpJolsxrfmrnm . ~leFSa Qbima Ia~'lOYat 730 sm oao.al.47.»w7eaeeA~ srma..d awes SiD x Cemse Dlea,eteplsa Rsdvd C.IDeee cm~.7n..x:~ ed7a tbf 0 1.9 0 fdner ~e4ttwa~lada~ us 0 t.4 0 ~ epD.aav.vpee-Immmwmamo7sa 7w 0 t.6 O Ctilttp 7ie6yn I>ve7+,d sID x m.fao..ro mw sraaa a+o+++nr.v bnudn~nwJHa ]ndSroryJ sm x tiF.aram,t.~r I~eenDO y>m„d Slt7 x 'Lpa7WatdRido Rnevma5m smaaa ASCmP,n/aCW p7'RebvdPad SID x Bvliner!mm. DO.6.UvdgBhde. Sm.me 10aESIemEla: 6lmNN Sm ~aae ~8adon Fmsrm 4aiaul CamIIJ++egJ/es. 1606 0 13 0 aaPdmaam~mwaodSW 2s s..s 'a 0 .~:0 caagwoz ns 0 7 0 0 . aaadkSdis ID am ~'. D '~ ~0 sm JJnlaMac 7®tr Cava SID AWa O PIm 51h(Awl utm P7p 0677 PL007LL~TI M.'6117ID O.s ~TPAaB Stra tton n' at$- Sandstone ol6a F, I / +m xnaaa.a77.m umJeapn em Caraae Comann3te Pkv 0 0 t'°va7maas.Q Oae >' 0 13 0 m Yti7.maPmq sm Ftm-RafedOa0r, F6e Rated OaHOafe tYbll, GFIOaIkt 0 0 I~mfewev6FmF 19f 0 0 VFEite Kitehea Paekaae 0 0 ca~elwFmysa7a7• I6 f.4a o Dal9cortsw4eyslmn~a7~uora~na~mc~r o 0 Cva.a7uaFlmrtefdrma to P00 0 0 Self-~emn36aa~Hcade Sroooth-TuPAagge D 0 QOM PotmvbbcDlsAaasher.It9emssx GvaRmga 0 0 I.awmwemtmo. eaf 0 0 0 0 SOON Stainless Steet Packa4:s ql 0 0 21.9Co. Ft SidebySld613cttlgaator 0 0 oommtbam Fm 0>aorFlet>de561t-CemingRmge 0 0 PottaubberDlSsvasEer 0 0 s7m+e'+aeaona.TOaomromtFlme ua6 0 13 OD13wwavaO/roa Aa1 sit 0 0 60tl Dumm56tlnw 1300 1 1400 0 0 tt i„i... c...l Pee .e. •- - M 0 0 __ 229 CLFI.7:MnRoS7deRe5io~m~. n n sl7f a DlslmmAef & Ga7tage Ditpo63l I> taede wau o,~ aetarmD ate [oodAhmc Gas OrFlWlie CmO~p(67ay0mh Soae !n1lem do9f)aod 50P3 QRAFT9A.07 O 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 a o 0 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 47 48 49 50 51 52 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 68 69 70 71 72 73 The printed portions of this form, except differenfiated additions, have been approved by the Colorado Real Estate Commission. (T'D72-10-06) (Mandatory 1-07) IF THIS FORM IS USED IN A CONSUMER CREDTT TRANSACTION, CONSULT LEGAL COUNSEL. THIS IS A LEGAL INSTRUMENT. IF NOT UNDERSTOOD, LEGAL, TAX OR OTHER COUNSEL SHOULD BE CONSULTED BEFORE SIGNING. DEED OF TRUST (Due on Transfer -Strict) THIS DEED OF TRUST is made this 15th day of January, 2008 between Meritage JFA Gypsum. LLC (Grantor), whose address is 408 Aspen Business Center, Suite 209. Ashen, Colorado 81611: and the Public Trustee of the County in which the Property (see paragraph 1) is situated (Trustee); for the benefit of Eag a County, Colorado (Secured Party), whose address is P.O. Box 850, 500 Broadway, Eagle, CO 81631. Grantor and Secured Party covenant and agree as follows: 1. Property in Trust. Grantor, in consideration of the indebtedness herein recited and the trust herein created, hereby grants and conveys to Trustee in trust, with power of sale, the following legally described property located in the County of Eagle, State of Colorado: Parcel A, Amended Lehmann Parcels, according to the "Amended Exemption Plat. Lehmann Parcels" filed June 30.2006 at Reception No. 200617646, County of Eagle, State of Colorado. known as No. N/A .(Property Address), Street Address, City, State, Zip together with all its appurtenances (Property). 2. Obligations Secured. This Deed of Tntst is given to secure to Secured Party: A. All of Grantor's obligations under that certain "Aexeement to Provide Deed Restricted Housin " the ("Agxeement" among Grantor. Stratton Flats, LLC and Secured Party dated January 15, 2008. B. the payment of all other sums, with interest thereon at 18% per annum, disbursed by Secured Party in accordance with this Deed of Trust to protect the security of this Deed of Trust; and C. the performance of the covenants and agreements of Grantor herein contained. 3. Title. Grantor covenants that Grantor owns and has the right to grant and convey the Property, and warrants title to the same, subject to general real estate taxes for the current year, easements of record or in existence, and recorded declarations, restrictions, reservations and covenants, if any, as of this date and except that certain Deed of Trust dated July 30. 2007 from Meritaee JFA G~sum,_LLC for the benefit_of United Western Bank recorded Aueust 3. 2007 as Reception No. 200720625. 4. Payment of Principal and Interest. Grantor shall promptly pay when due the principal of and interest on the indebtedness evidenced by the Agreement, and late charges as provided in the Agreement and shall perform all of Grantor's other covenants contained in the Agreement. 5. Application of Payments. All payments received by Secured Party under the terms hereof shall be applied by Secured Party #hen to amounts disbursed by Secured Party pursuant to paragraph 9 (Protection of Secured Party's Security), and the balance in accordance with the terms and conditions of the Agreement. 6. Prior Mortgages and Deeds of Trust; Charges; Liens. Grantor shall perform all of Grantor's obligations under any prior deed of trust, accompanying security agreement, loan agreement related to that deed of trust and security agreement and any other prior liens. Grantor shall pay all taxes, assessments and other charges, fines and impositions attnbutable to the Property which may have or attain a priority over this Deed of Trust, and leasehold payments or ground ren , ' , ' , . by Grantor making payment when due, directly to the payee thereof. Despite the foregoing, Grantor shall not be required to make payments otherwise required by this paragraph if Grantor, after notice to Secured Party, shall in good faith contest such obligation by, or defend enforcement of such obligation in, legal proceedings which operate to prevent the enforcement of the obligation or forfeiture of the Property or any part thereof, only upon Grantor making all such contested payments and other payments as ordered by the court to the registry of the court in which such proceedings are filed. 7. Property Insurance. Grantor shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire or hazards included within the term "extended coverage" in an amount at least equal to the lesser of (a) the insurable value of the Property or (b) an amount sufficient to pay the sums secured by this Deed of Trust as well as any prior encumbrances on the Property. All of the foregoing shall be known as "Property Insurance: ' The insurance carrier providing the insurance shall be qualified to write Property Insurance in Colorado and shall be chosen by Grantor subject to Secured Party's right to reject the chosen carrier for reasonable cause. All insurance policies and renewals thereof shall include a standard mortgage clause in favor of Secured Party, and shall provide that the insurance carrier shall notify Secured Party at least ten (10) days before cancellation, termination or any material {0013fi884.DOC / 1}No. TD72-10~. DEED OF TRUST (Due on Transfer -Strict) Page 1 of 5 Initial change of coverage. Insurance policies shall be furnished to Secured Party at or before closing. Secured Party shall have the right to hold the policies and renewals thereof. In the event of loss, Grantor shall give prompt notice to the insurance carrier and Secured Party. Secured Party may make proof of loss if not made promptly by Grantor. Insurance proceeds shall be applied to restoration or repair of the Property damaged, provided such restoration or repair is economically feasible and the security of this Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this Deed of Trust would be impaired, the insurance proceeds shall be applied to the sums secured by this Deed of Trust, with the excess, if any, paid to Grantor. If the Property is abandoned by Grantor, or if Grantor fails to respond to Secured Party within 30 days from the date notice is given in accordance with pazagraph 16 (Notice) by Secured Party to Grantor that the insurance carver offers to settle a claim for insurance benefits, Secured Party is authorized to collect and apply the insurance proceeds, at Secured Party's option, either to restoration or repair of the Property or to the sums secured by this Deed of Trust. Any such application of proceeds to principal shall not extend or postpone the due date of the installments referred to in paragraphs 4 (Payment of Principal and Interest) or change the amount of such installments. Notwithstanding anything herein to the contrary, if under paragraph 18 (Acceleration; Foreclosure; Other Remedies) the Property is acquired by Secured Party, all right, title and interest of Grantor in and to any insurance policies and in and to the proceeds thereof resulting from damage to the Property prior to the sale or acquisition shall pass to Secured Party to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition. All of the rights of Grantor and Secured Pazty hereunder with respect to insurance carriers, insurance policies and insurance proceeds are subject to the rights of any holder of a prior deed of trust with respect to said insurance carriers, policies and proceeds. 8. Preservation and Maintenance of Property. Grantor shall keep the Property in good repair and shall not commit waste or permit impairment or deterioration of the Property and shall comply with the provisions of any lease if this Deed of Trust is on a leasehold. Grantor shall perform all of Grantor's obligations under any declarations, covenants, by-laws, rules, or other documents governing the use, ownership or occupancy of the Property. 9. Protection of Secured Party's Security. Except when Grantor has exercised Grantor's rights under paragraph 6 above, if Grantor fails to perform the covenants and agreements contained in this Deed of Trust, or if a default occurs in a prior lien, or if any action or proceeding is commenced which materially affects Secured Party's interest in the Property, then Secured Party, at Secured Party's option, with notice to Grantor if required by law, may make such appearances, disburse such sums and take such action as is necessazy to protect Secured Party's interest, including, but not limited to: (a) any general or special taxes or ditch or water assessments levied or accruing against the Property; (b) the premiums on any insurance necessary to protect any improvements comprising a part of the ~~~ (c) sums due on any prior lien or encumbrance on the Property; (d) if the Property is a leasehold or is subject to a lease, all sums due under such lease; (e) the reaannable costs and expenses of defending, protecting, and maintaining the Property and Secured Party's interest in the Property, including repair and maintenance costs and expenses, costs and expenses of protecting and securing the Property, receiver's fees and expenses, inspection fees, appraisal fees, court costs, atxorney fees and costs, and fees and costs of an atxorney in the employment of Secured Party or holder of the certificate of purchase; (f) all other costs and expenses allowable by the evidence of debt or this Deed of Trust; and (g) such other costs and expenses which may be authorized by a court of competent jurisdiction. Grantor hereby assigns to Secured Party any right Grantor may have by reason of any prior encumbrance on the Property or by law or otherwise to cure any default under said prior encumbrance. Any amounts disbursed by Secured Party pursuant to this paragraph 9, with interest thereon, shall become additional indebtedness of Grantor secured by this Deed of Trust. Such amounts shall be payable upon notice from Secured Party to Grantor requesting payment thereof'; and Secured Party may bring suit to collect any amounts so disbursed plus interest specified in pazagraph 2B (Obligations Secured). Nothing contained in this paragraph 9 shall require Secured Party to incur any expense or take any action hereunder. 10. Inspection. Secured Party may make or cause to be made reasonable entries upon and inspection of the Property, provided that Secured Party shall give Grantor notice prior to any such inspection specifying reasonable cause therefore related to Secured Party's interest in the Property. I1. Condemnation. The proceeds of any awazd or claim for damages, direct or consequential, in connection with any condemnation or other taking of the Property, or pazt thereof, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid to Secured Party as herein provided. However, all of the rights of Grantor and Secured Party hereunder with respect to such proceeds aze subject to the rights of any holder of a prior deed of trust. In the event of a total taking of the Property, the proceeds shall be applied to the sums secured by this Deed of Trust, with the excess, if any, paid to Grantor. In the event of a paztial taking of the Property, the proceeds remaining after taking out any part of the awazd due any prior lien holder (net awazd) shall be divided between Secured Party and Grantor, in the same ratio as the amount of the sums secured by this Deed of Trust immediately prior to the date of taking bears to Grantor's equity in the Property immediately prior to the date of taking. Grantor's equity in the Property means the fair mazket value of the Property less the amount of sums secured by both this Deed of Trust and all prior liens (except taxes) that aze to receive any of the awazd, all at the value immediately prior to the date of taking. If the Property is abandoned by Grantor or if, after notice by Secured Party to Grantor that the condemnor offers to make an awazd or settle a claim for damages, Grantor fails to respond to Secured Party within 30 days after the date such notice is given, Secured Party is authorized to collect and apply the proceeds, at Secured Party's option, either to restoration or repair of the Property or to the sums secured by this Deed of Trust. {00136884.DOC / 1}No. TD72-10-06. DEED OF TRUST (Due ou Transfer -Strict) Page 2 of 5 Initial l47 Any such application of proceeds to principal shall not extend or postpone the due date of the installments l48 referred to in paragraphs 4 (Payment of Principal and Interest) nor 149 change the amount of such installments. 150 151 12. Grantor Not Released. Extension of the time for payment or modification of amortization of the sums 152 secured by this Deed of Trust granted by Secured Party to any successor in interest of Grantor shall not operate to 153 release, in any manner, the liability of the original Grantor, nor Grantor's successors in interest, from the original terms 154 of this Deed of Trust. Secured Party shall not be required to commence proceedings against such successor or refuse to 155 extend time for payment or otherwise modify amortisation of the sums secured by this Deed of Trust by reason of any 156 demand made by the original Grantor nor Grantor's successors in interest. 157 158 13. Forbearance by Secured Party Not a Waiver. Any forbearance by Secured Party in exercising any right 159 or remedy hereunder, or otherwise afforded by law, shall not be a waiver or preclude the exercise of any such right or 160 remedy. 161 162 14. Remedies Cumulative. Each remedy provided in the Agreement and this Deed of Trust is distinct from and 163 cumulative to all other rights or remedies under the Agreement and this Deed of Trust or afforded by law or equity, and 164 may be exercised concurrently, independently or successively. 165 166 15. Successors and A~cigrts Bound; Joint and Several Liability; Captions. The covenants and agreements 167 herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of Secured 168 Party and Grantor, subject to the provisions of paragraph 24 (Transfer of the Property; Assumption). All covenants and 169 agreements of Grantor shall be joint and several. The captions and headings of the paragraphs in this Deed of Trust are 170 for convenience only and are not to be used to interpret or define the provisions hereof. 171 172 16. Notice. Except for any notice required by law to be given in another manner, (a) any notice to Grantor 173 provided for in this Deed of Trust shall be in writing and shall be given and be effective upon (1) delivery to Grantor or 174 (2) mailing such notice by first class U.S. mail, addressed to Grantor at Grantor's address stated herein or at such other 175 address as Grantor may designate by nonce to Secured Party as provided herein, and (b) any notice to Secured Party 176 shall be in writing and shall be given and be effective upon (1) delivery to Secured Party or (2) mailing such notice by 177 first class U.S. meal, to Secured Party's address stated herein or to such other address as Secured Party may designate by 178 notice to Grantor as provided herein. Any notice provided for in this Deed of Trust shall be deemed to have been given 179 to Grantor or Secured Party when given in any manner designated herein. 180 181 17. Governing Law; Severability. The Agreement and this Deed of Trust shall be governed by the law of 182 Colorado. In the event that any provision or clause of this Deed of Trust or the Agreement conflicts with the law, such 183 conflict shall not affect other provisions of this Deed of Trust or the Agreement which can be given effect without the 184 conflicting provision, and to this end the provisions of the Deed of Trust and Note are declared to be severable. 185 186 18. Acceleration; Foret;losure; Other Remedies. Except as provided in paragraph 24 (Transfer of the 187 Property; Assumption), upon Grantor's breach of any covenanut or agreement of Grantor in this Deed of Trust, or upon 188 any default in a prior lien upon the Property, (unless Grantor has exercised Grantor's rights under paragraph 6 above), at 189 Secured Party's option, all of the sums secured by this Deed of Trust shall be immediately due and payable 190 (Acceleration). To exercise this option, Secured Party may invoke the power of sale and any other remedies permitted by 191 law. Secured Party shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies 192 provided in this Deed of Trust, including, but not limited to, reasonable attorney's fees. 193 194 [f Secured Party invokes the power of sale, Secured Party shall give written notice to Trustee of such election. 195 Trustee shall give such notice to Grantor of Grantor's rights as is provided by law. Trustee shall record a copy of such 196 notice as required by law. Trustee shall advertise the time and place of the sale of the Property, for not less than four 197 weeks in a newspaper of general circulation in each county in which the Property is situated, and sha11 mall copies of 198 such notice of sale to Grantor and other persons as prescn'bed by law. After the lapse of such time as may be required by 199 law, Trustee, without demand on Grantor, shall sell the Property at public auction to the highest bidder for cash at the 200 time and place (which may be on the Property or any part thereof as permitted by law) in one or more parcels as Trustee 201 may think best and in such order as Trustee may determine. Secured Party or Secured Party's designee may purchase the 202 Property at any sale. It shall not be obligatory upon the purchaser at any such sale to see to the application of the 203 purchase money. 204 Trustee shall apply the proceeds of the sale in the following order: (a) to all reasonable costs and expenses of the 205 sale, including, but not limited to, reasonable Trustee's and attorney's fees and costs of title evidence; (b) to all sums 206 secured by this Deed of Trust; and (c) the excess, if any, to the person or persons legally entitled thereto. 207 208 19. Grantor's Right to Cure Default. Whenever foreclosure is commenced for nonpayment of any sums due 209 hereunder, the owners of the Property or parties liable hereon shall be entitled to cure said defaults by paying all 210 delinquent principal and interest payments due as of the date of cure, costs, expenses, late charges, attorney's fees and 211 other fees all in the manner provided by law. Upon such payment, this Deed of Trust and the obligations secured hereby 212 shall remain in full force and effect as though no Acceleration had occurred, and the foreclosure proceedings shall be 213 discontinued. 214 215 20. Assignment of Rents; Appointment of Receiver; Secured Party in Possession. As additional security 216 hereunder, Grantor hereby assigns to Secured Party the rents of the Property; however, Grantor shall, prior to 217 Acceleration under paragraph 18 (Acceleration; Foreclosure; Other Remedies) or abandonment of the Property, have the 218 right to collect and retain such rents as they become due and payable. 219 {00136884.DOC / 1}No. TD72-10.06. DEED OF TRUST (Due on Transfer -Strict) Page 3 of 5 ~ Initial 220 Secured Party or the holder of the Trustee's certificate of purchase shall be entitled to a receiver for the Property 221 after Acceleration under paragraph 18 (Acceleration; Foreclosure; Other Remedies), and shall also be so entitled during 222 the time covered by foreclosure proceedings and the period of redemption, if any; and shall be entitled thereto as a matter 223 of right without regazd to the solvency or insolvency of Grantor or of the then owner of the Property, and without regazd 224 to the value thereof. Such receiver may be appointed by any Court of competent jurisdiction upon ex pane application 225 and without notice; notice being hereby expressly waived. 226 Upon Acceleration under paragraph 18 (Acceleration; Foreclosure; Other Remedies) or abandonment of the 227 Property, Secured Party, in person, by agent or by judicially-appointed receiver, shall be entitled to enter upon, take 228 possession of and manage the Property and to collect the rents of the Property including those past due. All rents 229 collected by Secured Party or the receiver shall be applied, first to payment of the costs of preservation and management 230 of the Property, second to payments due upon prior liens, and then to the sums secured by this Deed of Tn~st. Secured 231 Party and the receiver shall be liable to account only for those rents actually received. 232 233 21. Release. Except as expressly provided for in the Agreement regarding Secured Party's obligation to provide 234 partial releases of the encumbrance of this Deed of Trust, upon payment of all sums secured by this Deed of Trust, 235 Secured Party shall cause Trustee to release this Deed of Trust and shall produce for Tntstee the Agreement. Grantor 236 shall pay all costs of recordation and shall pay the statutory Trustee's fees. If Secured Party shall not produce the 237 Agreement as aforesaid, then Secured Party, upon notice in accordance with paragraph 16 (Notice) from Grantor to 238 Secured Party, shall obtain, at Secured Party's expense, and file any lost instrument bond required by Trustee or pay the 239 cost thereof to effect the release of this Deed of Trust. 240 241 22. Waiver of Exemptions. Grantor hereby waives all right of homestead and any other exemption in the 242 Property under state or federal law presently existing or hereafter enacted. 243 244 23. , 245 , 246 247 ~Prein re€erred~s;.TFm} "` equal~9 ef~ 248 yearly~ed assessmeuts-~~~13is1~ ~y-a~in~rierit}~ever~isrlaeecl-a€'fres~les of 249 , 250 251 252 253 254 255 , 256 . 257 , 258 259 ~ 260 , 261 , 262 263 , 264 , 265 266 267 ; 268 , 269 , 270 271 272 24. Transfer of the Property; Assumption. The following events shall be referred to herein as a "Transfer": (i} 273 except as set forth in the Agreement. a transfer or conveyance of title (or any portion thereof legal or equitable) of the 274 Properly (or any part thereof or interest therein), (ii) except as set forth in the Agreement. the execution of a contract or 275 agreement creating a right to title (or any portion thereof, legal or equitable) in the Property (or any part thercef or 276 interest therein), (iii) or except as set forth in the Agreement, any agreement granting a possessory right in the Property 277 (or any portion thereof), in excess of 3 years, (iv) except as set forth in the Agreement. a sale or transfer of, or the 278 execution of a contract or agreement creating a right to acquire or receive, more than fifty percent (50%) of the 279 controlling interest or more than fifty percent (50%) of the beneficial interest in Grantor, (v) the reorganisation, 280 liquidation or dissolution of Grantor. Not to be included as a Transfer are (i) the creation of a lien or encumbrance 281 subordinate to this Deed of Trust, (ii) the creation of a purchase money security interest for household appliances, (iii) a 282 transfer by devise, descent or by operation of the law upon the death of a joint tenant, or (iv) Grantor's grant of a Deed of 283 a security interest in the Property securing a loan in an amount not to exceed Fourteen Million Dollars and no/100 284 ($14,700,(}00.00) as provided for in the Agreement: or (v) Grantor's transfer of the Pro~rty to Stratton Flats. LLC ,a 285 Colorado limited liability company. as provided for in the A ergs ement. At the election of Secured Party, in the event of 286 each and every Transfer. 287 (a) All sums secured by this Deed of Trust shall become immediately due and payable (Acceleration). 288 (b) If a Transfer occurs and should Secured Party not exercise Secured Party's option pursuant to this 289 paragraph 24 to Accelerate, Transferee shall be deemed to have assumed all of the obligations of 290 Grantor under this Deed of Trust including all sums secured hereby whether or not the instrument 291 evidencing such conveyance, contract or grant expressly so provides. This covenant shall tun with the 292 Properly and remain in full force and effect until said sums aze paid in full. Secured Party may without 293 notice to Grantor deal with Transferee in the same manner as with Grantor with reference to said sums {00136884.DOC / 1}No. TD72-10-06. DEED OF TRUST (Due on Transfer - Strict) Pegs 4 of 5 ~~ Initial including the payment or credit to Transferee of undisbursed reserve Funds on payment in full of said sums, without in any way altering or discharging Grantor's liability hereunder for the obligations hereby secured. (c) Should Secured Party not elect to Accelerate upon the occurrence of such Transfer then, subject to (b) above, the mere fact of a lapse of time or the acceptance of payment subsequent to any of such events, whether or not Secured Party had actual or constructive notice of such Transfer, shall not be deemed a waiver of Secured Party's right to make such election nor shall Secured Party be estoppel therefrom by virtue thereof. T'he issuance on behalf of Secured Party of a routine statement showing the status of the loan, whether or not Secured Party had actual or constructive notice of such Transfer, shall not be a waiver or estoppel of Secured Party's said rights. 25. Grantor's Copy. Grantor acknowledges receipt of a copy of the Agreement and this Deed of Trust. EXECUTED BY GRANTOR HERITAGE JFA GYPSUM, LLC A Colorado Limited Liability Company By: Heritage Development Group, LLC A Colorado Limited Liability Company, its Manager ~~ sy: N issell Title: Manager STATE OF COLORADO County of Pitkin } ss. The foregoing instrument was acknowledged before me this 15th day of Janua , 2008 by` Scott B. Russell as Manager of M e Development Group. LLC. Manager of Heritage JFA Gvosum LLC. Witness my hand and official My commission expires: `~ ! a' ~ ~ o is JENNIFER E. FULTON-MILLER NOTARY PUBLIC p~ (~~ L-r- STATE OF COLORADO Address `If a natural person or persons, insert the name(s) of such person(s). If a corporation, insert, for example, "John Doe as President and Jane Dce as Secretary of Doe & Co, a Colorado corporation" If a partnership, insert, for example, "Sam Smith as general partner in and for Smith & Smith, a general partnership." {00136884.DOC / 1}No. TD72-10-06. DEED OF TRUST (Dae oa Transfer -Strict) Page 5 of 5 Initial Initiate Freeform Wire -Confirmation Contact Us Welp Wre Transfer Home I Initiate Freeform Wire -Confirmation Reports Initiate Templated Wires Single_ Wre Single Wire Express Initiate Freeform Wire Domestic I l ~ Your sequence number is 001978 nternationa . Pending Wires You may want to print this page for your records. Awaiting Approval Awaiting Repair Today's Date:01/15/2008 Unsuccessful Future Dated Today's Time:04:01 PM ET Wire Templates Debit Account: 7130000906[EAGLE COUNTY TREASURER] Awaiting Approval Awaiting Repair Transfer Type: Domestic Copy /Modify Templates Create Template Status: ENTRD Beneficiary: 4749757698 [Meritage Development Group, LLCq] Value Date: 01/15/2008 Execution Date: 01/15/2008 Wire Amount: 4,500,000.00 USD Page 1 of 1 Welcome Mai Save Freeform Information as New Template (optional) To save you time in the future you may save the previously entered data as a template. Yc be prompted to enter a name and description for the new template on a subsequent scree ,. ®Copyright 2002- 2008 Wells Fargo. All rights reserved. https://ceowt.wellsfargo.com/wires/FreeformConfirm/index jsp 1/15/2008