Press Alt + R to read the document text or Alt + P to download or print.

No preview available

The URL can be used to link to this page

Home My WebLink AboutC02-222 Berry Creek LLC - deed%Q aov" DEED OF TRUST TO PUBLIC TRUSTEE, SECURITY AGREEMENT, FINANCING STATEMENT, ASSIGNMENT OF RENTS AND LEASES, AND FIXTURE FILING Dated July 2002 from EAGLE COUNTY, COLORADO and BERRY CREEK LE I1TED LIABILITY CO. to THE PUBLIC TRUSTEE OF EAGLE COUNTY, COLORADO for the benefit of WELLS FARGO BANK WEST, NATIONAL ASSOCIATION Upon Recording Return to: Holme Roberts & Owen LLP 1700 Lincoln Street, Suite 4100 Denver, CO 80203 Attn: PH�^ inn #822097 v5 TABLE OF CONTENTS ARTICLE1 DEFINITIONS......................................................................................................1 1.1 Collateral.........................................................................................................................1 1.2 Default Rate ...................... ............................................. :.................................................. 1 1.3 Land................................................................................................................................. 1 1.4 Loan................................................................................................................................. 2 1.5 Loan Agreement............................................................................................................... 2 1.6 Loan Documents.............................................................................................................. 2 1.7 Note.................................................................................................................................. 2 1.8 Property ............................................................................................................................2 1.9 Secured Obligations......................................................................................................... 5 ARTICLE2 GRANTING CLAUSE.......................................................................................... 6 2.1 Grant to Trustee............................................................................................................... 6 2.2 Security Interest to Beneficiary....................................................................................... 6 2.3 Fixture Filing................................................................................................................... 6 N .. ARTICLE 3 REPRESENTATIONS AND WARRANTIES ................................................... 6 m� 3.1 Title to the Property ......................................................................................................... 6 o 0 3.2 Governmental Authorizations... 7 CD ........................................................................................ N M C 3.3 Receiver or Foreclosure Proceeding....., ..................................... 3.4 Access....................................................................................................................... 7 co 0 • 3.5 Assessments..................................................................................................................... 7 N3.6 No Defaults or Violations................................................................................................ 7 3.7 Leases...............................................................................................................................7 3.8 Options.............................................................................................................................. 7 3.9 Brokerage Agreements ................... .......................... 7 3.10 Contracts.......................................................................................................................... 8 111 Licenses and Permits..........................................................................................:............. 8 3.12 Insurance.......................................................................................................................... 8 - 3.13 ................................................................................. Lease Subordinate to Deed of Trust 8 ARTICLE 4 AFFIRMATIVE COVENANTS.......................................................................... 8 N ; 4.1 Payment of Note and Secured Obligations...................................................................... 8 4.2 Performance of Other Obligations................................................................................... 8 4.3 Other Encumbrances........................................................................................................ 8 0 Payment Taxes 9 4.4 of ............................................................................................................. 4.5 Maintenance of Insurance.............................................................................................. 10 4.6 Proceeds of Insurance.................................................................................................... 12 4.7 Condemnation................................................................................................................ 13 4.8 Maintenance and Repair of Property; Compliance with Laws, Etc ............................... 14 0822097 v5 114mv E5 4.9 Mechanics' Liens ................................................ 4.10 Defense of Actions......................................................................................................... 15 4.11 Priority of Leases........................................................................................................... 15 4.12 Further Assurances; Estoppel Certificates..................................................................... 15 4.13 Accounts and Records............................................................. 4.14 Payment of Expenses..................................................................................................... 15 4.15 Inspection.......................................................................................................................16 4.16 Indemnity..................................................................... . 4.17 Principal Place of Business........................................................................................... 17 4.18 Letter -of -Credit Rights ......................... :...................... t.................................................. 17 ARTICLE 5 GRANTOR'S NEGATIVE COVENANTS......................................................17 5.1 Waste and Alterations................................................................... 5.2 Zoning and Private Covenants.......................................................................................17 . 5.3 Prohibited Transfers and Encumbrances....................................................................... 18 5.4 Assessments Against Property ....................................................................................... 18 5.5 Transfer or Removal of Chattels....................................................................................18 5.6 Change of Use or Name.................................................................................................18 5.7 Improper -Use of Property ..............................................................................................19 5.8 Use of Proceeds...............................................................................................................19 5.9 No Amendment or Modification.:..................................................................................19 ARTICLE 6 UNIFORM COMMERCIAL CODE................................................................19 .6.1 Security Agreement....................................................................................................... 19 6.2 Representations, Warranties and Covenants..................................................................19 6.3 Remedies........................................................................................................................20 6.4 Other.............................................................................................................................. 21 ARTICLE 7 EVENTS OF DEFAULT.............:...................................................................... 21 7.1 Payments........................................................................................................................ 21 7.2 Other Obligations........................................................................................................... 21 7.3 Default Under Loan Documents ... ...... ............................. :............................................. 21 7.4 Default Under Other Liens or Encumbrances..................................................0............. 21 7.5 Appointment of Receiver ............. .......................... .................... ......... ............... 7.6 Misrepresentation.....................:.....................................................................................22 7.7 Judgments...................................................................................................................... 22 T8 Assertion of Priority...................................................................................................:... 22 7.9 Admissions Regarding Debts...... ............................................... o ...................... o .... oo__ 22 7.10 County's Additional Rights........................................................................................... 22 ARTICLED.........................................................................22 8.1 Acceleration................................................................................................................... 23 ' 'g............................................. i 8.2 Performance of Defaulted Obligations ............................. 23 1 8.3 Specific Performance and Injunctive. Relief.................................................................. 23 8.4 Suit for Monetary Relief................................................................................................ 23 8.5 Possession of Property.....:............................................................................................. 23 8.6 Enforcement of Security Interests.................................................................................. 23 #822097 vs ii L � � m :; �qrW4a 0 - m0 r41- is I� o0aCnGD N �1z s� co o U W r � N LL to 8.7 Foreclosure.....................................................................................................................23- 8.8 Appointment of Receiver........................................................................................ 8.9 Right to Take Possession............................................................................................... 25 8.10 Right to Make Repairs, Improvements ................ :................. ........................................ 26 8.11 Waivers...........................................:....................:......................................................... 26 ARTICLE 9 MISCELLANEOUS PROVISIONS.................................................................. 27 9.1 Effect of Extensions of Time and Amendments On Junior Liens and Others ............... 27 9.2 Joint and Several Obligations........................................................................................ 27 9.3 Mortgagee in Possession .......................................... .:..... .................. ......... ........... ....... ... 27 9.4 Title in Grantor's Successors.......................................................................................... 27 9.5 Rights Cumulative.............:............................................................................................ 27 9.6 Waiver .................... .......................................................................... . ............................. 28 9.7 No -Third Party Beneficiaries......................................................................................... 28 9.8 Preservation of Liability and Priority............................................................................ 28 9.9 Successors and Assigns... ......... o ............................................. o .................. o .................... 28 9.10 g ty ............ .. Provisions Severable/Ille ali........................................................................ 28 9.11 Captions and Pronouns................................................................................................... 29 9.12 Addresses and Notices................................................................................................... 29 9.13 Further Assurances........................................................................ 9.14 Recording.............................................................. 9.15 Governing Law ...:................. ......................................... .............................. .................... 31 9.16 Time of Essence........................................................................................0.................... 31 9.17 Jurisdiction and Venue .......................................... ............................................................ 31 9.18 Waiver of Jury Trial..................................................:............................I........................ 31 9.19 Waiver of Homestead and Other Exemptions ..... ......................... .......................... ......... 31 9.20 Construction Deed of Trust ................................ 9.21 Partial Releases.............................................................................................................. 31 . EXHIBITA............................................................................................................................. A-1 LEGAL DESCRIPTION OF THE LAND............................................................................. A-1 EXHIBITB............................................................................................................................. B-1 PERMITTED ENCUMBRANCES........................................................................................ B-1 #822097 v5 iii lv� DEED OF TRUST TO PUBLIC TRUSTEE, SECURITY AGREEMENT, FINANCING STATEMENT, ASSIGNMENT OF RENTS AND LEASES, AND FIXTURE FILING THIS DEED OF TRUST TO PUBLIC TRUSTEE, SECURITY AGREEMENT, FINANCING STATEMENT, ASSIGNMENT QF RENTS AND LEASES AND FIXTURE FILING ("Deed of Trust"), dated July 2002, is given by EAGLE COUNTY, COLORADO, (the "County") a body corporate and politic organized and existing under the laws of the State of Colorado, by and through its Board of County Commissioners, as to its fee simple interest in the Property, and BERRY CREEK LIMITED LIABILITY CO., a Colorado limited liability company ("Berry Creek"), as to its leasehold interest in the Property, (each a "Grantor" and sometimes collectively, and together with any future owner of the Property or any part thereof or any interest therein, referred to as "Grantors"), to the PUBLIC TRUSTEE OF EAGLE COUNTY, COLORADO ("Trustee") for the benefit of WELLS FARGO BANK WEST, NATIONAL ASSOCIATION, a national banking association (together with any future holder of the Note, "Beneficiary"), whose address is MAC#C7301-043, 1740 Broadway, Denver, Colorado 80274. ---� ARTICLE 1 N DEFINITIONS 6� o � 6t In addition to other definitions contained herein, the following terms shall have the C meanings set forth below: 00 a a 1.1 Collateral. Any part of the Property. that may or might now or hereafter be N deemed to be personal property, fixtures or other property covered by Article 9 of the Uniform _ Commercial Code. 1.2 Default Rate. The greater at any time of (a) 18 percent per annum, or (b) such i fluctuating rate, adjustable the day of any change in such rate, that is equal to five percentage points above the annual rate publicly announced or published from time to time by Wells Fargo Bank West, National Association in Denver, Colorado, as its prime rate, which rate may not be the lowest interest rate charged by such bank. W ' 1.3 Land. The tract or tracts of land described on Exhibit A attached hereto and made yj a part hereof located in Eagle County, Colorado. LL !j c. N #822097 v5 �%� 1.4 Loan. The revolving loan in the original maximum principal amount of $12,500,000 from Beneficiary to Berry Creek, as evidenced by the Note. 1.5 Loan Agreement. That certain Loan Agreement, dated the date hereof, between Berry Creek and Beneficiary, which governs the Loan. 1.6 Loan Documents. The Note, the Loan Agreement, all of the deeds of trust, mortgages, assignments of rents and leases, security agreements, assignments of contracts, guaranties and other documents, instruments and agreements evidencing, governing, securing or otherwise relating to . the Loan, . including without limitation this Deed of Trust; and all modifications, extensions, renewals,. and replacements of any of the foregoing. 1.7 Note. The Promissory Note, dated the date hereof, from Berry Creek payable to the order of Beneficiary in the principal face amount of $12,500,000, together with all amendments, renewals, extensions, modifications and restatements of such promissory note. 1.8 Property. The Land, together with all of the following property and rights: (a) any and all structures, improvements, tenements, buildings, facilities and fixtures now or hereafter located or constructed on the Land (collectively, "Improvements"), as well as all. easements, licenses, permits, rights -of -way, privileges, reservations, allowances, hereditaments and appurtenances, now or hereafter belonging or pertaining to the band; (b) all of Grantors' right, title and interest in any land lying between the boundaries of the Land and the center line of any adjacent street, road, avenue or alley, whether existing, vacated or proposed; (c) all minerals, crops,, timber, trees, shrubs, plants, flowers and landscaping features or materials now or hereafter located on, under or above the Land; (d) all as -extracted collateral produced from or allocated to the Land; (e) all development rights associated with the Land, now existing or hereafter transferred to the Land from other real property or now or hereafter susceptible of transfer to or from the Land; (f) all insurance proceeds paid or payable upon any damage to or destruction of any improvements or other property, whether real, personal or mixed, located on the Land; (g) all awards and payments, including without limitation interest payments, resulting from the exercise of any right of condemnation or eminent domain or from any other public or private taking of, injury to or decrease in the value of, any of the Land or Improvements, or any agreement or conveyance in lieu of any such action; € 822097 Vs 2 (h) all architects', -contractors' and suppliers' agreements and contracts and all plans and specifications relating to the construction and improvements on or to the Land if applicable, whether now or in the future; (i) any and all rights to obtain water, sewer and other services from municipalities and service districts; together with all deposits given to such entities; 6) all (i) right, title and interest that Grantors have or may hereafter have in and to all leases, tenancies, or. other occupancy arrangements, whether oral or written, now or hereafter entered into in connection- with or affecting the Property, or any part thereof, including each GrantoQr's ryes ective interests in and to that certain Land Lease and Option Agreement dated`y co, 2002, by and between the County and Berry Creek (the "Land Lease and Option Agreement) (collectively, the "Leases") and (ii) all of the rents, income, receipts, revenues, issues and - profits of or from the Land and the Improvements; (k) any and all rights and estates in reversion or remainder; (1) ' all water and water rights, ditches and ditch rights, reservoirs and storage rights,_ wells and well rights, springs and spring rights, groundwater rights (whether tributary, nontributary or not-nontributary), water contracts, water allotments; water taps, shares in ditch or reservoir companies; and all other rights of any kind or nature in or to the use of water, which are appurtenant to; historically used on or in connection with, or located on or under the Land, together,with any and all easements, rights of way, fixtures, personal property, contract rights, permits or decrees associated with or used in connection with any such rights; N (m) all of the following property owned by Berry Creek: all machinery, i r4ft a apparatus, equipment, furniture, funiishings, fittings and fixtures and software embedded i S o a 11� therein (whether actually or constructively attached, and including all trade fixtures) now C or hereafter located in, on or under the Land or Improvements and used or usable in GD connection with any present or future operation on the Land, including but not limited to 00 a m m ' all heating, air-conditioning, gas, electricity, water, power lighting, sprinkler protection, waste removal, refrigeration, ventilation, freezing, laundry, incinerating and power i equipment; engines; pipes; pumps; tanks; motors; conduits; switchboards; plumbing, —= �— lifting, cleaning, fire prevention, fire extinguishing,ventilatin cookie and g� g� p � g� g� ' communications apparatus; boilers, water heaters, ranges, furnaces, and burners; appliances; vacuum cleaning systems; elevators; escalators; shades; awnings; screens; storm doors and windows; stoves; refrigerators; attached cabinets; partitions; ducts and :._ compressors; rugs and .carpets; draperies; beds, bureaus, chests, desks, lamps, bookcases, ■� g tables, chairs and couches; radios and television sets; china, glassware, silverware, tableware, linens, towels, bedding and blankets; kitchen equipment and utensils; bars and bar fixtures; uniforms; safes, vaults, cash registers, accounting and duplicating machines; hstatuary, hangings, mirrors, decorations, pictures and ornaments; and all additions thereto L and replacements therefor; Iftv", (n) all goods, inventory, equipment, building and other materials, supplies, and other tangible personal property of every nature now owned or hereafter acquired by Berry Creek and used or intended for use in the construction, development, or operation of the Land or any improvements, if applicable, together with all accessions thereto, replacements and substitutions therefor, and proceeds thereof; (o) all of the records and books, computer programs, tapes, discs, software and other like records and information now or hereafter maintained by or on behalf of Grantors in connection with the operation cf the Improvements; (p) the right to use all trademarks and trade names and symbols or logos used in connection with the operation of the Land or the Improvements and the good will associated therewith; (q) all monies in the possession of Beneficiary (including without limitation retainages and deposits for taxes and insurance), and all utility and other deposits or prepayments made by Berry Creek or due, payable or refundable to Berry Creek. at any time arising out of or in connection with all or any part of the property, rights and interests described in this Section 1.8; (r) deposit accounts and other bank or similar accounts of Berry Creek (together with all amounts in any such accounts), monies, accounts, accounts receivable, contract rights and general intangibles. (whether now owned or existing or- hereafter created or acquired, and including proceeds thereof) relating in any way to, or arising in any manner from, Berry Creek's ownership, use, operation, leasing, or sale of all or any part of the property, rights and interests described in this Section 1.8; (s) any other real property acquired by Grantors after the date hereof which is adjacent or contiguous to the Land and is acquired by Grantors as a continuation, completion, correction or supplement to the Land, o (t) any and all other rights and interests of every name and nature in all CO a 0 00 property, whether real, personal or mixed, tangible or intangible, now or hereafter owned - or leased by Berry Creek, forming a part of or used in connection with or relating to the N ; Land and the construction, operation and convenience of the Improvements; t (u) all present and future leases, subleases, licenses, concessions or grants or other possessory interests now or hereafter in force, whether oral or written, covering or ED affecting all or any portion of the Improvements or the Land, and all modifications, extensions or renewals thereof; .�� O (v) to the extent not included in the foregoing, all of the personal and fixture W property of every kind and nature, all proceeds and products thereof, and all supporting obligations ancillary to or arising in any way in connection therewith (including, without y . limitation, all furniture, fixtures, raw materials and deposit accounts, books, records, ledger sheets, files and other data and documents, including records in any form (digital L #822097 vs 4 or other) and recorded in or through any medium (magnetic, lasergraphic or other) and all machinery and processes (including computer programming instructions) required -to read and print such records, now or hereafter existing, rights and interests, present and future, tangible and intangible, which are owned by Berry Creek- or in which Berry Creek otherwise has any rights, including without limitation all "accounts," "goods, "inventory," "equipment," "fixtures," "chattel paper," "documents" and "general intangibles," as all such quoted terms are defined in or encompassed by the Uniform Commercial Code as enacted by the State of Colorado as in effect from time to time; . (w) all letter -of -credit rights (whether or not the letter of credit is evidenced by a writing) Berry Creek- now has or hereafter acquires relating to the properties, rights, titles and interests referred to in this Section 1.8; and (x) any and all proceeds from the sale or other disposition of any of the foregoing. 1.9 Secured Obligations. All of the following: (a) Note. All indebtedness now and hereafter evidenced by the Note and any and all modifications, extensions, renewals and rearrangements of the Note. (b) Advances. Any and all sums, together with interest thereon, which may hereafter be advanced by Beneficiary or otherwise due under- the. terms of this Deed of Trust. or the other Loan Documents. (c) Other Loan Documents. All present and future obligations which constitute indebtedness of Berry Creek or any other party under the Loan Documents. N (d) Related Secured Obli ag tions. All other loans from Beneficiary to Berry Creek or amounts advanced at any time by Beneficiary to Berry Creek in connection with Nm or relating to the Property not otherwise specifically described in this Section 1.9. (e) Future Indebtedness. All other indebtedness of Berry Creek now or CO amom m hereafter incurred which is held or owned by Beneficiary, whether direct or indirect, i N primary or secondary, fixed or contingent, joint, several or both, and regardless of how evidenced, incurred or arising, including, but not limited to, any indebtedness incurred or '=— arising under any of the Loan Documents. 'M ■■ ED Q) Environmental Indemnity Agreement. All obligations of Berry Creek under the Environmental Indemnity Agreement dated the date hereof between Berry Creek and Beneficiary. ' � f Any term used or defined in the Colorado Uniform Commercial Code, as in effect from time to time, and not defined in this Deed of Trust has the meaning given to the term in the Colorado Uniform- Commercial Code, as in effect from time to time, when used in FA; • �■ �- .this Deed of Trust. #822097 Ys 5 L� LM ARTICLE 2 GRANTING CLAUSE 2.1 Grant to* Trustee. As security for the Secured Obligations, Grantors hereby grant, bargain, mortgage, sell, and convey the Property to Trustee, in trust; with power of sale, for the use and benefit of Beneficiary, subject to all provisions hereof. 22 Security Interest to Beneficiary. As additional security for the Secured Obligations, Berry Creek hereby grants to Beneficiary a security interest in the Property. To the extent any of the Collateral has been or may be acquired with funds advanced by Beneficiary under the Loan Documents, this security interest granted hereunder is a purchase money security interest. 2.3 Fixture Filing. This Deed of Trust shall also be effective as a financing statement filed as a fixture filing with respect to all fixtures included within the Property and is to be filed for record in the real estate records of each county where any part of the Property (including said fixtures) is situated. This Deed of Trust shall also be effective as a financing statement covering as -extracted collateral (including oil and gas and timber to be cut), accounts and general intangibles under the Colorado Uniform Commercial Code, as in effect from time to time, and -_--l-Gads; azs- east-otie-ta-tan�ein-ate-other-state--were. the`---- _------- Property is situated which will be financed at the wellhead or minehead. of the wells or mines located on the Property and is to be filed for record in the real estate records of each county where any part of the Property is situated. This Deed of Trust shall also be effective as a financing statement covering any other Property and may be filed in any other appropriate filing or recording office. The mailing address of each Grantor and the Beneficiary are set forth at the end of this Deed of Trust. A carbon, photographic or other reproduction of this Deed of Trust or �`r N of any financing statement relating to this Deed of Trust shall be sufficient as a financing statement for any of the purposes referred to in this Section. O N 0 4 m ARTICLE 3 .. c REPRESENTATIONS AND WARRANTIES coam0 Grantors hereby represent and warrant to Beneficiary as follows: N OC 3.1 Title to the Property. The County has good and marketable title to the Property i (other than the Collateral) in fee simple, subject only to those matters set forth in Exhibit B attached hereto, and Berry Creek is the owner of the Collateral, free of any liens, encumbrances, security interests, and other claims whatsoever, except insofar as the Collateral may be encumbered by any encumbrance listed in Exhibit B. The Land Lease and Option Agreement g has been properly executed by the County and Berry Creek, is in full force and effect and is binding upon the parties thereto. The County, for itself and its successors and assigns, hereby Wagrees to warrant and forever defend .title to the Property against every person whomsoever lawfully claiming the same or any part thereof. LL #822097 vs 6 N �°m� M O 00 Lo I T CJ , �i W L � t L N 3.2 Governmental Authorizations. All actions necessary to be taken by the County to authorize the pledge of the Property by this Deed of Trust have been taken and the appropriate authorizations have been received. To the best of Grantors' knowledge, no ' additional authorization, approval, consent or other action by, and .no notice to or filing with, any governmental authority or regulatory body is required for the due execution, delivery and performance by the County and Berry Creek of this Deed of Trust or Berry Creek of any of the Loan Documents or the effectiveness of any assignment of any of Grantors' rights and interests of any kind to Beneficiary. 3.3 Receiver or Foreclosure Proceedina. No part of the Property is in the hands of a receiver and, to the best of Grantors' knowledge, no application for a receiver is pending, and no part of the Property is subject to any foreclosure or similar proceeding. 3.4 Access. Access to and egress from the Property are available via a publicly dedicated road, and Grantors have no knowledge of any federal, state, county, municipal or other governmental plans to change the highway or road system in the vicinity of the Property or to restrict or change access from any such highway or road to the Property. 3.5 Assessments. There are no special or other assessments for public improvements or. otherwise now affecting the Property, nor do Grantors know of any pending or threatened special assessments affecting the Property or any contemplated improvements affecting the Property that may result in special assessments. There are no tax abatements or exceptions affecting the Property. 3.6 No Defaults or Violations. Grantors have not received any notice from any governmental body having jurisdiction over the Property as to any violation of any applicable law, rule or regulation- or any notice from any insurance company or inspection or rating bureau setting forth any requirements as a condition to the continuation of any insurance coverage on or with respect to the Property or the continuation thereof at premium rates existing at present which have not been remedied. or satisfied. Grantors are not in default, in any manner .which would adversely affect its properties, assets, operations or condition (financial or otherwise), in the performance, observance or fulfillment of any of the obligations, covenants or conditions .set forth in any agreement or instrument to which it is a party or by which it or any of its properties, assets or revenues are bound or any law, rule, regulation, order, writ, judgment, injunction, decree, determination or award of any court or -governmental body or authority. 3.7 Leases. There are no occupancy rights (written or oral), leases or tenancies presently affecting any part of the Property other than the Land Lease and Option Agreement. 3.8 QRtions. There are no options, purchase contracts or other similar agreements of any type (written or oral) presently affecting any part of the Property other than the Land Lease and Option Agreement. 3.9 Brokerage Agreements. There exist no brokerage agreements with respect to any part of the Property. #822097 v5 7 1%W✓ \04✓ 3.10 Contracts. Except as otherwise disclosed to Beneficiary in writing prior to the date hereof, (a) there are no material contracts or agreements in excess of 180 days or not terminable by Grantors on 30 days' notice ("Contracts") presently affecting the Property; (b) Grantors have heretofore delivered to Beneficiary true and correct copies of each of the Contracts together with all amendments thereto; (c) Grantors are not in default of any material obligations under any of the Contracts; and (d) the Contracts represent the complete agreement between Grantors and such other parties as to the services to be performed or materials to be provided thereunder and the compensation to be paid for such services or materials, as applicable, and such other parties possess no unsatisfied claims against Grantors. Grantors are not in default under any of the contracts" and no event has occurred which, with the passing of time or the giving of notice, or both, would constitute a default under any of the Contracts. 3.11 Licenses and Permits. None of the licenses, permits, certificates or authorizations necessary for the beneficial ownership, development, use, occupancy, operation or maintenance of the Property (the "Permits") has been suspended or revoked, and all of the Permits are in,full force and effect, are fully paid for,. and Berry Creek has made or will make application for renewals of any.of the Permits prior to the expiration thereof. 3.12 . Insurance. All insurance policies held by Grantors relating to or affecting the Property are in full force and effect and shall remain in full force and effect through the date of payment in full of the Note. Grantors have not received any notice of default or notice terminating or threatening to terminate any such insurance policy and Grantors have made or will make application for renewals of any of such insurance policies prior to the expiration thereof. 3.13 Lease Subordinate to Deed of Trust. The Land Lease and Option Agreement is subordinate to this Deed of Trust. In the event Beneficiary shall take title to the Property encumbered by this Deed of Trust as provided herein, Beneficiary shall take title free and clear of any Development Agreement or Deed Restrictions (as defined 'in the Land Lease and Option Agreement). ARTICLE 4 AFFIRMATIVE COVENANTS 4.1 - Payment of Note and Secured Obligations. Berry Creek will duly and promptly. pay each and every installment of the principal and of interest and premium, if any, on the Note, as the same become due, without notice or demand and will duly and punctually perform and observe all of the Secured Obligations. 4.2 Performance of Other Obligations. Berry Creek will promptly and strictly perform and comply with all other covenants, conditions, and prohibitions required of Berry Creek by the terms of the Loan Documents. 4.3 Other Encumbrances. Grantors will promptly and strictly perform and comply with all covenants, conditions, and prohibitions required of Grantors in connection with any other encumbrance affecting the Property, or any part thereof, or any interest therein, regardless of whether such other encumbrance is superior or subordinate to the lien hereof. ....--_ #822097 v5 8 4.4 Payment of Taxes. (a) Property Taxes. Berry Creek will pay when due all general and. special taxes, general and special assessments, water charges and other fees, taxes, charges and assessments of every kind and nature whatsoever ("Taxes"), whether or not assessed against Berry Creek, if applicable to the Property or any interest therein, or the Secured Obligations, or any obligation or agreement secured hereby; Berry Creek will deliver to Beneficiary, without notice or demand, duplicate receipts for payment of Taxes within 15 days after payment. (b) Right to Contest. Berry Creek may contest any Taxes in good faith by appropriate proceedings, on the condition that Berry Creek shall first furnish to Beneficiary such security for the payment of the Taxes as Beneficiary may request in Beneficiary's sole and absolute discretion and so long as, in Beneficiary's judgment, each of the following conditions is satisfied: (i) Berry Creek is engaged in and diligently pursuing in good faith administrative or judicial proceedings appropriate to contest the validity or amount of such tax, assessment, or charge; (ii) Berry Creek'g payment of such tax, assessment, or charge would necessarily and materially prejudice Berry Creek's prospects for success in such proceedings; and (iii) Nonpayment of such tax, assessment, or charge will not result in the loss or forfeiture 'of any property encumbered hereby or any interest of Beneficiary therein. o If Beneficiary determines that any one or more of such conditions is not satisfied or is no longer satisfied, Berry Creek will pay the tax, assessment, or charge in question, together iwith any interest and penalties thereon, within ten days after Beneficiary gives notice of a such determination. (c) Deposit for Taxes. Upon the occurrence of an Event of Default, Berry °G Creek will immediately deposit with Beneficiary an amount equal to 1/12th of the `. amount which Beneficiary estimates will be required to make the next annual payment of Taxes, multiplied by the number of whole or partial months that have elapsed since �—= March 31 of the current year. Thereafter, with each monthly payment under the Note, Berry Creek will deposit with Beneficiary an amount equal to 1/12th of the amount which 0 Beneficiary estimates will be required to make the next annual payment of Taxes. The purpose of these provisions is to provide Beneficiary with sufficient funds on hand to pay W all such Taxes thirty (30) days before the date on which they become past due. Provided Rjgm� m I no Event of Default exists hereunder, Beneficiary will apply the amounts so deposited to LLthe payment of Taxes, but in no event will Beneficiary be liable for any interest on any -0 amount so deposited, and the money so received may be held and commingled with #822097 vs 9 Beneficiary's own funds. Beneficiary shall have no responsibility to ensure the adequacy of the amounts deposited hereunder; in the event that such amounts are inadequate to pay the Taxes, Berry Creek shall pay the shortfall. (d) Intangible Taxes. If by reason of any statutory or constitutional amendment or judicial decision adopted or rendered after the date hereof, any tax, assessment, or similar charge is imposed against the Note, against Beneficiary, or against any interest of Beneficiary in any real or personal property encumbered hereby, Berry Creek will pay such tax, assessment, or other charge before delinquency and will indemnify Beneficiary against all loss, expense, or diminution of income in connection therewith. In the event Berry Creek is unable to do .so, either for economic reasons or because the legal provisions or decisions creating such tax, assessment or charge forbid Berry Creek from doing so, the Secured Obligations will, at Beneficiary's option, become due and payable in full upon 30 days' notice to Berry Creek. (e) Other Taxes. Berry Creek will pay when due all federal, state and local sales, use, excise, payroll and other taxes relating to the Property and will deliver to Beneficiary, without notice or demand, duplicate receipts for payment of such taxes with 15 days after payment. 4.5 Maintenance of Insurance. (a) Coverages -Required. Berry Creek shall maintain or cause to be maintained, with financially sound and reputable insurance companies or associations acceptable to .Beneficiary in its sole and absolute discretion, insurance which insures the Property against such perils and hazards as Beneficiary may from time to time require, and in any event, including without limitation: o N a (i) all risk of loss, damage, destruction, theft,- or any other casualty or risk, i N in covering the Property including all of Berry Creek's personal property located to:a therein, without deduction for depreciation, in an amount approved by CO a a ! Beneficiary, but in no event less than the full replacement cost thereof; �m (ii) during any period of alterations or construction on the Property, 4 .� builder's risk insurance in an amount at least equal to the full insurable value or replacement cost of the improvements to which the alteration or construction relates; (iii) use and occupancy insurance covering either rental income or business MOM 0. ' interruption with coverage in an amount not less than six (6) months' anticipated gross rental income; r W (iv) comprehensive general liability insurance covering the Property and =� Berry Creek, in an amount not less than $1,000,000 for bodily injury and/or property damage liability per occurrence or such higher amounts as Beneficiary may reasonably require; �r N #822097 vs 10 M (v) worker's compensation insurance in accordance with the requirements of applicable law; (vi) boiler and machinery insurance, if applicable; and (vii) flood insurance, if applicable. (b) Insurance Policies. All policies of insurance maintained pursuant to this Section 4.5 shall be with companies and in forms and amounts acceptable to Beneficiary in its sole and absolute discretion and shall provide standard mortgagee endorsements or clauses naming Beneficiary as mortgagee and as loss payee (with respect to property insurance) or additional insured (with respect to liability insurance). All required policies shall provide for thirty (30) days' written notice to Beneficiary prior to the effective date of any cancellation or modification thereof. , The original or a certified copy of each insurance policy or a certificate thereof (in form and substance acceptable to Beneficiary) shall be delivered to Beneficiary. (c) Additional Insurance. Berry Creek shall also . maintain, at the request of Beneficiary, such hazard insurance, in addition to the insurance required above, as Beneficiary may reasonably request, including but not limited to flood, including surface waters, and earthquake, including subsidence, all of such insurance to comply in all respects with the requirements of this Section 4.5. (d) Renewal Policies. Not less than thirty (30) days prior to the expiration date of each insurance policy required pursuant to subsection 4.5(a) above, Berry Creek will deliver to Beneficiary an appropriate renewal binder .(including .notices of any changes in coverage) or a certificate thereof (in form and substance acceptable to Beneficiary) together with evidence satisfactory to Beneficiary that the then current premium applicable to the insurance to be issued pursuant to- such binder has been prepaid. (e) Deposit for Premiums. Upon the occurrence of an Event of Default, Berry Creek will immediately deposit with Beneficiary an amount equal to 1/12th of the amount which Beneficiary estimates will be required to make the next annual payments of the premium for the policies of insurance referred to in this Section, multiplied by the number of whole and partial months which have elapsed since the most recent policy anniversary date for each such policy. Thereafter, with each monthly payment under the Note, Berry Creek will deposit an amount equal to 1/12th of the amount which Beneficiary estimates will be required to pay the next required annual premium for each insurance policy referred to in this Section. The purpose of these provisions is to provide Beneficiary with sufficient funds on hand to pay all such premiums thirty (30) days before the date on which they become past due. Provided no default exists hereunder, Beneficiary will apply the amounts so deposited to the payment of such insurance premiums when due, but in no event will. Beneficiary be liable for any interest on any amounts so deposited, and the money so received may be held and commingled with #822097 vs 11 1 � 1 Beneficiary's own funds. Beneficiary shall have no responsibility to ensure the adequacy of the amounts deposited hereunder; in the event that such amounts are inadequate to pay such insurance premiums, Berry Creek shall pay the shortfall. 4.6 Proceeds of Insurance. (a) Notice to Beneficiary. Berry Creek will give Beneficiary prompt notice of any damage to or destruction of the Property. N Right to Settle or Compromise Claims. In case of loss covered by policies of insurance, Beneficiary (or, after entry of decree of foreclosure or Trustee's sale, the purchaser at the foreclosure or Trustee's sale, as the case may be) is hereby authorized at its option, either to (a) settle and adjust any claim under such policies in conjunction with Berry Creek, or (b) allow Berry Creek to agree with the insurance company or companies on the amount to be paid upon the loss; provided, that Beneficiary shall, and is hereby authorized to, collect and receipt for any such insurance proceeds; and the expenses incurred by Beneficiary in the adjustment and collection of insurance proceeds shall be so much additional Secured Obligations, together with interest at the Default Rate, and shall be reimbursed to Beneficiary on demand. (c) Application of Insurance Proceeds. Any insurance proceeds received by Beneficiary with respect to an. insured casualty -may, in Beneficiary's sole discretion, either (a) be retained and applied by Beneficiary toward payment of the Secured Obligations (whether or not then due) in such order as Beneficiary may determine or (b) if no Event of Default (as defined in ARTICLE 7 hereof) shall have occurred and be continuing and subject to the conditions set forth in Section 4.6(d) and the further condition that Beneficiary determines that the Property can be restored, repaired, replaced or rebuilt within a reasonable time prior to the maturity date of the Note, the proceeds of + a insurance may be disbursed to Grantors to pay for the cost of restoring, repairing, replacing or rebuilding the Property or part thereof; and Grantors hereby covenant and 49 m agree forthwith to commence and diligently to prosecute such restoring, repairing, coo � replacing or rebuilding; provided, always, that Berry Creek shall pay all costs of .such restoring, repairing, replacing or rebuilding in excess of the proceeds of insurance. If CO a m a proceeds of insurance shall be made available to Grantors for the restoring, repairing, replacing or rebuilding of the Property, Grantors hereby covenant to restore, repair, replace or rebuild the Property, to be of at least equal value, and of substantially the same -= i character as prior to such damage or destruction; and to be effected in accordance with plans and specifications to be first submitted to and approved by Beneficiary. Beneficiary may, prior to the application of insurance proceeds, commingle them with Beneficiary's own funds and otherwise act with regard to such proceeds as Beneficiary may determine in Beneficiary's sole discretion. - U (d) Disbursement of Insurance Proceeds. If Beneficiary elects to permit W Grantors to use the proceeds to rebuild, such proceeds, if less than $100,000 for a single t; casualty, shall be disbursed directly to Grantors for restoration, repair, replacement and ' rebuilding as required herein and, if more than $100,000, shall be disbursed from time to c' L #822097 vs 12 time upon Beneficiary being furnished with: (a) satisfactory evidence of the estimated cost of completion of the restoration, repair, replacement and rebuilding; (b) funds (or assurances satisfactory to Beneficiary that such funds are available) sufficient in addition to the proceeds of insurance to complete the proposed restoration, repair, replacement and rebuilding; (c) contractors' sworn statements, certificates and lien waivers and such other evidences of cost and of payment as Beneficiary may require and approve; and (d) such other items as Beneficiary may in its sole discretion require; and Beneficiary may, in any event, require that all plans and specifications for such restoration, repair, replacement and rebuilding be submitted to and approved by Beneficiary prior to commencement of work. (e) Rights Upon Foreclosure, Etc. If the Beneficiary shall, by any manner, acquire the title or estate of Grantors -in or to all or any portion of the Property, it shall thereupon become the sole and absolute owner of all insurance policies affecting such portion of the Property with the sole right to collect and retain all proceeds and unearned premiums thereon. Grantors agree, immediately upon demand, to execute and deliver such assignments or other authorizations or instruments as may, in the opinion of the Beneficiary, be necessary or desirable to effectuate the foregoing. 4.7 Condemnation. (a) Assignment to Beneficiary. Grantors hereby assign, transfer and set over to Beneficiary, the .entire proceeds of any award or claim for damages for any of the Property taken or damaged under the power of eminent domain or by condemnation or any other public or private action, including any conveyance or agreement in lieu of any such action. N (b) Notification/Settlement. Grantors shall promptly notify Beneficiary of notice to Grantors of the institution of any proceeding or negotiations for the taking of the Property, or any part thereof, whether for permanent or temporary use and occupancy in condemnation or by the exercise of the power of eminent domain or by agreement of �o interested parties in lieu of such action (all of the foregoing being referred to herein as a CO a m ; "taking"). Grantors shall keep Beneficiary currently advised, in detail, as to the status of such proceedings or negotiations and shall notify Beneficiary promptly of the time and i place of all meetings, hearings, trials, and other proceedings relating. to any such action. Grantors shall promptly give Beneficiary copies of all notices, pleadings, judgments, determinations and other documents received or delivered by Grantors in connection with any such proceedings. Beneficiary may participate in all negotiations and appear and participate in all judicial or arbitration proceedings concerning any award or payment 'r which may be due as a result of such taking or damaging, and may compromise or settle, g_ in the names of both Grantors and Beneficiary, any claim for any such award or payment: m Grantors shall not enter into any settlement or agreement relating to any taking of the Property without Beneficiary's prior written consent. -= ; (c) Application. Any such award or payment is to be paid to Beneficiary and will be applied first to reimburse Beneficiary for all costs and expenses, including 4822097 vs 13 \VAW� attorneys' fees, incurred -by Beneficiary in connection with the ascertainment and collection- of such award or payment. The balance, - if any, of such award or payment may, in Beneficiary's sole discretion, either (i) be retained by Beneficiary and applied toward the Secured Obligations (whether or not then due) in any order that Beneficiary may elect, or (ii) require Grantors to restore or rebuild the Property, in which event, the proceeds shall be held by Beneficiary and used to disburse to Grantors for the cost of such rebuilding or restoring. If Grantors are permitted to rebuild or restore the Property as aforesaid, such rebuilding or restoration shall be effected solely in accordance with. plans and specifications previously submitted to and approved by Beneficiary, and proceeds of the award shall be paid out in the same manner as is provided in Section 4.6(d) hereof for the payment of insurance proceeds towards the cost of rebuilding or restoration. If the amount of such award is insufficient to cover the cost of rebuilding or restoration, Berry Creek shall pay such costs in excess of the award, before being entitled to reimbursement out of the award. Any surplus which may remain out of the award after payment of such costs of rebuilding or restoration shall, at the option of Beneficiary, be applied to the Secured Obligations in such order or manner as Beneficiary may elect or be paid to any other party entitled thereto. (d) No Effect on Secured Obli actions. Beneficiary will have no duty to see to the application of any part of any award or payment released to Berry Creek. Berry Creek's duty to pay the Note in accordance with its terms and to perform the other Secured Obligations will not be suspended by the pendency. ' or discharged by the conclusion of any proceedings for the collection of any such award or -payment, and any reduction in the Secured Obligations resulting from Beneficiary's application of any such award or payment will take effect only when Beneficiary receives such award or payment. If this Deed of Trust has been foreclosed prior to Beneficiary's receipt of such award or payment, Beneficiary may nonetheless retain such award or payment to the extent required to reimburse Beneficiary for all costs and expenses, including attorneys' fees, incurred in connection therewith, and to discharge any deficiency remaining with respect to the Secured Obligations. 0 N m N c° a I 4.8 Maintenance and Repair of Property; Compliance with Laws, Etc. Berry Creek I*- � will at all times maintain the Property in good condition and repair, will diligently prosecute the �o G lh completion of- any building or other improvement which is at any time in the process of co " construction on the Property, and will promptly repair, restore, replace, or rebuild any part of the Property which may be affected by any casualty or any public or private taking or injury to the E N� w Property. All costs and expenses arising out of the foregoing shall be paid by Berry. Creek ! , whether or not the proceeds of any insurance or eminent domain shall be sufficient therefor. Berry Creek will comply with all statutes, ordinances, and other governmental or quasi- ;: governmental requirements and private covenants relating to the ownership, construction, use, or operation of the Property, including but not limited to any environmental or ecological 0 1 requirements; provided, that so long as Berry Creek is not otherwise in default hereunder, Berry - '.Creek may, upon providing Beneficiary with security satisfactory to Beneficiary in its sole discretion, proceed diligently and in good faith to contest the validity or applicability of any suchcc W statute, ordinance, or requirement. Berry Creek shall procure and pay for all Permits. L y .+� ..q 7 #822097 vs 14 4.9 : Mechanics' Liens. Berry Creek will keep the Property free and clear of all liens and claims of liens by contractors, subcontractors, mechanics, laborers, materialmen, and other such persons, and will cause any recorded statement of any such lien to be released of record within thirty, (30) days after the recording thereof. Notwithstanding the preceding sentence, however, Berry Creek will not be deemed to be in default under this Section if and so long as Berry Creek (a) contests in good faith the validity or amount of any asserted lien and diligently prosecutes or defends an action appropriate to obtain a binding determination of the disputed matter, and (b) provides Beneficiary with such security as. Beneficiary may require in its sole discretion to. protect Beneficiary against all loss, damage, and expense, including attorneys' fees, which Beneficiary might incur if the asserted lien is determined to be valid. 4.10 Defense of Actions. Berry Creek will defend, at Berry Creek's expense, any action, proceeding or claim which affects any property encumbered hereby or any interest of Beneficiary in such property or in the Secured Obligations, and will indemnify and hold Beneficiary harmless from all loss, damage, cost, or expense, including attorneys' fees, which Beneficiary may incur in connection therewith. 4.11 Priority of Leases. To the extent Grantors have the right, under the terms of any lease or management agreement relating to the Property, to make such lease or management agreement subordinate to the lien hereof, Grantors will, at Beneficiary's request and Grantors' expense, take such action as may be required to effect such subordination. Conversely, Grantors will, at Beneficiary's request and Grantors' expense, take such action as may be necessary to subordinate the lien hereof to any future lease designated by Beneficiary. 4.12 Further Assurances; Estoppel Certificates. Berry Creek will execute and deliver to Beneficiary upon demand, and pay the. costs of preparation and recording thereof, any further documents which Beneficiary may request to confirm or perfect the liens and security interests created or intended to be created hereby, or to confirm or perfect any evidence of the Secured Obligations. Berry Creek will also, within ten days after any request by Beneficiary, 'deliver to Beneficiary a signed and acknowledged statement certifying to Beneficiary, or to any proposed o a transferee of the Secured Obligations, (a) the balance of principal, interest, and other sums then m N o outstanding under the Note, and (b) whether Berry Creek claims to have any offsets or defenses r`' • • with respect to the Secured Obligations and, if so, the nature of such offsets or defenses. 6� mole OOaaa ` 4.13 Accounts and Records. -Berry Creek shall keep and maintain full and accurate ` N f operations in accordance with generally accepted accounting principles accounts and records o p g Y ep g P P. °C applicable to businesses of the type in which Berry Creek is engaged and consistent with principles heretofore applied by Berry Creek in preparation of the financial statements supplied CD to Beneficiary and permit Beneficiary by its duly authorized agents to inspect and copy such ti accounts and records and all recorded data of any kind or nature, regardless of the medium' of j recording, including, without limitation, all software, writings, plans, specifications and schematics at any reasonable time. 4.14 Payment of Expenses. Berry Creek shall pay on demand all expenses, charges, costs and fees of Beneficiary relating to the Loan, including but not limited to all recording, filing and registration fees; document preparation fees; title insurance charges and premiums; U. _..___ #822097 vs 15 legal fees and disbursements of Beneficiary's attorneys and their staff; copying expenses; loan and commitment fees; costs of consultants retained by Beneficiary in connection with administering the Loan; costs of surveys; fees of any engineer and other professionals r stained by Beneficiary in connection with the Loan; costs of premiums on surety company bonds; appraisal fees; and out-of-pocket expenses of Beneficiary in administering the Loan. 4.15 Inspection. Grantors shall permit Beneficiary and its representatives to enter upon the Property and inspect the Property at all reasonable times. 4.16 Ind emni .' 'Berry Creek shall reimburse and pay Beneficiary for all fees, costs and expenses (including without. limitation, attorneys' fees, court costs .and legal expenses and consultants' and experts' fees and expenses), incurred or expended in connection with (a) the breach by Grantors of any representation or warranty contained in any of the Loan Documents, (b) the failure by Grantor to perform any agreement, covenant, condition, indemnity or obligation contained in any of the Loan Documents, (c) Beneficiary's exercise of any of its rights and remedies under any of the Loan Documents, or (d) the protection of the Property and the liens thereon and security interests therein. Berry Creek shall indemnify and hold harmless Beneficiary and- persons or, entities owned or controlled by or affiliated with Beneficiary and their respective directors, officers, shareholders, partners, employees, consultants and agents (herein individually called an "Indemnified Party," and collectively called "Indemnified Parties") from and against, and reimburse and pay Indemnified Parties with respect to, any and all claims, demands, liabilities, losses, damages (including without limitation, actual, consequential, exemplary and punitive damages), causes. of action, -judgments, penalties, fees, costs and expenses (including without limitation, attorneys' fees, court costs and legal expenses and consultants' and experts' fees and expenses), of any and every kind or character, known or unknown, fixed or contingent, that may be imposed upon, asserted against or incurred or paid by or on behalf of any Indemnified Party on account of, in connection with, or arising out of (a) any bodily injury or death or property damage occurring in or upon or in the vicinity of the Property �--�- through any cause whatsoever, (b) any act performed or omitted to be performed hereunder or m N the breach of or failure to perform any warranty, representation, indemnity, covenant, agreement or condition contained in any of the Loan Documents, (c) any transaction, act, omission, event or circumstance ansmig out of or in any way connected with the Property or with any of -the Loan N N 1 rule, regulation or Documents, and (d) the violation of or failure to comply with any statute, law, gul order now existing or hereafter occurring, including without limitation, environmental laws and CO a a statutes, laws, rules, regulations and orders relating to. pollutants, contarrnnants, wastes or hazardous, dangerous or toxic substances. Without limiting the generality of the foregoing, it is the intention of Berry Creek and Berry Creek agrees that the foregoing indemnities shall apply to each Indemnified Party with respect to claims, demands, liabilities, losses, damages (including without limitation, actual, consequential, exemplary and punitive damages), causes of action, 'e fees costs and expenses (including without limitation, attorneys' fees, court ,.�. judgments, penalties, xp ( g costs and legal expenses and consultants' and experts' fees and expenses) of any and every kind or character, known or unknown, fixed or contingent, that in whole or in part are caused by or M�o arise out of the negligence of such Indemnified Party; however, such indemnities shall not apply to any Indemnified Party to the extent the subject of the indemnification is caused by or arises W1 out of the gross negligence or willful misconduct of such Indemnified Party. The foregoing � L i ; indemnities shall not terminate upon release, foreclosure or other termination of this Deed o CA -LL _ _. #922097 0 16 Trust, but shall survive foreclosure of the liens and security interests created by this Deed of Trust or conveyance in lieu of foreclosure and the repayment and performance of the Secured Obligations and the discharge and release of the liens and security interest, created by this Deed of Trust and the other Loan Documents. Any amount to be paid hereunder by Berry Creek to Beneficiary or for which Berry Creek has indemnified an Indemnified Party shall be a demand - obligation owing by Berry Creek to Beneficiary and shall bear interest at the Default Rate until paid, and shall constitute a part of the Secured Obligations and be indebtedness secured and evidenced.by this Deed of Trust. 4.17 Principal Place of Business. Berry Creek's principal place of business and chief executive office, and the place where Berry Creek keeps its books and records, including recorded data of any kind or nature, regardless of the medium of recording including, without limitation, software, writings, plans, specifications and schematics concerning the Property, has for the preceding four months (or, if less, the entire period of the existence of Berry Creek) been and will continue to be (unless Berry Creek notifies Beneficiary of any change in writing at least 30 days prior to the date of such change) the address of Berry Creek set forth at the end of this Deed of Trust. Berry Creek's organizational identification number, if any, assigned by the state of incorporation or organization is correctly set forth on the first page of this Deed of Trust. Berry Creek shall - promptly notify Beneficiary (i) of any change of its organizational identification number, or (ii) if Berry Creek does not now have an organization identification number and later obtains one, of such organizational identification number. 4.18 Letter -of -Credit Rights. If Berry Creek is at any time a beneficiary under a letter of credit relating to. the properties, rights, titles and interests referred to in Section 1.8 of this Deed of Trust now or hereafter issued in favor of Berry Creek, Berry Creek shall promptly notify Beneficiary thereof and, at the request and option of Beneficiary, Berry Creek shall, pursuant to an agreement in form and substance satisfactory to Beneficiary, either (i) arrange for the issuer and any confirmer of such letter of credit to consent to an assignment to Beneficiary of the proceeds of any drawing under the letter of credit or (ii) arrange for Beneficiary to become the transferee beneficiary of the letter of credit, with Beneficiary agreeing, in each case, that the proceeds of any drawing under the letter of credit are to be applied as provided in Section 8.7 of this Deed of Trust. ARTICLE 5 GRANTORS' NEGATIVE COVENANTS 5.1 Waste and Alterations. Grantors will not commit or permit any waste with respect to* the Property. Grantors shall not cause or permit any part of the Property, including but not limited to any building, structure, parking lot, driveway, landscape scheme, or underground improvement, to be removed, demolished, or altered without the prior written consent of Beneficiary. 5.2 Zoning and Private Covenants. Bevy Creek will not initiate, join in, or consent to any change in any zoning ordinance or classification, any change in the "zone lot" or "zone lots" j (or similar zoning unit or units) presently comprising the Property, any transfer of development rights, any change in any private restrictive covenant, or any change in any other public or #822097 vs 17 private restriction limiting or defining the uses which may be made of the Property or any part thereof, without the express written consent of Beneficiary. If under applicable zoning provisions the use of all or any part of the Property is or becomes a nonconforming use, Berry Creek will not cause such use to be discontinued or abandoned without the express written consent of Beneficiary. 5.3 Prohibited Transfers and Encumbrances. Grantors shall not, either directly or indirectly, create, effect or consent to or shall suffer or permit any conveyance, sale, assignment, transfer, lien, pledge, mortgage, security interest or other encumbrance or alienation of the Property or any part thereof, or interest therein. Ariy change in the ownership or control of Berry Creek or any member of Berry Creek (i.e., the possession, directly or indirectly, of the power to direct or. cause the direction of the management and policies of Berry Creek) shall violate the provisions of this Section 5.3. The provisions of this Section 5.3 shall be operative with respect to, and shall be binding upon, any persons who shall acquire any part of or interest in or encumbrance upon the Property. Provided however, transfers of membership interests in Berry Creek and its Members shall be permitted so long as Mark R. Ross and Andrew Gerber retain the power to direct or cause the direction of'the management and policies of Berry Creek. 5.4 Assessments Against Propen. Berry Creek will not, without the prior written approval of Beneficiary, which may be withheld for any reason;. consent to or allow the creation of any so-called special districts, special improvement districts, benefit assessment districts or similar districts, or any other body or entity of any type, or allow to occur any other event, that would or might result in the imposition of any. additional -taxes, assessments or other monetary obligations or burdens on the. Property, and this provisions shall serve as RECORD NOTICE to any such district or districts or any governmental entity under whose authority such district or districts exist or are being -formed that, should Berry Creek or any other person or entity include all or any portion of the Property in such .district or districts, whether formed or in the process of formation, without first obtaining Beneficiary's express written consent, the rights of Beneficiary in the Property pursuant to this Deed of Trust or following any foreclosure of this Deed of Trust, shall be senior and superior to any taxes, charges, fees, assessments or other impositions of any kind or nature whatsoever, or liens (whether statutory, contractual or otherwise) levied or . o cc' inclusion or to be levied or imposed, upon the Property or any portion thereof as a result of I 0 N N inclusion of the Property in such district or districts. 5.5 Transfer or Removal of Chattels.. Berry Creek will not sell, transfer or remove CO to m from the Property all or any part of the Collateral except that Berry Creek may sell, transfer or. m remove from the Property, such Collateral as from time to time becomes worn out or obsolete, on the condition that such Collateral is replaced with like collateral having similar value. 5.6 Change of Use or Name. Berry Creek will not change the use of the Property or { the name under which Berry Creek does business, or adopt or begin doing business under any other name or assumed or trade name, without the prior written consent of Beneficiary. Berry o Creek's exact legal name is correctly set forth at the end of this Deed of Trust. Berry Creek is an organization of the type and is incorporated in or organized under the laws of the state specified I in the introductory paragraph of this Deed of Trust. i W ■� H N 1#822097 0 18 10MV. 5.7 Improper Use of Proper Grantors will not use the Property for any purpose or in any manner which violates any applicable law, ordinance, license, permit or _ other governmental requirement, the requirements or conditions of any insurance policy, or any private covenant. 5.8 Use of Proceeds. Berry Creek will not use any funds advanced by Beneficiary under the Loan Documents for any purpose other than as permitted by the provisions of the Loan Documents. 5.9 No Amendment or Modification: Neither the County nor Berry Creek shall amend, modify, or terminate the Land Lease or Option Agreement, nor shall the County surrender the Property. No amendment, modification, termination of the Land Lease or. Option Agreement, nor any surrender of the Property shall be valid or enforceable without the prior consent of Beneficiary. ARTICLE 6 UNIFORM COMMERCIAL CODE 6.1 Secur V Agreement. This Deed of Trust constitutes a Security Agreement under the Uniform Commercial Code of the State of Colorado as in effect from time to time (herein called the "Code") and all of the terms, provisions, conditions and agreements contained in this Deed of Trust pertain and apply to the Collateral as fully and to the same extent as to any other property comprising the Property. The following provisions of this ARTICLE 6 shall not limit the generality or applicability of any other provision of this Deed of Trust but shall be in addition thereto. -- X 6.2 Representations. Warranties and Covenants. i N F%- w (a) Berry Creek (being the Debtor as that term is used in the Code) is and will WN N m be the true and lawful owner of the Collateral, subject to no liens, charges or M o encumbrances other than the lien of this Deed of Trust and the matters set forth in Exhibit 0 B hereto; tom coo. aI (b) the Collateral shall be used by Berry Creek solely for business purposes, being installed upon the Property for Berry Creek's own use or as the equipment and � '= 'shin s furnished b Be Creek as landlord to tenants of the Property; faro g y Berry , � � �L �' ` (c) the Collateral shall be kept at the real estate comprising a part of the Property, and shall not be removed therefrom without the consent of Beneficiary (being the Secured Party as that term is used in the Code); and the Collateral may be affixed to o such real estate but shall not be affixed to any other real estate; .� -. m W ' (d) no financing statement covering any of the Collateral or any proceeds m y thereof is on file in any public office except as described on Exhibit B hereto; and Berry Creek will, at its cost and expense, upon demand, furnish to Beneficiary such further Linformation and will execute and deliver to Beneficiary such financing statements and . N ' #822097 v5 19 other documents in form satisfactory to Beneficiary and will do all such acts and things as Beneficiary may at any time or from time to time reasonably request or as may be necessary or appropriate to establish and maintain a perfected security interest in the Collateral as security for the Secured Obligations, subject to no adverse liens or encumbrances except as otherwise permitted herein; and Berry Creek will pay the cost of filing the same or filing or recording such financing statements or other documents, and this instrument in all public offices wherever filing or recording is deemed by Beneficiary to be necessary or desirable; 6.3 . Remedies. (a) Upon any Event of Default hereunder, and at any. time thereafter, Beneficiary at its option may declare the Secured Obligations immediately due and payable, all as more fully set forth in ARTICLE 8 hereof, and thereupon, Beneficiary shall have the remedies of a secured party under the Code, including without limitation, the right to take immediate and exclusive possession of the Collateral, .or any part thereof, and for that purpose may, so far as Berry Creek can give authority therefor, with or without judicial process, enter (if this can be done without breach of the peace) upon any place on which the Collateral or any part thereof may be situated and remove the same therefrom (provided, that if the Collateral is affixed to real estate, such removal shall be subject to the conditions stated in the Code); and Beneficiary shall be entitled to hold, maintain, preserve and prepare the Collateral for sale, until disposed of, or may propose to retain the Collateral subject to Berry Creek's right of redemption, if any, in satisfaction of Berry Creek's obligations, as provided in the Code. Beneficiary without removal may render the Collateral unusable and dispose of the Collateral on the Property. Beneficiary may require Berry Creek to assemble the Collateral and make it available to Beneficiary for its possession at a place to be designated by Beneficiary that is reasonably convenient to both parties. Beneficiary shall give Berry Creek at least five days' notice of the time and place of any public sale thereof or of the time after which any private sale or any other intended disposition thereof is made. The, requirements of reasonable notice shall be met if such notice is mailed, by certified mail or equivalent, postage prepaid, to the address of Berry Creek referred to in Section 9.12 of this Deed of Trust at least five days before the time of the sale or disposition. Beneficiary may buy at any public sale, and Beneficiary may buy at private sale if the Collateral is of a type customarily sold in a recognized market or is of a type that is the subject of widely distributed standard price quotations. Any such sale may be held as part of and in conjunction with any judicial foreclosure sale or Trustee's sale of the real estate comprised within the Property, the Collateral and real estate to be sold as one lot if Beneficiary so elects. The net proceeds realized upon any such disposition after deduction for the expenses of retaking, holding, preparing for sale, selling or the like and the fees and disbursements of attorneys and their staff incurred by Beneficiary, shall be applied in satisfaction of the Secured Obligations; and Beneficiary shall account to Berry Creek for any surplus realized on such disposition. #822097 v5 20 6.4 Other. (a) The remedies of Beneficiary hereunder are cumulative and the exercise of any one or more of the remedies provided for herein or under the Code shall not be construed as a waiver of any of the other remedies of Beneficiary, including without limitation having the Collateral deemed part of the realty upon any judicial foreclosure or Trustee's sale thereof so long as any part of the Secured Obligations remains unsatisfied; (b) The terms and provisions contained in .this ARTICLE 6 shall, unless the context otherwise requires, have the meanings and be construed as provided in the Code; and (c) This Deed of Trust constitutes a financing statement under the Code with respect to the Collateral.. As such, this Deed of Trust covers all items of the Collateral that are or become fixtures on the Property. (d) Berry Creek will, from time to time at the request of Beneficiary, supply Beneficiary with a current inventory of the Collateral, in such detail as Beneficiary may require. ARTICLE 7 EVENTS OF DEFAULT Each of the following events shall constitute a default (an "Event of Default") under this Deed of Trust and under each of the other Loan Documents: 7.1 Payments. Berry Creek shall fail to pay any monetary obligation due hereunder or under any other Loan Document or under the Land Lease and Option Agreement; 7.2 Other Obligations. The failure of Grantors to properly perform any obligation contained herein (other than those set forth in Section 7.1 above); 7.3 Default Under Loan Documents. The occurrence of any default by Berry. Creek, or the occurrence of any event or circumstance defined as an event of default, under any of the Loan Documents other than this Deed of Trust; 7.4 . Default Under Other Liens or Encumbrances. The occurrence of any default by. Berry Creek, or the occurrence of any event or circumstance defined as an event of default, under any other mortgage, deed of trust of other lien or encumbrance on the Property or under the Land Lease and Option Agreement; 7.5 . Appointment of Receiver. The appointment of a trustee or receiver for the assets, or any part thereof, of Berry Creek, or the appointment of a trustee or receiver for any real or personal property, or the like, or any part thereof, representing the security for the Secured Obligations, which is not dismissed within 30 days; #822097 vs 21 1qWV 400W 7.6 Misrepresentation. If any representation or warranty made by the County or made by Berry Creek, or any other -party liable for the payment of the Secured Obligations, whether as maker, endorser, guarantor, surety or otherwise, herein, or in any of the other Loan Documents or any other instrument or document modifying, renewing, extending, evidencing, securing or pertaining to the Loan is false, misleading or erroneous in any material respect; 7.7 Judgments. The entry of a judgment against Berry Creek in an amount which, in Lender's sole discretion, Lender believes will materially impair Berry Creek's ability to perform its Obligations, or any party liable for the payment of the Secured Obligations, whether as maker, endorser, guarantor, surety or otherwise; 7.8 Assertion of Priority. The assertion of any claim of priority over this Deed of Trust, by title, lien, or otherwise, unless Grantors within 30 days after such assertion either causes the assertion to be withdrawn or provides Beneficiary with such security as Beneficiary may require to protect Beneficiary against all loss, damage, or expense, including attorneys' fees, which Beneficiary may incur in the event such assertion is upheld; or 7.9 Admissions Regarding Debts. The admission of Berry Creek, or any other party liable for the payment of the Secured Obligations, whether as maker, endorser, guarantor, surety or otherwise, in writing of any such party's inability to pay such party's debts as they become due. 7.10 CountV's Additional Rights. The County may, at its option, *and without any obligation, cure any Event of Default hereunder by Berry Creek within thirty (30) days of receipt of notice from Beneficiary, which notice Beneficiary agrees to provide upon each occurrence of an Event of Default. In the event Beneficiary elects to exercise its remedy of foreclosure pursuant to Section 8.7 hereunder, the County shall be entitled to notice of Beneficiary's intention to foreclose ("Foreclosure Notice"). The County shall be granted a period of ninety (90) days after receipt of a Foreclosure Notice to provide Beneficiary written notice of its N irrevocable election ("Notice of Election!) to pay the Beneficiary the entire outstanding principal amount of the Loan plus accrued and unpaid interest (at the non -default rate) together with all a reasonable costs and expenses incurred by Beneficiary, including attorneys' fees and expenses N o and costs incurred by Beneficiary in preserving and protecting the Property. Said payment must G be made to Beneficiary not later than twenty (20) days after the date of the Notice of Election. CO a a Upon receipt of said payment Beneficiary shall assign all of its right title and interest in and to Nthe Note and the Security Documents, without recourse or warranty, to the County. ARTICLE 8 .� BENEFICIARY'S REMEDIES Immediately upon or any time after the occurrence of any Event of Default hereunder, :.r■ o Beneficiary may exercise any remedy available at law or in equity, including but not limited to those listed below and those listed .in the other Loan Documents, in such sequence or = ! combination as Beneficiary may determine in Beneficiary's sole discretion: H M j r ___ #822097 v5 22 8.1 Acceleration. Beneficiary may, without notice or demand, declare all of the Secured Obligations to be immediately due and payable in full. 8.2 Performance of Defaulted Obligations. Beneficiary may make any payment or perform any other obligation under the Loan Documents which Berry Creek has failed to make or perform, and Berry Creek hereby irrevocably appoints Beneficiary as the true and lawful attorney -in -fact for Berry Creek to make any such payment and perform any such obligation in the name of Berry Creek. All payments made and expenses (including attorneys' fees) incurred by Beneficiary in this. connection, together with interest thereon at the Default Rate from the date paid or incurred until repaid, will be part of the Secured Obligationsand will be immediately due and payable by Berry Creek to Beneficiary. In lieu of advancing Beneficiary's own funds for such purposes, Beneficiary may use any funds of Berry Creek which may be in Beneficiary's possession, including but not limited to insurance or condemnation proceeds and amounts deposited for taxes, insurance premiums, or other purposes. 8.3 Suecific Performance and Injunctive Relief. Notwithstanding the availability of will be entitled to obtain specific performance, mandatory or legal remedies, Beneficiary prohibitory injunctive relief, or other equitable relief requiring Berry Creek to cure or refrain from repeating any default. 8.4 Suit for Monetary Relief.. With or without accelerating the maturity of the Secured Obligations, Beneficiary may sue from time to time for any payment -due under -any of the Loan Documents, or for money damages resulting from Berry Creek's default under any of . the Loan Documents. 8.5 Possession of Property. Beneficiary may enter and take possession of the Property without seeking or obtaining the appointment of a receiver, may employ a managing agent for the Property, and may lease or rent all or any part of the Property, and may collect the rents, issues, and profits of the Property. Any revenues collected by Beneficiary under this ' m .. Section will be applied first toward payment of all expenses (including attorneys' fees) incurred P_ '' a by Beneficiary, together with interest thereon- at the Default Rate from the date incurred until N N 0 repaid, and the balance, if any, will be applied against the Secured Obligations. 0 m 8.6 Enforcement of Security Interests. Beneficiary may exercise all rights and a remedies set forth in ARTICLE 6 above, including all rights of a secured party under the j N Uniform Commercial Code. 8.7 Foreclosure. (a) Public Trustee. Beneficiary may foreclose this Deed of Trust, insofar as it encumbers the Property, by way of a trustee's sale pursuant to the provisions .of Title 38, --�' Article 38, Colorado Revised Statutes, as currently in effect, as amended, or in any other manner then permitted by law. If this Deed of Trust encumbers more than one parcel of Ireal estate, foreclosure may be by separate parcel or en masse, as Beneficiary may elect W in its sole discretion. Foreclosure through Trustee will be initiated by Beneficiary's filing H ' of its notice of election and demand for sale with Trustee. Upon the. filing of such notice L #822097 v5 23 of election and demand for sale, Trustee shall promptly comply with all notice and other requirements of the laws of Colorado then in force with respect to such sales, and shall give four weeks' public notice of the time and place of such sale by advertisement weekly in some newspaper of general circulation then published in the County or City and County in which the Property is located. (b) Judicial Foreclosure. The right to foreclose this Deed of Trust as a mortgage by appropriate proceedings in any court of competent jurisdiction is also hereby given. (c) Expenses of Trustee's Sale or Foreclosure. All fees, costs and expenses of any kind incurred by Beneficiary in connection with foreclosure of this Deed of Trust, including, without limitation, the costs of any appraisals of the Property obtained by Beneficiary, all costs of any receivership for the Property advanced by Beneficiary, and all attorneys' and consultants' fees incurred by Beneficiary, appraisers' fees, outlays for documentary and expert evidence, stenographers' charges, publication costs and costs (which may be estimates as to items to be expended after entry of ,the decree) of procuring all such abstracts of title, title searches and examination, title insurance policies and similar data and assurances with respect to title, as Trustee or Beneficiary may deem necessary either to prosecute such suit or to evidence to bidders at the sales that may be had pursuant to such proceedings the true conditions of the title to or the value of the Property, together with and including a reasonable compensation to Trustee, shall constitute a part of the Secured Obligations and may be included as part of the amount owing from Bevy Creek to Beneficiary at any foreclosure sale. (d) Proceeds of Trustee's or Foreclosure Sale. The proceeds of foreclosure sale of the Property shall be distributed and applied in the following order of priority: r - " first, on account of all costs and expenses incident to the foreclosure proceedings, i `='• including without limitation all such items as are mentioned in Section 8.7(c) hereof; g second, all other items which, under the terms hereof, constitute Secured Obligations w w ei I t'�NN additional to that evidenced by the Note, with interest on such items as herein provided; co third, to interest remaining unpaid upon the Note; fourth, to the principal remaining m unpaid upon the Note; and lastly, to Berry Creek and its successors or assigns, as their coaaa rights may appear. • �� N c4 (e) Insurance Uuon Foreclosure. In case of an insured loss after judicial ' foreclosure or Trustee's sale proceedings have been instituted, the proceeds of any -._ insurance policy or policies, if not applied to • rebuilding or restoring the buildings or improvements, shall be used to pay the amount due upon the Secured Obligations. In the event of judicial foreclosure or Trustee's sale, Beneficiary or Trustee is hereby authorized, without the consent of Grantors, to assign any and all insurance policies to the Z=I- purchaser at the sale, or to take such other steps as Beneficiary or Trustee may deem advisable to cause the interest of such purchaser to be protected by any of the said W insurance policies. N r N #822097 vs 24 (1) Na Conflict. Nothing in this Section dealing with foreclosure procedures or specifying particular actions to be taken by Beneficiary or by Trustee or any similar officer shall be deemed to contradict or add to the requirements and procedures now or hereafter specified by Colorado law, and any such inconsistency shall be resolved in favor of Colorado law applicable at the time of foreclosure. 8.8 Apnointment of Receiver. Upon or at any time after the occurrence of any Event of Default, Beneficiary shall at once become entitled to the possession, use and enjoyment of the Property and the rents; : issues and profits thereof, from the date of such occurrence and continuing during the pendency of any proceedings for sale by the public trustee or foreclosure proceedings, and the period of redemption, if any. Beneficiary shall be entitled to a receiver for the Property, and of the rents, issues and profits thereof, after any such default, including, without limitation, the time covered by any proceedings for sale by the public trustee or foreclosure proceedings and the period of redemption, if any. Beneficiary shall be entitled to such receiver as a matter of right, without regard to the solvency or insolvency of Berry Creek, or of the then owner of the Property, and without regard -to the value thereof, and such receiver may be appointed by any court of competent jurisdiction upon ex parte application, and without notice, notice being hereby expressly waived. Grantors waive any right to any hearing or notice of hearing prior to the appointment of a receiver. Such receiver and his agents shall be empowered (a) to take possession of the Property and any businesses conducted by Berry Creek or any other person (excluding the business of tenants- of Grantors) thereon and any business assets used in connection therewith and, if the receiver deems it appropriate, to operate the same, (b) to exclude Berry Creek and Berry Creek's agents, servants, and employees from the Property, (c) to collect the rents, issues, profits, and income therefrom, (d) to complete any construction which may be in progress, (e) to do such maintenance and make such repairs *and alterations as the receiver deems necessary, (fl to use all stores of materials, supplies, and maintenance equipment on the Property, (g) to pay. all taxes and assessments against the Property and all premiums for insurance thereon, (h) to pay all utility and other operating expenses, and all sums due under any prior or subsequent encumbrance, and (i) generally to do anything which Berry m N Creek could legally do if Berry Creek were in possession of the Property. All expenses incurred wo �, by the receiver or his agents shall constitute a part of the Secured Obligations. Any revenues 6� 2 m collected by the receiver shall be applied first to the expenses of the receivership, including N M o attorneys fees incurred by the receiver and by Beneficiary, together with interest thereon at the p Default Rate from the date incurred until repaid,. and the balance shall be applied toward the 00 Of m m Secured Obligations or in such other manner as the court may direct. Unless sooner terminated with the express consent of Beneficiary, any such receivership will continue until the Secured o Obligations have been discharged in full, or until title to the Property has passed after foreclosure �— sale and all applicable periods of redemption have expired. 8.9 Right to Take Possession. Upon or at any time after the occurrence of any Event of Default, Beneficiary may, at its option, without notice, and whether or not the indebtedness evidenced by the Note and secured hereby shall have been declared due and payable, either in person or by agent, with or without bringing any action or proceeding, or by a receiver to be i appointed by a court, (i) enter upon, take possession of, manage and operate the Property, or any part thereof (including, without limitation, making necessary repairs, alterations and s improvements to the Property); (ii) make, cancel, enforce or modify Leases; (iii) obtain and evict N ; •.a L 1 ' — L N r #922097 v5 25 tenants; (iv) fix or modify rents; (v) 'do any acts which Beneficiary deems reasonably proper to protect the security hereof; and (vi) either with or without taking possession of the Property, in its own name sue for or otherwise take any and all actions Beneficiary deems necessary or advisable to collect and receive such rents, issues and profits, including, without limitation, those past due and unpaid. In connection with the- foregoing, Beneficiary shall be entitled and empowered to employ attorneys and their staff, and management, rental or other agents in and about the Property and to effect the matters which the Beneficiary is empowered to do, and if Beneficiary shall itself effect such matters, Beneficiary shall be entitled to charge and receive reasonable management, rental and other fees therefor as may be customary in the area in which the Property is located; and the fees, charges, costs and expenses of Beneficiary or such persons shall be so much additional Secured Obligations. The entering upon and taking possession of the Property, the collection of such rents, issues and profits and the application thereof as aforesaid shall not cure or waive any default or waive, modify or affect notice of default under the Note or invalidate any act done pursuant to said notice. 8.10 Right to Make Repairs, Improvements. Should any part of the Property come into the possession of Beneficiary, whether before or after an Event of Default, Beneficiary may use, operate, and/or make repairs, alterations, additions and improvements .to the Property for the purpose of preserving it or its value. Berry Creek covenants to promptly reimburse and pay to Beneficiary, at the place where the Note is payable, or at such other place as may be designated by Beneficiary in writing, the amount of all reasonable expenses. (including the cost of any insurance, taxes, or other charges) incurred by Beneficiary in connection with its custody, preservation, use or operation of the Property, together with interest thereon from the date incurred by 'Beneficiary at the Default Rate, and all .such expenses, costs, taxes, interest, and other charges shall be a part of the Secured Obligations. It is agreed, however, that the risk of .accidental loss or damage to the Property is undertaken by Berry Creek and, except for Beneficiary's willful misconduct or gross negligence, Beneficiary shall have no liability whatsoever for decline in value of the Property, for failure to obtain or maintain insurance, or for failure to determine whether any insurance eve_ r in force is adequate as to amount or as to the risks insured. 8.11 Waivers. To the full extent that the covenants and waivers contained in this Section are permitted by law, but not otherwise, (a) Berry Creek hereby waives any and all rights under, and covenants and agrees that it will not at any time insist upon or plead or in any manner whatsoever claim or take advantage of, any stay, exemption, moratorium or extension law hereafter in effect or any law now or hereafter in effect providing for the .valuation or appraisement of the Property or any part thereof prior to any. sale or sales thereof and Berry Creek will not invoke, or utilize any such law or laws or otherwise hinder, delay or impede the execution of any right, power or remedy herein or otherwise granted or delegated to Trustee or Beneficiary, but will suffer and permit the execution of every such right, power and remedy as though no such law or laws have been made or enacted; and (b) Berry Creek hereby waives, and subordinates to the lien of this Deed of Trust, any rights that Berry Creek may have in or to the Property as a homestead exemption under existing law or under any similar law that may hereafter be enacted, such waiver and subordination to be effective in connection with either a trustee's or foreclosure sale under this Deed of Trust or Beneficiary's redemption of the Property #822097 %15 26 in the case of a trustee's or foreclosure sale to enforce an encumbrance prior in right to that of this Deed of Trust. ARTICLE 9 MISCELLANEOUS PROVISIONS 9.1 Effect of Extensions of Time and Amendments On Junior Liens and Others. If the payment of the Secured Obligations, or any part thereof, is extended or varied, or if any part of the security is released, all persons now or at any time hereafter liable therefor, or interested in the Property, shall be held to assent to such extension, variation or release, and their liability, and the lien, and all provisions hereof, shall continue in full force and effect, the right of recourse against all such persons following foreclosure of this Deed. of Trust being expressly reserved by Beneficiary, notwithstanding any such extension, variation or release. Any person, firm or corporation taking a junior mortgage, deed of trust or other lien upon the Property or any interest therein, shall take .that lien subject to the rights of Beneficiary herein to amend, modify and supplement the Loan Documents (including this Deed of Trust), and to extend the maturity of the Secured Obligations, in each and every case without obtaining the consent of the holder of such junior lien and without the lien of this Deed of Trust losing its priority over the rights of any such junior lien. 9.2 Joint and: Several Obligations. If Berry Creek is more than one person or entity, then all .persons or entities comprising Berry Creek are jointly and severally liable for all of the-. Secured Obligations. 9.3 Mortgagee in Possession. Nothing herein contained shall be construed as constituting Trustee or Beneficiary a mortgagee in possession. 9.4 Title in Grantor's Successors. If the ownership of the Property becomes vested in N a person or persons other than the County or Berry Creek, Trustee and Beneficiary may, without notice to Grantors, deal with such successor or successors in interest of Grantors with reference o m S to this Deed of Trust and the Secured Obligations in the same manner as with Grantors. Grantors N o will give immediate notice to Beneficiary of any conveyance, transfer or change of ownership of �`'` • • the Property, but nothing in this Section 9.4 contained shall varyor negate the provisions of Ire i W a m m Section 5.3 hereof. i N 9.5 Rights Cumulative. Each right, power and remedy of Beneficiary under this Deed 1 °C of Trust and the other Loan Documents is cumulative and in addition to every other right, power or remedy, existing or implied, given now or hereafter existing, at law or in equity, and each and every right, power and remedy set forth herein or otherwise so existing may be exercised from tune to time as often and in such order as may be deemed expedient by Beneficiary, and the exercise or the beginning of the exercise of one right, power or remedy shall not be a waiver of S i the right to exercise at the same time or thereafter any other right, power or remedy; and no delay or omission of Beneficiary in the exercise of any right, power or remedy accruing hereunder or c arising otherwise shall impair any such right, power or remedy, or be construed to be a waiver of W !� any default or acquiescence therein. A N .,y U. I I � L i N ' - #822097 v5 27 :m 18 + 9.6 Waiver. Beneficiary shall not be deemed to have waived any provision of this Deed of Trust or any Loan Document unless such waiver is in writing and is signed by .Beneficiary. Without limiting the generality of the foregoing, neither Beneficiary's acceptance of any payment with knowledge of a default by Berry Creek, nor any failure by Beneficiary to exercise any remedy following a default by Berry Creek shall be deemed a waiver of such default, and no waiver by Beneficiary of any particular default on the part of Berry Creek shall be deemed a waiver of any other default or of any similar default in the future. 9.7 No Third Party Beneficiaries. No person shall be.. a third party beneficiary of or be entitled to assert any rights in connection with any provision of any .of the Loan Documents. All provisions of the Loan Documents are intended solely for the benefit of Berry Creek and Beneficiary. 9.8 Preservation of Liability and Priority. Without affecting -the liability of Berry Creek or of any other person (except a person expressly released in writing) for payment and performance of all of the Secured Obligations, and without affecting the rights of.Beneficiary with respect to any security'not expressly released in writing, and without impairing in. any way the priority of this Deed of Trust over the interests of any person acquired or first evidenced by recording subsequent to the recording hereof, Beneficiary may, either before or after the maturity of the Note, and without notice or consent: (a) release any person liable for payment or performance of all or any part of the Secured Obligations; (b) make any agreement altering the terms of payment or performance of all or any of the Secured Obligations; (c) exercise or refrain from exercising, or waive, any right or remedy which Beneficiary may have under any of the Loan Documents; (d) accept additional security. of any kind for any of the Secured Obligations; or (e) release or otherwise deal - with any real or personal property securing the Secured Obligations. Any person acquiring or recording evidence of any interest of any nature in the Property shall be deemed, by acquiring such interest or recording any evidence thereof, to have agreed and consented to any and all such actions by Beneficiary. N 9.9 Successors and Assigns. This Deed of Trust and every covenant, agreement. and qr V4 a other provision hereof shall be binding upon the Grantors and their successors and assigns o eg a (including without limitation each and every subsequent record owner of the Property or any N o , other person having an interest therein), and shall inure to the benefit of Beneficiary and Trustee and their successors and assigns. Wherever herein Beneficiary is referred to, such reference shall awe ` be deemed to include the holder from time to time of the Note, whether so expressed or not; and a each subsequent holder of the Note shall have and enjoy all of the rights, privileges, powers, N options and benefits afforded Beneficiary hereby and hereunder, and may enforce all and every of the terms and provisions hereof, as fully and to the same extent and with the same effect as if such holder were herein by name specifically granted such rights, privileges, powers, options and benefits and were herein by name designated Beneficiary. 9.10 Provisions Severable/Meeality. The unenforceability or invalidity of any g ' provision or provisions hereof shall not render any other provision or provisions herein contained m unenforceable or invalid and in lieu of each such illegal, invalid or unenforceable provision there W ; shall be added automatically as a part of this Deed of Trust a provision as similar in terms to such illegal, invalid, or unenforceable provision as may be possible and be legal, valid, and LL L � #822097 0 28 49 .. qrW-6 . o VNa �C9N� IVA . �o to (n 00 N -LD enforceable. .If the- rights and liens created by this Deed of Trust shall be invalid or unenforceable -'as to any part of the Secured Obligations, then the unsecured portion of the Secured Obligations shall be completely paid prior to the payment of the remaining and secured portion of the Secured Obligations, and all payments made on the Secured Obligations shall be considered to have been paid on and applied first to the complete payment of the unsecured - portion of the Secured Obligations. . 9.11 Captions and Pronouns. The captions and headings of the various Sections of this Deed of Trust: are for convenience only, and are not to be construed as confirming or limiting in any way the scope or intent of the provisions hereof. Wherever the context requires or permits, the singular shall include the. plural, the plural shall include the singular and the masculine, feminine and neuter shall be freely interchangeable. 9.12 Addresses and Notices. Any notice required or permitted to be given to Grantors or Beneficiary pursuant to any provision of this Deed of Trust shall be in writing and shall be hand delivered, sent by a nationally recognized overnight courier service, or sent by registered or certified mail, return receipt requested, postage prepaid. If mailed, notice shall be deemed received two days after having -been deposited *in the United States Mail, addressed as. follows: (a) If to Berry Creek: Bevy Creek Limited Liability Co. c/o ASW Realty Partners, LLC 21820 Burbank Blvd. Suite 120 Woodland Hills, CA 91367 Attention: Messrs. Mark R. Ross, Andrew Gerber, and Ken Beck (b) With a copy to: Arter & Hadden LLP 725 South Figueroa Street Suite 3400 Los Angeles, California 90017-5418 Attention: Douglas J. Workman #822o97 vs 29 v i is ON 4V,1 � COamm i IN t N IM -Ii T �d W � L LL. . L to (c) If to the County: Board of County Commissioners P.O. Box 850 500 Broadway Eagle, Colorado 81631 (d) With a copy to: Eagle County Attorney P.O. Box 850 500 Broadway Eagle, Colorado 81631 (e) If to Beneficiary: Wells Fargo Bank West, N.A. MAC C7301-043 1740 Broadway Denver, Colorado 80274-8663 Attention: John Batug (fl With a copy to: Hoh a Roberts & Owen, LLP 1700 Lincoln Street Suite 4100 Denver, Colorado 80203 Attention: Thomas L. DeVine Either Grantors or Beneficiary may change its address for the giving of notice hereunder by giving notice of such change of address in accordance herewith. 9.13 Further Assurances. Grantors will do, execute, acknowledge and deliver all and every further acts, deeds, conveyances, transfers and assurances necessary or proper, in the sole judgment of Beneficiary, for the better assuring, conveying, mortgaging, assigning- and confinning unto Beneficiary or Trustee all property encumbered hereby or property intended so to be, whether now owned by Grantors or hereafter acquired. 9.14 Recording. Grantors will cause this Deed of Trust and all other documents securing the Secured Obligations at all times to be properly filed and/or recorded at Grantors' own expense and in such manner and in such places as may be required by law in order to fully preserve and protect the rights of Trustee and Beneficiary and will furnish to Beneficiary promptly after the execution and delivery of this Deed of Trust, a title insurance policy, insuring that this Deed of Trust has been properly recorded or filed for record so as to make effective of record the lien intended to be created hereby. #822097 vs 30 Rr d� ° NO CV) N CO �9 En CC) aaCO r: � a _ N O.' r� o I�r Of R � W � L H L L N 9.15 Governing. This Deed of Trust shall be governed by and construed under the laws of the State of Colorado. 9.16 Time of Essence. Time is of the essence of this Deed of Trust and all other Loan Documents and all of the terms, conditions and provisions hereof and thereof. 9.17 Jurisdiction and Venue. At the sole option of Beneficiary, any action concerning this Deed of Trust or any .other Loan Document may be brought in the Colorado District Court for the County in which Beneficiary is located or in the United States District Court for the District of Colorado, and Grantors consent to venue and personal jurisdiction with respect thereto. 9.18 Waiver of of J�Trial. Grantors hereby waives any right to jury trial of any claim, cross -claim or counter -claim relating to or arising out of or in connection with this Deed of Trust and/or any of the other Loan Documents. 9.19 Waiver of Homestead and Other Exemptions. To the extent permitted by law, Grantor hereby waives all rights to any homestead or other exemption to which Grantors would otherwise be entitled under any present or future constitutional, statutory, or other provision of applicable state or federal law. 9.20 Construction Deed of Trust. This Deed of Trust. secures indebtedness for construction purposes as described in Section 4-9-334, Colorado Revised Statutes (2001), as amended from time to time. 9.21 Partial Releases. Grantors shall be entitled to partial releases of this Deed of Trust in accordance with the terms of the Loan Agreement. [Remainder of This Page Intentionally Left Blank] #822097 0 31 EXECUTED as of the date first set forth above. GRANTORS: EAGLE COUNTY, COLORADO, a body corporate and politic organized and existing under the -laws of the State of Colorado, by and through its BOARD OjfCOUNTY l:V1V11v da 0�� G w y By: * * N e: Title: STATE OF COLORADO ) ss. COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me thisy of- 2002, by .. g g g0 G-; L of the Board of County Commissioners for Eagle Count_;` Colorado, a body corporate and politic organized and existing under the laws of the State of Colorado. • Witness my hand and official seal. My commission expires: 6ai,ziz00�. #822097 v5 BERRY CREEK LIMITED LIABILITY CO., a Colorado • limited liability company By: ASW Realty Partners, LLC, a New Mexico limited liability compare , Manager By: Mark R� Ross, Manager STATE OF CO�V POrn 1 Ii ) ) ss. COUNTY OF 5 pb n ) The foregoing instrument was acknowledged before me thisQ tay of 2002, by Mark R. Ross, manager of ASW Realty Partners, LLC, a New Mexico limited liability company, manager of Berry Creek Limited Liability Co., a Colorado limited liability company. �r SONG qe,qr. coo04 c� i Cn ODam0 f rn r � , W L. , - N �� •tea LL I - L ` t [ Witness my hand and official seal. My commission expires: 7 r -. D.I oQ 3 Notary Public �.r7� •. . _tv- #822097 v5 1 IS (Attached to and forming a part of the Deed of Trust to Public Trustee, Security Agreement, Financing Statement Assignment of Rents and Leases, and Fixture Filing, dated July 2002 to the Public Trustee of Eagle County,. Colorado, from Eagle- County, Colorado and Berry CreekLimited Liability Co., for the benefit of Wells Fargo Bank West, National Association) LEGAL DESCRIPTION OF THE LAND TRACT D. BERRY CREEK/MILLER RANCH PLANNED UNIT DEVELOPMENT, ACCORDING TO THE PLAT RECORDED JUKE. 259 20023, AT RECEPTION NO.799649) TOGETHER WITH GRADING AND DRAINAGE EASEMENT SITUATED ON TRACT C. BERRY CREEK/MILLER RANCH PLANNED UNIT DEVELOPMENT, FOR THE PURPOSES OF CREATING AND MAINTAINING A DRAINAGE DETENTION POND FOR TRACT D AS SHOWN ON PLAT RECORDED JUNE 252 2002 AT RECEPTION NO.7996492 COUNTY OF EAGLE, = -- �- - STATE OF COLORADO. N - 40 ON M Nco to ODaao N 1 01 I i � W L • ! N #822097 vs A-1 'A 1 1:0.114 00113 (Attached to and forming a part of the Deed of Trust to Public Trustee, Security Agreement, Financing Statement; signment of Rents and Leases, and Fixture Filing, dated Jul 002 to the Public Trustee of Eagle County, Colorado; from agle County, Colorado, and Berry Creek Limited Liability Co. for the- benefit of Wells Fargo Bank West, National Association) PERMITTED ENCUMBRANCES 1. ANY LIEN, OR RIGHT TO A LIEN, FOR SERVICES, LABOR OR -MATERIAL HERETOFORE FURNISHED, IMPOSED BY LAW AND NOT SHOWN BY THE PUBLIC RECORDS. - 2. TAXES AND ASSESSMENTS FOR THE YEAR 2002 AND SUBSEQUENT YEARS, A LIEN NOT YET DUE AND PAYABLE. 3. RIGHT OF THE PROPRIETOR- OF A VEIN OR LODE TO EXTRACT AND REMOVE HIS ORE .THEREFROM SHOULD THE SAME BE FOUND TO. PENETRATE OR INTERSECT THE PREMISES; AS RESERVED -IN UNITED STATES PATENT RECORDED IN BOOK 175 AT PAGE 221. 4. TERMS, CONDITIONS AND PROVISIONS OF PLANNED UNIT DEVELOPMENT RECORDED MARCH 22, 2002 AT RECEPTION NO.789801. J 5. RIGHT OF WAY EASEMENT AS GRANTED TO KN ENERGY, INC. IN INSTRUMENT RECORDED APRIL 30,1999 UNDER RECEPTION NO.694363 AND -AS DESCRIBED ON THE DOCUMENT RECORDED DECEMBER 27, 1999 AT RECEPTION NO.718785. 6. TERMS, CONDITIONS AND PROVISIONS OF MILLER RANCH -BERRY CREEK INTERGOVERNMENTAL AGREEMENT RECORDED JUKE 035 1999 AT RECEPTION NO.698432. ` 7. TERMS, CONDITIONS AND PROVISIONS OF STIPULATION AS TO OWNERSHIP OF THE HOWARD DITCH AND HOWARD DITCH FIRST ENLARGEMENT RECORDED OCTOBER 11, 1996 IN BOOK 708 AT PAGE 213. 8. RIGHT OF WAY EASEMENT AS GRANTED TO HOLY CROSS ELECTRIC ASSOCIATION, INC. IN INSTRUMENT RECORDED MAY 1 % 1995 IN BOOK 667 AT PAGE 636. #822097 v5 11 I N p m m M� � ODaam i �m L 40 U. � I - L N { 9. RIGHT OF WAY EASEMENT AS GRANTED TO UPPER EAGLE REGIONAL WATER AUTHORITY IN INSTRUMENT RECORDED MAY 312 2000, UNDER RECEPTION NO.731114. 10. RIGHT OF WAY EASEMENT AS GRANTED TO EAGLE RIVER WATER AND SANITATION DISTRICT IN INSTRUMENT RECORDED MAY 312 2000, UNDER RECEPTION NO.731115. 11. RIGHT OF WAY EASEMENT AS GRANTED TO KN ENERGY, INC., A. KANSAS CORPORATION IN INSTRUMENT RECORDED JULY 52 2001, UNDER RECEPTION NO.761419. 12. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE PLAT OF BERRY CREEK/MILLER RANCH PLANNED UNIT DEVELOPMENT RECORDED JUKE 25, 2002 AT RECEPTION NO. .799649. - 13. TERMS, CONDITIONS ANDIPROVISIONS OF HOWARD DITCH EASEMENT AGREEMENT RECORDED JUNE 20, 2002 AT RECEPTION NO.799277. 14. GRAVEL ROAD TRAVERSING SUBJECT PROPERTY AS SHOWN ON THE SURVEY PREPARED BY PEAK LAND SURVEYING, INC., CERTIEFIED AUGUST 14, 20022 JOB NO. 1158. 15. BIKE PATH NOT WITHIN BIKE PATH EASEMENT AS SHOWN ON THE SURVEY PREPARED BY PEAK LAND SURVEYING, IN., CERTIFIED AUGUST 142 20022 JOB NO., 1158. 16. FLOW LINE. OF IRRIGATION DITCH TRAVERSING SUBJECT PROPERTY AS SHOWN ON SURVEY PREPARED BY PEAK LAND SURVEYING, INC.., CERTIFIED AUGUST 14, 20023, JOB NO. 1158. 17. DRAINAGE DITCH AS SHOWN ON SURVEY PREPARED BY PEAK LAND SURVEYING, INC., CERTIFIED AUGUST 14, 2002, JOB NO. 1158. #822097 v5 ml {� •Ap act*.$ovk copies to: j"` cb-ounting