HomeMy WebLinkAbout4.0 SLC-Laurence Deed of Trust■iiiWrit P iirVirl'iMitIVIr4V.MIN'r, �wICI11111
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This Instrument Prepared by
and after Recording Return to:
DLA Piper LLP (US)
203 North LaSalle Street
Suite 1900
Chicago, Illinois 60601
Attn: Alison M. Mitchell, Esq.
DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY
AGREEMENT, FIXTURE FILING AND FINANCING STATEMENT
THIS DEED OF TRUST, ASSIGNMENT OF LEASES AND RENTS, SECURITY
AGREEMENT, FIXTURE FILING AND FINANCING STATEMENT ("Deed of Trust") is
made as of the 16th day of December, 2009 by SLC—LAURENCE, LLC, a Delaware limited
liability company, whose mailing address is c/o Snowmass Land Company, LLC, 1849 Green
Bay Road, 4'n Floor, Highland Park, Illinois 60035, Attention: Stephen Perlmutter ("Trustor"),
to the Public Trustee for the County of Garfield, Colorado ("Trustee"), for the benefit of THE
PRIVATEBANK AND TRUST COMPANY, its successors and assigns whose address is 120
South LaSalle, Chicago, Illinois 60603, Attention: Jake Noble ("Beneficiary").
RECITALS:
A. Pursuant to the terms and conditions contained in that certain Revolving Loan
Agreement dated as of even date herewith executed by and among the Trustor, Snowmass Land
Company, LLC, a Delaware limited liability company ("Snowmass") and the Beneficiary (as
amended from time to time, the "Loan Agreement"), the Beneficiary has agreed to loan to the
Trustor and Snowmass the principal amount of One Million Nine Hundred Thousand and 00/100
Dollars (S1,900,000.00) (the "Loan"). The Loan shall be evidenced by that certain Revolving
Credit Promissory Note of even date herewith (as amended, restated or replaced from time to
time, the "Note"), executed by the Trustor and Snowmass and made payable to the order of the
Beneficiary in the principal amount of the Loan and due on January 1, 2012, subject to extension
to January 1, 2013, pursuant to the terms of the Loan Agreement (the "Maturity Date"), and
except as may be accelerated pursuant to the terms hereof, of the Note or of any other document
or instrument now or hereafter given to evidence or secure the payment of the Note or delivered
to induce the Beneficiary to disburse the proceeds of the Loan (the Note and the Loan
Agreement, together with such other documents, as amended, restated or replaced from time to
time, being collectively referred to herein as the "Loan Documents").
B. A condition precedent to the Beneficiary's extension of the Loan to the Trustor
and Snowmass is the execution and delivery by the Trustor of this Deed of Trust.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the Trustor agrees as follows:
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Trustor, in consideration of the indebtedness herein recited and the trust herein created,
hereby grants, bargains, sells, warrants and conveys unto Trustee, IN TRUST, WITH POWER
OF SALE, for the use and benefit of Beneficiary, all of Trustor's estate, right, title and interest,
now owned or hereafter acquired, including any reversion or remainder interest, in and to the
following property (referred to collectively herein as "Premises"), all of which property, rights
and interests are hereby pledged primarily and on a parity with the Real Estate (as defined
below) and not secondarily:
THE REAL ESTATE located in the State of Colorado and legally described on
Exhibit A attached hereto and made a part hereof, including all heretofore or hereafter vacated
alleys and streets abutting the property, and all easements, rights, appurtenances, tenements,
hereditaments, rents, royalties, mineral, oil and gas rights and profits, water, water rights, and
water stock appurtenant to the property ("Real Estate");
TOGETHER WITH all improvements of every nature whatsoever now or hereafter
situated on the Real Estate, and all fixtures and personal property of every nature whatsoever
now or hereafter owned by Trustor and on, or used in connection with the Real Estate or the
improvements thereon, or in connection with any construction thereon, including all extensions,
additions, improvements, betterments, renewals, substitutions and replacements to any of the
foregoing and all of the right, title and interest of Trustor in and to any such personal property or
fixtures together with the benefit of any deposits or payments now or hereafter made on such
personal property or fixtures by Trustor or on its behalf (the "Improvements");
TOGETHER WITH all easements, rights of way, gores of real estate, streets, ways,
alleys, passages, sewer rights, waters, water courses, water rights and powers, and all estates,
rights, titles, interests, privileges, liberties, tenements, hereditaments and appurtenances
whatsoever, in any way now or hereafter belonging, relating or appertaining to the Real Estate,
and the reversions, remainders, rents, issues and profits thereof, and all the estate, right, title,
interest, property, possession, claim and demand whatsoever, at law as well as in equity, of
Trustor of, in and to the same, for so long and during all such times as Trustor may be entitled
thereto;
TOGETHER WITH all rents, revenues, issues, profits, proceeds, income, royalties,
"accounts," "accounts receivable" including "health -care -insurance receivables," escrows,
letter -of -credit rights (each as defined in the Code hereinafter defined), security deposits,
impounds, reserves, tax refunds and other rights to monies from the Premises and/or the
businesses and operations conducted by Trustor thereon, to be applied against the Indebtedness
(hereinafter defined); provided, however, that Trustor, so long as no Event of Default (as
hereinafter defned) has occurred hereunder, may collect rent as it becomes due, but not more
than one (1) month in advance thereof;
TOGETHER WITH all interest of Trustor in all leases now or hereafter on the
Premises, whether written or oral ("Leases"), together with all security therefor and all monies
payable thereunder, subject, however, to the conditional permission hereinabove given to Trustor
to collect the rentals under any such Lease;
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TOGETHER WITH all fixtures and articles of personal property now or hereafter
owned by Trustor and forming a part of or used in connection with the Real Estate or the
Improvements, including, but without limitation, any and all air conditioners, antennae,
appliances, apparatus, awnings, basins, bathtubs, bidets, boilers, bookcases, cabinets, carpets,
coolers, curtains, dehumidifiers, disposals, doors, drapes, dryers, ducts, dynamos, elevators,
engines, equipment, escalators, exercise equipment, fans, fittings, floor coverings, furnaces,
furnishings, furniture, hardware, heaters, humidifiers, incinerators, lighting, machinery, motors,
ovens, pipes, plumbing, pumps, radiators, ranges, recreational facilities, refrigerators, screens,
security systems, shades, shelving, sinks, sprinklers, stokers, stoves, toilets, ventilators, wall
coverings, washers, windows, window coverings, wiring, and all renewals or replacements
thereof or articles in substitution therefor, whether or not the same are or shall be attached to the
Real Estate or the Improvements in any manner; it being mutually agreed that all of the aforesaid
property owned by Trustor and placed on the Real Estate or the Improvements, so far as
permitted by law, shall be deemed to be fixtures, a part of the realty, and security for the
Indebtedness (as hereinafter defined); notwithstanding the agreement hereinabove expressed that
certain articles of property form a part of the realty covered by this Deed of Trust and be
appropriated to its use and deemed to be realty, to the extent that such agreement and declaration
may not be effective and that any of said articles may constitute goods (as said term is used in
the Uniform Commercial Code in effect from time to time in the state of Colorado) (the "Code"),
this instrument shall constitute a security agreement, creating a security interest in such goods, as
collateral, in Trustee for the benefit of Beneficiary, as a secured party, and Trustor, as Debtor, all
in accordance with the Code; and
TOGETHER WITH all of Trustor's interests in "general intangibles" including
"payment intangibles" and "software" (each as defined in the Code) now owned or hereafter
acquired and related to the Premises, including, without limitation, all of Trustor's right, title and
interest in and to: (i) all agreements, licenses, permits and contracts to which Trustor is or may
become a party and which relate to the Premises; (ii) all obligations and indebtedness owed to
Trustor thereunder; (iii) all intellectual property related to the Premises, except for the name
"Snowmass Land Company" or any variation thereof; and (iv) all choses in action and causes
of action relating to the Premises;
TOGETHER WITH all of Trustor's accounts now owned or hereafter created or
acquired as relate to the Premises, including, without limitation, all of the following now owned
or hereafter created or acquired by Trustor: (i) accounts, contract rights, health -care -insurance
receivables, book debts, notes, drafts, and other obligations or indebtedness owing to the Trustor
arising from the sale, lease or exchange of goods or other property and/or the performance of
services; (ii) the Trustor's rights in, to and under all purchase orders for goods, services or other
property; (iii) the Trustor's rights to any goods, services or other property represented by any of
the foregoing; (iv) monies due to become due to the Trustor under all contracts for the sale, lease
or exchange of goods or other property and/or the performance of services including the right to
payment of any interest or finance charges in respect thereto (whether or not yet earned by
performance on the part of the Trustor); (v) "securities", "investment property," "financial
assets," and "securities entitlements" (each as defined in the Code), and (vi) proceeds of any of
the foregoing and all collateral security and guaranties of any kind given by any person or entity
with respect to any of the foregoing; and all warranties, guarantees, permits and licenses in favor
of Trustor with respect to the Premises;
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TOGETHER WITH all proceeds of the foregoing, including, without limitation, all
judgments, awards of damages and settlements hereafter made resulting from condemnation
proceeds or the taking of the Premises or any portion thereof under the power of eminent
domain, any proceeds of any policies of insurance, maintained with respect to the Premises or
proceeds of any sale, option or contract to sell the Premises or any portion thereof; and
TO HAVE AND TO HOLD the Premises, unto Trustee for the benefit of Beneficiary,
its successors and assigns, forever, for the purposes and upon the uses herein set forth together
with all right to possession of the Premises after the occurrence of any Event of Default; Trustor
hereby RELEASING AND WAIVING all rights under and by virtue of the homestead
exemption laws of the State of Colorado.
FOR THE PURPOSE OF SECURING: (i) the payment of the Loan and all interest,
late charges, LIBOR breakage charges (including any Make Whole Costs described in the Note)
prepayment premium (if any), exit fee, interest rate swap or hedge expenses (if any),
reimbursement obligations, fees and expenses for letters of credit issued by Beneficiary for the
benefit of Trustor or Snowmass, if any, and other indebtedness evidenced by or owing under the
Note, any of the other Loan Documents, any interest rate swap or hedge agreement now or
hereafter entered into between Trustor and Beneficiary and/or Snowmass and any application for
letters of credit and master letter of credit agreement, together with any extensions,
modifications, renewals or refinancings of any of the foregoing; (ii) the obligations and liabilities
of the Trustor and/or Snowmass to the Beneficiary under and pursuant to any interest rate,
currency or commodity swap agreement, cap agreement or collar agreement, executed by and
between the Trustor and/or Snowmass and the Beneficiary from time to time (collectively, the
"Interest Rate Agreements"), (iii) the performance and observance of the covenants,
conditions, agreements, representations, warranties and other liabilities and obligations of
Trustor, Snowmass or any other obligor to or benefiting Beneficiary which are evidenced or
secured by or otherwise provided in the Note, this Deed of Trust or any of the other Loan
Documents; and (iv) the reimbursement to Beneficiary of any and all sums incurred, expended or
advanced by Beneficiary pursuant to any term or provision of or constituting additional
indebtedness under or secured by this Deed of Trust, any of the other Loan Documents, any
interest rate swap or hedge agreement or any application for letters of credit and master letter of
credit agreement, with interest thereon as provided herein or therein (collectively,
"Indebtedness").
TO HAVE AND TO HOLD the above granted and described Premises unto Trustee for
the use and benefit of Beneficiary, its successors and assigns, IN TRUST WITH POWTR OF
SALE, and Trustor does hereby bind itself, and its successors and assigns, to WARRANT AND
DEFEND title to the Premises, forever subject to the Permitted Exceptions;
PROVIDED, HOWEVER, these presents are upon the express condition that, if Trustor
and/or Snowmass shall pay to Beneficiary the Indebtedness at the time and in the manner
provided in this Deed of Trust and shall abide by and comply with each and every covenant and
condition set forth herein and in the other Loan Documents in a timely manner, these presents
and the estate hereby granted shall cease, terminate and be void;
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IT IS FURTHER UNDERSTOOD AND AGREED THAT:
1. Title. Trustor represents, warrants and covenants that (a) Trustor is the holder of
the fee simple title to the Premises referred to on Exhibit A, free and clear of all liens and
encumbrances, except the Permitted Exceptions (as defined in the Loan Agreement); and
(b) Trustor has legal power and authority to grant, bargain, sell, and convey title to the Premises.
Trustor will warrant and forever defend unto Trustee and unto Beneficiary the title to the
Premises against all lawful claims and demands of all persons whomsoever claiming through
Trustor, subject only to the Permitted Exceptions.
2. Maintenance, Repair, Restoration, Prior Liens, Parkin. Trustor covenants
that, so long as any portion of the Indebtedness remains unpaid, Trustor and/or Snowmass will:
(a) promptly repair, restore or rebuild any Improvements now or hereafter on
the Premises which may become damaged or be destroyed to a condition substantially
similar to the condition immediately prior to such damage or destruction, to the extent
insurance or condemnation proceeds therefor are made available to Trustor;
(b) keep the Premises in good condition and repair (ordinary wear and tear
excepted), without waste, and free from mechanics', materialmen's or like liens or claims
or other liens or claims for lien (subject to Trustor's right to contest liens as permitted by
the terms of Paragraph 27 hereof):
(c) pay when due the Indebtedness in accordance with the terms of the Note
and the other Loan Documents and duly perform and observe all of the terms, covenants
and conditions to be observed and performed by Trustor under the Note, this Deed of
Trust and the other Loan Documents:
(d) pay when due any indebtedness which may be secured by a permitted lien
or charge on the Premises on a parity with, superior to or inferior to the Lien hereof, and
upon request exhibit satisfactory evidence of the discharge of such lien to the Beneficiary
(subject to Trustor's right to contest liens as permitted by the terms of Paragraph 27
hereof);
(e) complete within a reasonable time any Improvements now or at any time
in the process of erection upon the Premises:
(f) comply with all requirements of law, municipal ordinances or restrictions
and covenants of record with respect to the Premises and the use thereof;
(g) obtain and maintain in full force and effect. and abide by and satisfy the
material terms and conditions of, all material permits, licenses, registrations and other
authorizations with or granted by any governmental authorities that may be required from
time to time with respect to the performance of its obligations under this Deed of Trust;
(h) make no material alterations in the Premises or demolish any portion of
the Premises without Beneficiary's prior written consent, except as required by law or
municipal ordinance or contemplated by the Loan Documents;
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(i) suffer or permit no change in the use or general nature of the occupancy of
the Premises, without the Beneficiary's prior written consent, except as contemplated by
the Loan Documents;
(j) pay when due all operating costs of the Premises;
(k) not initiate or acquiesce in any zoning reclassification with respect to the
Premises, without Beneficiary's prior written consent;
(1) provide and thereafter maintain adequate parking areas within the
Premises as may be required by law, ordinance or regulation (whichever may be greater),
together with any sidewalks, aisles, streets, driveways and sidewalk cuts and sufficient
paved areas for ingress, egress and right-of-way to and from the adjacent public
thoroughfares necessary or desirable for the use thereof; and
(m) comply, and shall cause the Premises at all times to be operated in
compliance, with all federal, state, local and municipal environmental, health and safety
laws, statutes, ordinances, rules and regulations, including, without limitation, Trustor
shall (i) ensure, and cause each of its subsidiaries to ensure, that no person who owns
twenty percent (20.00%) or more of the equity interests in the Trustor, or otherwise
controls the Trustor or any of its subsidiaries is or shall be listed on the Specially
Designated Nationals and Blocked Person List or other similar lists maintained by the
Office of Foreign Assets Control ("OFAC"), the Department of the Treasury or included
in any Executive Orders, (ii) not use or permit the use of the proceeds of the Loan to
violate any of the foreign asset control regulations of OFAC or any enabling statute or
Executive Order relating thereto, and (iii) comply, and cause each of its subsidiaries to
comply, with all applicable Bank Secrecy Act ("BSA") laws and regulations, as amended.
3. Payment of Taxes and Assessments. Trustor will pay when due and before any
penalty attaches, all general and special taxes, assessments, water charges, sewer charges, and
other fees, taxes, charges and assessments of every kind and nature whatsoever (all herein
generally called "Taxes"), whether or not assessed against Trustor, if applicable to the Premises
or any interest therein, or the Indebtedness, or any obligation or agreement secured hereby,
subject to Trustor's right to contest the same, as provided by the terms hereof and Trustor will,
upon written request, furnish to the Beneficiary duplicate receipts therefor within ten (10) days
after Beneficiary's request. If any special assessment is permitted by applicable law to be paid in
installments. Trustor shall have the right to pay such assessments in installments, so long as all
such installments are paid prior to the date when due.
4. Tax Deposits. At Beneficiary's option after the occurrence of an Event of Default
and provided that any tax reserve held by Beneficiary shall have been depleted, Trustor shall
deposit with Beneficiary, on the first day of each month until the Indebtedness is fully paid, a
sum equal to one -twelfth (1/12th) of the most recent ascertainable annual Taxes on the Premises.
If requested by Beneficiary, Trustor shall also deposit with Beneficiary an amount of money
which, together with the aggregate of the monthly deposits to be made pursuant to the preceding
sentence as of one month prior to the date on which the next installment of annual Taxes for the
current calendar year become due, shall be sufficient to pay in full such installment of annual
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Taxes, as estimated by Beneficiary. Such deposits are to be held without any allowance of
interest and are to be used for the payment of Taxes next due and payable when they become
due. So long as no Event of Default shall exist, Beneficiary shall, at its option, pay such Taxes
when the same become due and payable (upon submission of appropriate bills therefor from
Trustor) or shall release sufficient funds to Trustor for the payment thereof. If the funds so
deposited are insufficient to pay any such Taxes for any year (or installments thereof, as
applicable) when the same shall become due and payable, Trustor shall, within ten (10) days
after receipt of written demand therefor, deposit additional funds as may be necessary to pay
such Taxes in full. If the funds so deposited exceed the amount required to pay such Taxes for
any year, the excess shall be applied toward subsequent deposits. Said deposits need not be kept
separate and apart from any other funds of Beneficiary. Beneficiary, in making any payment
hereby authorized relating to Taxes, may do so according to any bill, statement or estimate
procured from the appropriate public office without inquiry into the accuracy of such bill,
statement or estimate or into the validity of any tax, assessment, sale, forfeiture, tax lien or title
or claim thereof.
5. Beneficiary's Interest In and Use of Deposits. Upon an Event of Default,
Beneficiary may, at its option, apply any monies at the time on deposit pursuant to Paragraph 4
hereof to cure an Event of Default or to pay any of the Indebtedness in such order and manner as
Beneficiary may elect. If such deposits are used to cure an Event of Default or pay any of the
Indebtedness, Trustor shall immediately, upon demand by Beneficiary, deposit with Beneficiary
an amount equal to the amount expended by Trustor from the deposits. When the Indebtedness
has been fully paid, any remaining deposits shall be returned to Trustor. Such deposits are
hereby pledged as additional security for the Indebtedness and shall not be subject to the
direction or control of Trustor. Beneficiary shall not be liable for any failure to apply to the
payment of Taxes any amount so deposited unless Trustor, prior to an Event of Default, shall
have requested Beneficiary in writing to make application of such funds to the payment of such
amounts, accompanied by the bills for such Taxes. Beneficiary shall not be liable for any act or
omission taken in good faith or pursuant to the instruction of any party.
6. Insurance.
(a) Trustor shall at all times keep all buildings, improvements, fixtures and
articles of personal property now or hereafter owned by or leased by Trustor situated on
the Premises insured against loss or damage by fire and such other hazards as may
reasonably be required by Beneficiary, in accordance with the terms, coverages and
provisions described on Exhibit B attached hereto and made a part hereof, and such other
insurance as Beneficiary may from time to time reasonably require. Unless Trustor
provides Beneficiary evidence of the insurance coverages required hereunder,
Beneficiary may purchase insurance at Trustor's expense to cover Beneficiary's interest in
the Premises. The insurance may, but need not, protect Trustor's interest. The coverages
that Beneficiary purchases may not pay any claim that Trustor makes or any claim that is
made against Trustor in connection with the Premises. Trustor may later cancel any
insurance purchased by Beneficiary, but only after providing Beneficiary with evidence
that Trustor has obtained insurance as required by this Deed of Trust. If Beneficiary
purchases insurance for the Premises. Trustor will be responsible for the costs of such
insurance, including, without limitation, interest and any other charges which Beneficiary
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may impose in connection with the placement of the insurance, until the effective date of
the cancellation or expiration of the insurance. The costs of the insurance may be added
to the Indebtedness. The cost of the insurance may be more than the cost of insurance
Trustor may be able to obtain on its own.
(b) Trustor shall not take out separate insurance concurrent in form or
contributing in the event of loss with that required to be maintained hereunder unless
Beneficiary is included thereon as the loss payee or an additional insured as applicable,
under a standard mortgage clause acceptable to Beneficiary and such separate insurance
is otherwise acceptable to Beneficiary.
(c) In the event of loss, Trustor shall give prompt notice thereof to
Beneficiary. If such Loss (1) equals or exceeds $1,000,000.00 ("Threshold"), Beneficiary
shall have the sole and absolute right to make proof of loss; provided, however, that
Trustor shall have the right to participate in the settlement and adjust any insurance claim
related thereto so long as no Event of Default then exists; and (2) is less than
$1,000,000.00, then Trustor shall have the sole and absolute right to make proof of loss
and shall have the right to settle and adjust any insurance claim related thereto, so long as
Trustor settles or adjusts such claim in a prompt manner within a reasonable period of
time. If such loss exceeds the Threshold or if such loss is equal to or less than the
Threshold and the conditions set forth in clauses (i), (ii) and (iii) of the immediately
succeeding sentence are not satisfied, then Beneficiary, solely and directly shall receive
such payment for loss from each insurance company concerned. Beneficiary shall hold
sums delivered to it pursuant to this paragraph in interest bearing accounts invested in
such investments designated by Trustor from time to time offered by Beneficiary and
reasonably acceptable to Beneficiary. If and only if (i) such loss is equal to or less than
the Threshold, (ii) no Event of Default or event that with the passage of time, the giving
of notice or both would constitute an Event of Default then exists, and (iii) Beneficiary
reasonably determines that the work required to complete the repair or restoration of the
Premises necessitated by such loss can be completed no later than six (6) months prior to
the Maturity Date, then Beneficiary shall endorse to Trustor any such payment and
Trustor may collect such payment directly. Beneficiary shall have the right, at its option
and in its sole discretion, to apply any insurance proceeds received by Beneficiary
pursuant to the terms of this paragraph, after the payment of all of Beneficiary's expenses,
either (i) on account of the Indebtedness, irrespective of whether such principal balance is
then due and payable, whereupon Beneficiary may declare the whole of the balance of
Indebtedness plus any Make Whole Costs (as defined in the Note) to be due and payable,
or (ii) to the restoration or repair of the property damaged as provided in
subparagraph (d) below; provided, however, that Beneficiary hereby agrees to permit the
application of such proceeds to the restoration or repair of the damaged property, subject
to the provisions of subparagraph (d) below, if (i) the Premises can be rebuilt to
substantially the same condition and value that existed prior to the casualty;
(ii) Beneficiary has received satisfactory evidence that such restoration or repair shall be
completed no later than the date that is six (6) months prior to the Maturity Date, and
(iii) no Event of Default, or event that with the passage of time, the giving of notice or
both would constitute an Event of Default, then exists. If insurance proceeds are made
available to Trustor as herein provided, Trustor shall repair, restore or rebuild the
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damaged or destroyed portion of the Premises so that the condition and value of the
Premises are substantially the same as the condition and value of the Premises prior to
being damaged or destroyed. Any insurance proceeds applied on account of the unpaid
principal balance of the Note shall be subject to the Make Whole Costs. In the event of
foreclosure of this Deed of Trust, all right, title and interest of Trustor in and to any
insurance policies then in force shall pass to the purchaser at the foreclosure sale.
(d) If insurance proceeds are made available by Beneficiary to Trustor,
Trustor shall comply with the following conditions:
(i) Before commencing to repair, restore or rebuild following damage
to, or destruction of, all or a portion of the Premises, whether by fire or other
casualty, Trustor shall obtain from Beneficiary its reasonable approval of all site
and building plans and specifications pertaining to such repair, restoration or
rebuilding if the cost of the same shall exceed $100,000, which approval shall not
be unreasonably withheld, conditioned or delayed.
(ii) Prior to each payment or application of any insurance proceeds to
the repair or restoration of the improvements upon the Premises to the extent
permitted in subparagraph (c) above (which payment or application may be made,
at Beneficiary's option,. through an escrow, the terms and conditions of which are
satisfactory to Beneficiary and the cost of which is to be borne by Trustor),
Beneficiary shall be satisfied as to the following:
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(I) no Event of Default or any event which, with the passage of
time or giving of notice would constitute an Event of Default, has
occurred;
(2) either such Improvements have been fully restored, or the
expenditure of money as may be received from such insurance proceeds
will be sufficient to repair, restore or rebuild the Premises, free and clear
of all liens, claims and encumbrances, except the lien of this Deed of Trust
and the Permitted Exceptions, or, if such insurance proceeds shall be
insufficient to repair, restore and rebuild the Premises, Trustor has
deposited with Beneficiary such amount of money which, together with
the insurance proceeds shall be sufficient to restore, repair and rebuild the
Premises;
(3) prior to each disbursement of any such proceeds,
Beneficiary shall be furnished with a statement of Beneficiary's architect
(the cost of which shall be borne by Trustor), certifying the extent of the
repair and restoration completed to the date thereof, and that such repairs,
restoration, and rebuilding have been performed to date in conformity with
the plans and specifications approved by Beneficiary and with all statutes,
regulations or ordinances (including building and zoning ordinances)
affecting the Premises; and Beneficiary shall be famished with appropriate
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evidence of payment for labor or materials furnished to the Premises, and
total or partial lien waivers substantiating such payments; and
(4) the Premises shall be completed so that the condition and
value of the Premises are substantially the same as the condition and value
of the Premises prior to being damaged or destroyed.
(e) If Trustor shall fail to restore, repair or rebuild the Improvements within a
time deemed reasonably satisfactory by Beneficiary, then Beneficiary, at its option, may
(a) commence and perform all necessary acts to restore, repair or rebuild the said
Improvements for or on behalf of Trustor, and/or (b) declare an Event of Default. If
insurance proceeds shall exceed the amount necessary to complete the repair, restoration
or rebuilding of the Improvements, at Beneficiary's election, such excess shall be paid to
Trustor or applied on account of the Indebtedness irrespective of whether such
Indebtedness is then due and payable without payment of any premium or penalty.
7. Condemnation. If all or any part of the Premises are damaged, taken or
acquired, either temporarily or permanently, in any condemnation proceeding, or by exercise of
the right of eminent domain, the amount of any award or other payment for such taking or
damages made in consideration thereof, to the extent of the full amount of the remaining unpaid
Indebtedness, is hereby assigned to Trustee for the benefit of Beneficiary, who is empowered to
collect and receive the same and to give proper receipts therefor in the name of Trustor and the
same shall be paid forthwith to Beneficiary. Such award or monies shall be applied on account
of the indebtedness, irrespective of whether such Indebtedness. plus any Make Whole Costs, is
then due and payable and, at any time from and after the taking Beneficiary may declare the
whole of the balance of the Indebtedness to be due and payable. Notwithstanding the provisions
of this paragraph to the contrary, if any condemnation or taking of less than the entire Premises
occurs and provided that no Event of Default and no event or circumstance which with the
passage of time, the giving of notice or both would constitute an Event of Default then exists,
and if such partial condemnation, in the reasonable discretion of Beneficiary, has no material
adverse effect on the operation or value of the Premises, then the award or payment for such
taking or consideration for damages resulting therefrom may be collected and received by
Trustor.
8. Stamn Tax. If, by the laws of the United States of America, or of any state or
political subdivision having jurisdiction over Trustor, any tax is due or becomes due in respect of
the execution and delivery or recording of this Deed of Trust, the Note or any of the other Loan
Documents, Trustor shall pay such tax in the manner required by any such law. Trustor further
agrees to reimburse Beneficiary for any sums which Beneficiary may expend by reason of the
imposition of any such tax. Notwithstanding the foregoing, Trustor shall not be required to pay
any income or franchise taxes of Beneficiary.
9. Lease AssiEnment. Trustor acknowledges that, concurrently herewith, Trustor
has executed and delivered to Beneficiary, an Assignment of Rents and Leases ("Assignment")
pursuant to which Trustor has assigned to Beneficiary interests in the leases of the Premises and
the rents and income from the Premises, upon the terms and conditions thereof and hereof. All
of the provisions of the Assignment are hereby incorporated herein as if fully set forth at length
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in the text of this Deed of Trust. Trustor agrees to abide by all of the provisions of the
Assignment.
10. Effect of Extensions of Time and Other Chances. If the payment of the
Indebtedness or any part thereof is extended or varied, if any part of any security for the payment
of the Indebtedness is released, if the rate of interest charged under the Note is changed or if the
time for payment thereof is extended or varied, all persons now or at any time hereafter liable
therefor, or interested in the Premises or having an interest in Trustor, shall be held to assent to
such extension, variation, release or change and their liability and the lien and all of the
provisions hereof shall continue in full force, any right of recourse against all such persons being
expressly reserved by Beneficiary, notwithstanding such extension, variation, release or change.
11. Effect of Chances in Laws Recardinc Taxation. If any law is enacted after the
date hereof requiring (a) the deduction of any lien on the Premises from the value thereof for the
purpose of taxation or (b) the imposition upon Beneficiary of the payment of the whole or any
part of the Taxes, charges or liens herein required to be paid by Trustor, or (c) a change in the
method of taxation of mortgages, deeds of trust, or debts secured by mortgages or deeds of trust
or Beneficiary's interest in the Premises, or the manner of collection of taxes, so as to affect this
Deed of Trust or the Indebtedness or the holders thereof, then Trustor, upon demand by
Beneficiary, shall pay such Taxes or charges, or reimburse Beneficiary therefor; provided,
however, that Trustor shall not be deemed to be required to pay any income or franchise taxes of
Beneficiary. Notwithstanding the foregoing, if in the opinion of counsel for Beneficiary it is or
may be unlawful to require Trustor to make such payment or the making of such payment might
result in the imposition of interest beyond the maximum amount permitted by law, then
Beneficiary may declare all of the Indebtedness to be immediately due and payable within one
hundred eighty (180) days after notice to Trustor.
12. Beneficiary's Performance of Defaulted Acts and Expenses Incurred by
Beneficiary. If an Event of Default has occurred, Beneficiary may, but need not, make any
payment or perform any act herein required of Trustor in any form and manner deemed
expedient by Beneficiary required to protect, preserve or maintain the Premises, and may, but
need not, make full or partial payments of principal or interest on prior encumbrances, if any,
and purchase, discharge, compromise or settle any tax lien or other prior lien or title or claim
thereof, or redeem from any tax sale or forfeiture affecting the Premises or consent to any tax or
assessment or cure any default of Trustor in any lease of the Premises. All monies paid for any
of the purposes herein authorized and all expenses paid or incurred in connection therewith,
including reasonable attorneys' fees, and any other monies advanced by Beneficiary in regard to
any tax referred to in Paragraph 8 above or to protect the Premises or the lien hereof, shall be so
much additional Indebtedness, and shall become immediately due and payable by Trustor to
Beneficiary, upon demand, and with interest thereon accruing from the date of such demand until
paid at the Default Rate (as defined in the Note) then in effect. In addition to the foregoing, any
costs, expenses and fees, including reasonable attorneys' fees, incurred by Beneficiary in
connection with (a) sustaining the lien of this Deed of Trust or its priority, (b) protecting or
enforcing any of Beneficiary's rights hereunder, (c) recovering any Indebtedness, (d) any
litigation or proceedings affecting the Note, this Deed of Trust, any of the other Loan Documents
or the Premises, including without limitation, bankruptcy and probate proceedings, or
(e) preparing for the commencement, defense or participation in any threatened litigation or
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proceedings affecting the Note, this Deed of Trust, any of the other Loan Documents or the
Premises, shall be so much additional Indebtedness, and shall become immediately due and
payable by Trustor to Beneficiary, upon demand, and with interest thereon accruing from the
date of such demand until paid at the Default Rate. The interest accruing under this
Paragraph 12 shall be immediately due and payable by Trustor to Beneficiary, and shall be
additional Indebtedness evidenced by the Note and secured by this Deed of Trust. Beneficiary's
failure to act shall never be considered as a waiver of any right accruing to Beneficiary on
account of any Event of Default. Should any amount paid out or advanced by Beneficiary
hereunder, or pursuant to any agreement executed by Trustor in connection with the Loan, be
used directly or indirectly to pay off, discharge or satisfy, in whole or in part, any lien or
encumbrance upon the Premises or any part thereof then Beneficiary shall be subrogated to any
and all rights, equal or superior titles, liens and equities, owned or claimed by any owner or
holder of said outstanding liens, charges and indebtedness, regardless of whether said liens,
charges and indebtedness are acquired by assignment or have been released of record by the
holder thereof upon payment.
13. Security Agreement. Trustor and Beneficiary agree that this Deed of Trust shall
constitute a Security Agreement within the meaning of the Code with respect to (a) all sums at
any time on deposit for the benefit of Trustor or held by the Beneficiary (whether deposited by or
on behalf of Trustor or anyone else) pursuant to any of the provisions of this Deed of Trust or the
other Loan Documents, and (b) with respect to any personal property included in the granting
clauses of this Deed of Trust , which personal property of Trustor may not be deemed to be
affixed to the Premises or may not constitute a "fixture" (within the meaning the Code) (which
property is hereinafter referred to as "Personal Property"), and all replacements of, substitutions
for, additions to, and the proceeds thereof, and the "supporting obligations" (as defined in the
Code) (all of said Personal Property and the replacements, substitutions and additions thereto and
the proceeds thereof being sometimes hereinafter collectively referred to as "Collateral"), and
that a security interest in and to the Collateral is hereby granted to the Beneficiary, and the
Collateral and all of Trustor's right, title and interest therein are hereby assigned to Beneficiary,
all to secure payment of the Indebtedness. All of the provisions 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 Premises; and the following provisions of this Paragraph shall not limit the
applicability of any other provision of this Deed of Trust but shall be in addition thereto:
(a) Trustor (being the Debtor as that term is used in the Code) is and will be
the true and lawful owner of the Collateral and has rights in and the power to transfer the
Collateral, subject to no liens, charges or encumbrances other than the lien hereof, other
liens and encumbrances benefiting Beneficiary and no other party, and liens and
encumbrances, if any, expressly permitted by the other Loan Documents.
(b) The Collateral is to be used by Trustor solely for business purposes.
(c) The Collateral will be kept at the Real Estate and, except for Obsolete
Collateral (as hereinafter defined), will not be removed therefrom without the consent of
Beneficiary (being the Secured Party as that term is used in the Code). The Collateral
may be affixed to the Real Estate but will not be affixed to any other real estate.
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(d) The only persons having any interest in the Premises are Trustor, Trustee,
Beneficiary and holders of interests, if any, expressly permitted hereby.
(e) No Financing Statement (other than Financing Statements showing
Beneficiary as the sole secured party, or with respect to Liens or encumbrances, if any,
expressly permitted hereby) covering any of the Collateral or any proceeds thereof is on
file in any public office except pursuant hereto; and Trustor, at its own cost and expense,
upon demand, will furnish to Beneficiary such further information and will execute and
deliver to Beneficiary such financing statements and other documents in form satisfactory
to Beneficiary and will do all such acts as Beneficiary may request at any time or from
time to time or as may be necessary or appropriate to establish and maintain a perfected
security interest in the Collateral as security for the Indebtedness, subject to no other liens
or encumbrances, other than liens or encumbrances benefiting Beneficiary and no other
party and liens and encumbrances (if any) expressly permitted hereby; and Trustor will
pay the cost of 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 desirable. Trustor hereby irrevocably authorizes Beneficiary at any time, and from
time to time, to file in any jurisdiction any initial financing statements and amendments
thereto that (i) indicate the Collateral as all assets of Trustor (or words of similar effect),
regardless of whether any particular asset comprised in the Collateral falls within the
scope of Article 9 of the Uniform Commercial Code of the jurisdiction wherein such
financing statement or amendment is filed (including, without limitation, the Code), or as
being of an equal or lesser scope or within greater detail, and (ii) contain any other
information required by Section 5 of Article 9 of the Uniform Commercial Code of the
jurisdiction wherein such financing statement or amendment is filed regarding the
sufficiency or filing office acceptance of any financing statement or amendment,
including whether Trustor is an organization, the type of organization and any
organization identification number issued to Trustor, and in the case of a financing
statement filed as a fixture filing or indicating Collateral as as -extracted collateral or
timber to be cut, a sufficient description of real property to which the Collateral relates.
Trustor agrees to furnish any such information to Beneficiary promptly upon request.
Trustor further ratifies and affirms its authorization for any financing statements and/or
amendments thereto, executed and filed by or on behalf of Beneficiary in any jurisdiction
prior to the date of this Deed of Trust.
(f) Upon an Event of Default hereunder, 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, so far as Trustor can give authority therefor, with or without judicial process,
may enter (if this can be done without breach of the peace) upon any place 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 Trustor's right of redemption in satisfaction of Trustor's
obligations, as provided in the Code. Beneficiary may render the Collateral unusable
without removal and may dispose of the Collateral on the Premises. Beneficiary may
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require Trustor to assemble the Collateral and make it available to Beneficiary for its
possession at a place to be designated by Beneficiary which is reasonably convenient to
both parties. Beneficiary will give Trustor at least ten (10) days' notice of the time and
place of any public sale of the Collateral 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 United States mail or equivalent, postage
prepaid, to the address of Trustor hereinafter set forth at least ten (10) days before the
time of the sale or disposition. Beneficiary may buy at any public sale. Beneficiary may
buy at private sale if the Collateral is of a type customarily sold in a recognized market or
is of a type which is the subject of widely distributed standard price quotations. Any
such sale may be held in conjunction with any foreclosure sale of the Premises. If
Beneficiary so elects. the Premises and the Collateral may be sold as one lot. The net
proceeds realized upon any such disposition, after deduction for the expenses of retaking,
holding, preparing for sale. selling and the reasonable attorneys' fees and legal expenses
incurred by Beneficiary, shall be applied against the Indebtedness in such order or
manner as Beneficiary shall select. Beneficiary will account to Trustor for any surplus
realized on such disposition.
(g) The terms and provisions contained in this Paragraph 13, unless the
context otherwise requires. shall have the meanings and be construed as provided in the
Code.
(h) In accordance with Section 9-334 and 9-502 of the Code, this Deed of
Trust is intended to be a financing statement within the purview of the Code with respect
to the Collateral and the goods described herein, which goods are or may become fixtures
relating to the Premises. The addresses of Trustor (Debtor) and Beneficiary (Secured
Party) are hereinbelow set forth. This Deed of Trust is to be filed for recording in the
office of the Clerk and Recorder of the county or counties where the Premises are
located_
(i) To the extent permitted by applicable law, the security interest created
hereby is specifically intended to cover all Leases between Trustor or its agents as lessor,
and various tenants named therein, as lessee, including all extended terms and all
extensions and renewals of the terms thereof, as well as any amendments to or
replacement of said Leases, together with all of the right, title and interest of Trustor, as
lessor thereunder.
�I) Trustor represents and warrants that:
(i) Trustor is the record owner of the Premises;
(ii) Trustor's chief executive office is located in the State of Illinois;
(iii) Trustor's state of formation is the State of Delaware;
(iv) Trustor's exact legal name is as set forth in the first paragraph of
this Deed of Trust; and
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(v) Trustor's organizational identification number is 3485351.
(k) Trustor agrees that:
(i) Where Collateral is in possession ofa third party, Trustor will join
with the Beneficiary in notifying the third party of the Beneficiary's interest and
obtaining an acknowledgment from the third party that it is holding the Collateral
for the benefit of Beneficiary;
(ii) Trustor will cooperate with the Beneficiary in obtaining control
with respect to Collateral consisting of: deposit accounts, investment property,
letter of credit rights and electronic chattel paper; and
(iii) Until the Indebtedness is paid in full, Trustor will not change the
state where it is located or change its corporate name without giving the
Beneficiary at least 30 days' prior written notice in each instance.
14. Restrictions on Transfer.
(a) Trustor, without the prior written consent of Beneficiary, shall not effect,
suffer or permit any Prohibited Transfer (as defined herein). Any conveyance, sale,
assignment, transfer. lien, pledge, mortgage, security interest or other encumbrance or
alienation (or any agreement to do any of the foregoing) of any of the following
properties or interests shall constitute a "Prohibited Transfer":
(i) The Premises or any part thereof or interest therein. excepting only
(A) sales or other dispositions of Collateral (herein called "Obsolete Collateral")
no longer useful in connection with the operation of the Premises, provided that
prior to the sale or other disposition thereof, such Obsolete Collateral has been
replaced by Collateral of at least equal value and utility which is subject to the
lien hereof with the same priority as with respect to the Obsolete Collateral or
(B) sales or dispositions of a Lot (as defined in the Loan Agreement) permitted
under Section 8.8(c) of the Loan Agreement;
(ii) Any shares of capital stock of a corporate Trustor, a corporation
which is a general partner or managing member/manager in a partnership or
limited liability company Trustor, or a corporation which is the owner of
substantially all of the capital stock of any corporation described in this
subparagraph (other than the shares of capital stock of a corporate trustee or a
corporation whose stock is publicly traded on a national securities exchange or on
the National Association of Securities Dealers' Automated Quotation System);
(iii) All or any part of the membership interests, managing member or
manager interest, as the case may be, in a limited liability company Trustor or a
limited liability company which is a general partner of a partnership Trustor;
(iv) All or any part of the general partner or joint venture interest, as
the case may be, of a partnership Trustor or a partnership which is a manager of a
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limited liability company Trustor or the conversion of a partnership Trustor to a
corporation or limited liability company;
(v) If Snowmass shall fail to own 100% of the membership interests of
the Trustor; or
(vi) All or any part of the membership interests in Snowmass;
in each case whether any such conveyance, sale, assignment, transfer, lien,
pledge, mortgage, security interest, encumbrance or alienation is effected directly,
indirectly (including the nominee agreement), voluntarily or involuntarily, by operation
of law or otherwise; provided, however, the foregoing provisions of this Paragraph 14
shall not apply (a) to liens securing the Indebtedness, (b) to the lien of current taxes and
assessments not in default, (c) to any transfers of the Premises, or part thereof, or interest
therein, or any beneficial interests, or shares of stock or partnership or joint venture
interests, as the case may be, by or on behalf of an owner thereof who is deceased or
declared judicially incompetent, to such owner's heirs, legatees, devisees, executors,
administrators, estate or personal representatives, or (d) to leases permitted by the terms
of the Loan Documents, if any. Notwithstanding anything in clauses (iii) or (vi) above to
the contrary, the transfers referred to in clauses (iii) or (vi) above shall not be deemed
breached if (1) membership interest of any member of Trustor or Snowmass is diluted by
another member (on the date hereof) of Trustor or Snowmass in the manner provided in
Trustor's or Snowmass's respective operating agreement, or (2) membership interests of
Trustor or Snowmass may be transferred to other current (as of the date hereof) members
of Trustor or Snowmass, as the case may be, or (3) such transfer of a membership interest
in Snowmass is to a Permitted Transferee (as defined in the Amended and Restated
Operating Agreement of Snowmass dated January 1, 2002 ("Operating Agreement")),
or (4) such transfer of the membership interest of Bell (as defined in the Operating
Agreement) in Snowmass is to a trust company, public or private pension fund, state or
local government retirement system or fund, investment company, investment advisor,
union, real estate investment trust, charitable foundation, bank, insurance company,
private capital pool, endowment or similar institutional investor, in each case that
satisfies all of the following conditions: (i) such investor regularly invests, whether
directly or indirectly, in real estate; (ii) such investor is solvent immediately after its
acquisition of the interest in question; (iii) such investor has gross assets with an
aggregate value of at least One Billion Dollars ($1,000,000,000); (iv) such investor shall
not have paid more than twenty percent (20%) of its gross assets for such interest; or
(v) such investor is of good repute.
(b) In determining whether or not to make the Loan, Beneficiary evaluated the
background and experience of Trustor and its partners/officers in owning and operating
property such as the Premises, found it acceptable and relied and continues to rely upon
same as the means of maintaining the value of the Premises which is Beneficiary's
security for the Note. Trustor and its partners/officers are well experienced in borrowing
money and owning and operating property such as the Premises, were ably represented
by a licensed attorney at law in the negotiation and documentation of the Loan and
bargained at arm's length and without duress of any kind for all of the terms and
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conditions of the Loan, including this provision. Trustor recognizes that Beneficiary is
entitled to keep its loan portfolio at current interest rates by either making new loans at
such rates or collecting assumption fees and/or increasing the interest rate on a loan, the
security for which is purchased by a party other than the original Trustor. Trustor further
recognizes that any secondary junior financing placed upon the Premises (a) may divert
funds which would otherwise be used to pay the Note; (b) could result in acceleration and
foreclosure by any such junior encumbrance which would force Beneficiary to take
measures and incur expenses to protect its security; (c) would detract from the value of
the Premises should Beneficiary come into possession thereof with the intention of
selling same; and (d) would impair Beneficiary's right to accept a deed in lieu of
foreclosure, as a foreclosure by Beneficiary would be necessary to clear the title to the
Premises. In accordance with the foregoing and for the purposes of (i) protecting
Beneficiary's security, both of repayment and of value of the Premises; (ii) giving
Beneficiary the full benefit of its bargain and contract with Trustor; (iii) allowing
Beneficiary to raise the interest rate and collect assumption fees; and (iv) keeping the
Premises free of subordinate financing liens, Trustor agree that if this Paragraph 14 is
deemed a restraint on alienation, that it is a reasonable one.
Notwithstanding anything herein to the contrary, Beneficiary's prior consent shall not be required
in connection with any grant by Trustor of easements, restrictions, covenants, reservations and
rights of way (or any modification of existing Permitted Exceptions) in the ordinary course of
Trustor's business for water and sewer lines, electric or other utilities for the Premises.
15. Single Asset Entity. Trustor shall not hold or acquire, directly or indirectly, any
ownership interest (legal or equitable) in any real or personal property other than the Premises, or
become a shareholder of or a member or partner in any entity which acquires any property other
than the Premises, until such time as the Indebtedness has been fully repaid. Trustor's articles of
incorporation, partnership agreement or operating agreement, as applicable, shall limit its
purpose to the acquisition, operation, management and disposition of the Premises, and such
purposes shall not be amended without the prior written consent of Beneficiary. Trustor
covenants:
(a) To maintain its assets, accounts, books, records, financial statements,
stationery, invoices, and checks separate from and not commingled with any of those of
any other person or entity;
(b) To conduct its own business in its own name, pay its own liabilities out of
its own funds, allocate fairly and reasonably any overhead for shared employees and
office space, and to maintain an arm's length relationship with its affiliates;
(c) To hold itself out as a separate entity, correct any known
misunderstanding regarding its separate identity, maintain adequate capital in light of its
contemplated business operations, and observe all organizational formalities;
(d) Not to guarantee or become obligated for the debts of any other entity or
person or hold out its credits as being available to satisfy the obligations of others,
including not acquiring obligations or securities of its partners, members or shareholders;
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(e) Not to pledge its assets for the benefit of any other entity or person or
make any loans or advances to any person or entity;
(f) Not to enter into any contract or agreement with any party which is
directly or indirectly controlling. controlled by or under common control with Trustor (an
"Affiliate"), except upon terms and conditions that are intrinsically fair and substantially
similar to those that would be available on an arms -length basis with third parties other
than any Affiliate;
(g) Neither Trustor nor any constituent party of Trustor will seek the
dissolution or winding up, in whole or in part, of Trustor. nor will Trustor merge with or
be consolidated into any other entity;
(h) Trustor has and will maintain its assets in such a manner that it will not be
costly or difficult to segregate, ascertain or identify its individual assets from those of any
constituent party of Trustor, Affiliate, Snow mass or any other person; and
(i) Trustor now has and will hereafter have no debts or obligations other than
in favor of Trustee, normal accounts payable in the ordinary course of business, secured
by this Deed of Trust, and the Loan; and any other indebtedness or other obligation of
Trustor has been paid in full prior to or through application of proceeds from the funding
of the Loan.
16. Events of Default; Acceleration. The occurrence of any "Event of Default"
under the Loan Agreement shall be an Event of Default under this Deed of Trust.
If an Event of Default occurs, the Beneficiary may, at its option, declare the whole of the
Indebtedness to be immediately due and payable without further notice to the Trustor, with
interest thereon accruing from the date of such Event of Default until paid at the Default Rate;
provided, however, that with respect to any Event of Default described in Paragraph 11(d) of the
Loan Agreement, if Trustor is the party to such Event of Default, all principal of and interest on
the Note and all other obligations of the Trustor hereunder or under any of the Loan Documents
shall become due and payable without presentment, demand. protest or other notice of any kind
all of which are hereby expressly waived.
17. Foreclosure; Expense of Litigation.
(a) When all or any part of the Indebtedness shall become due, whether by
acceleration or otherwise. Beneficiary shall have the right to foreclose the lien hereof for
such Indebtedness or part thereof and/or exercise any right, power or remedy provided in
this Deed of Trust or any of the other Loan Documents in accordance with the Local
Foreclosure Laws (as defined below). In the event of a foreclosure sale, Beneficiary is
hereby authorized, without the consent of Trustor, to assign any and all insurance policies
to the purchaser at such sale or to take such other steps as Beneficiary may deem
advisable to cause the interest of such purchaser to be protected by any of such insurance
policies.
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(b) In any suit to foreclose the lien hereof, there shall be allowed and included
as additional indebtedness in the decree for sale all expenditures and expenses which may
be paid or incurred by or on behalf of Beneficiary for reasonable attorneys' fees,
appraisers' fees, outlays for documentary and expert evidence, stenographers' charges,
publication costs, and costs (which may be estimated as to items to be expended after
entry of the decree) of procuring all such abstracts of title, title searches and
examinations, title insurance policies, and similar data and assurances with respect to the
title as Beneficiary may deem reasonably necessary either to prosecute such suit or to
evidence to bidders at any sale which may be had pursuant to such decree the true
condition of the title to or the value of the Premises. All expenditures and expenses of
the nature mentioned in this paragraph and such other expenses and fees as may be
incurred in the enforcement of Trustor's obligations hereunder, the protection of said
Premises and the maintenance of the lien of this Deed of Trust, including the reasonable
fees of any attorney employed by Beneficiary in any litigation or proceeding affecting
this Deed of Trust, the Note, or the Premises, including probate and bankruptcy
proceedings, or in preparations for the commencement or defense of any proceeding or
threatened suit or proceeding shall be immediately due and payable by Trustor, with
interest thereon until paid at the Default Rate and shall be secured by this Deed of Trust.
Notwithstanding the foregoing, in the event Beneficiary incurs fees and costs in
connection with any enforcement action by Beneficiary under this Deed of Trust and/or
the Note and Beneficiary does not prevail in whole or in part in connection with such
action, (i) Trustor shall not be responsible for the payment of such fees and costs, and
(ii) such fees and costs shall not become additional indebtedness hereunder.
18. Remedies.
(a) Upon the occurrence of any Event of Default, Beneficiary may take such
action, without notice or demand, as it deems advisable to protect and enforce its rights
against Trustor and in and to the Premises, by Beneficiary itself or otherwise, including,
but not limited to, the following actions, each of which may be pursued concurrently or
otherwise, at such time and in such order as Beneficiary may determine, in its sole
discretion, without impairing or otherwise affecting the other rights and remedies of
Beneficiary:
(i) declare the entire principal amount of the indebtedness secured
hereby with interest accrued thereon to be immediately due and payable;
(ii) institute a proceeding or proceedings, judicial or nonjudicial, by
advertisement or otherwise, for the complete foreclosure of this Deed of Trust in
which case the Premises or any interest therein may be sold for cash or upon
credit in one or more parcels or in several interests or portions and in any order or
manner in accordance with the laws of the jurisdiction in which such Premises is
located;
(iii) with or without entry, to the extent permitted, and pursuant to the
procedures provided by, applicable law, institute proceedings for the foreclosure
of this Deed of Trust for the Indebtedness then due and payable subject to the
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continuing lien of this Deed of Trust, in accordance with the laws of the
jurisdiction in which such Premises is located, for the balance of the Indebtedness
not then due;
(iv) under the power of sale hereby granted, Beneficiary shall have the
discretionary right to cause some or all of the Premises, including any portion of
the Premises which constitutes personal property, to be sold or otherwise disposed
of in any combination and in any manner not prohibited by applicable Local
Foreclosure Laws;
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(1) For purposes of this power of sale, Beneficiary may elect to
treat as personal property any portion of the Premises which is intangible
or which can be severed from the Real Estate or Improvements without
causing structural damage. If it chooses to do so, Beneficiary may dispose
of any personal property separately from the sale of real property, in any
manner not prohibited by Division 9 of the Code, including any public or
private sale, or in any manner not prohibited by any other applicable law.
(2) Beneficiary may choose to dispose of some or all of the
Premises which consists solely of real property in any manner then not
prohibited by applicable Local Foreclosure Laws. In its sole and absolute
discretion, Beneficiary may also or alternatively choose to dispose of
some or all of the Premises, in any combination consisting of both real and
personal property, together in one sale to be held in accordance with the
law and procedures applicable to real property, as permitted by the Code.
Trustor agrees that such a sale of personal property together with real
property constitutes a commercially reasonable sale of the personal
property. For purposes of this power of sale, either a sale of real property
alone, or a sale of both real and personal property together in accordance
with Code, will sometimes be referred to as a "Trustee's Sale." Before
any Trustee's Sale, Beneficiary or Trustee shall give such notice of default
and election to sell as may then be required by law. When all time periods
then legally mandated have expired, and after such notice of sale as may
then be legally required has been given, Trustee shall sell the property
being sold at a public auction to be held at the time and place specified in
the notice of sale. Neither Trustee nor Beneficiary shall have any
obligation to make demand on Trustor before any Trustee's Sale. From
time to time in accordance with then applicable law, Trustee may, and in
any event at Beneficiary's request shall, postpone any Trustee's Sale by
public announcement at the time and place noticed for that sale. At any
Trustee's Sale, Trustee shall sell to the highest bidder at public auction for
cash in lawful money of the United States. Trustee shall execute and
deliver to the purchaser(s) a deed or deeds conveying the property being
sold without any covenant or warranty whatsoever, express or implied.
Absent manifest error, any such deed shall be (1) conclusive against all
persons as to the facts recited in it; and (2) conclusive evidence in favor of
purchasers and encumbrancers for value and without actual notice, that all
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requirements of this Deed of Trust and all requirements of law were met
relating to the exercise of the power of sale and the Trustee's Sale of the
Premises conveyed by such deed. Knowledge of the Trustee shall not be
imputed to the Beneficiary.
(v) institute an action, suit or proceeding in equity for the specific
performance of any covenant, condition or agreement contained herein or in the
other Loan Documents;
(vi) to the extent permitted by law, recover judgment on the Note either
before, during or after any proceedings for the enforcement of this Deed of Trust;
(vii) apply for the appointment of a trustee, receiver, liquidator or
conservator of the Premises, without notice and without regard for the adequacy
of the security for the Indebtedness and without regard for the solvency of Trustor
or any person, firm or other entity liable for the payment of the Indebtedness;
(viii) enforce Beneficiary's interest in the Leases and rents and enter into
or upon the Premises, either personally or by its agents, nominees or attorneys and
dispossess Trustor and its agents and servants therefrom, and thereupon
Beneficiary may (A) use, operate, manage, control, insure, maintain, repair,
restore and otherwise deal with all and every part of the Premises and conduct the
business thereat; (B) complete any construction on the Premises in such manner
and form as Beneficiary deems advisable; (C) make alterations, additions,
renewals, replacements and improvements to or on the Premises; (D) exercise all
rights and powers of Trustor with respect to the Premises, whether in the name of
Trustor or otherwise (including, without limitation, the right to make, cancel,
enforce or modify Leases, obtain and evict tenants, and demand, sue for, collect
and receive all earnings, revenues. rents, issues profits and other income of the
Premises and every part thereof); and (E) apply the receipts from the Premises to
the payment of the Indebtedness, after deducting therefrom all expenses
(including, without limitation, reasonable attorneys' fees) incurred in connection
with the aforesaid operations and all amounts necessary to pay the taxes,
assessments, insurance and other' charges in connection with the Premises, as well
as just and reasonable compensation for the services of Beneficiary, Trustee and
their respective counsel, agents and employees;
(ix) require Trustor to pay monthly in advance to Beneficiary, or any
receiver appointed to collect the Rents, the fair and reasonable rental value for the
use and occupation of any portion of the Premises occupied by Trustor and
require Trustor to vacate and surrender possession to Beneficiary of the Premises
or to such receiver and, in default thereof, evict Trustor by summary proceedings
or otherwise;
(x) either Beneficiary or Trustee may cure any breach or default of
Trustor, and if it chooses to do so in connection with any such cure, Beneficiary
or Trustee may also enter the Premises and/or do any and all other things which it
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may in its sole and absolute discretion consider necessary and appropriate to
protect the security of this Deed of Trust. Such other things may include:
appearing in and/or defending any action or proceeding which purports to affect
the security of, or the rights or powers of Beneficiary or Trustee under, this Deed
of Trust; paying, purchasing, contesting or compromising any encumbrance,
charge, lien or claim of lien which in Beneficiary's or Trustee's sole judgment is
or may be senior in priority to this Deed of Trust, such judgment of Beneficiary or
Trustee to be conclusive as among the parties to this Deed of Trust; obtaining
insurance and/or paying any premiums or charges for insurance required to be
carried under the Loan Documents; otherwise caring for and protecting any and
all of the Premises; and/or employing counsel, accountants, contractors and other
appropriate persons to assist Beneficiary or Trustee. Beneficiary and Trustee may
take any of the actions permitted under this Section either with or without giving
notice to any person;
(xi) Trustor hereby irrevocably constitutes and appoints Beneficiary as
Trustor's attorney-in-fact to perform such acts and execute such documents as
Beneficiary in its sole and absolute discretion may consider to be appropriate,
exercisable upon the occurrence and continuance of an Event of Default, (1) to
effect the purpose of this Deed of Trust; and (2) in connection with taking the
measures described in this Paragraph 18, including endorsement of Trustor's name
on any instruments. The parties acknowledge and agree that the appointment
granted in this section is an irrevocable power coupled with an interest;
(xii) pursue such other rights and remedies as may be available at law or
in equity or under the Code including the right to establish a lock box for all rents
and other receivables of Trustor relating to the Premises; or
(xiii) Beneficiary may elect to dispose of the Premises, or any portion
thereof, including but not limited to lots, parcels, and/or items through a single
consolidated sale or disposition to be held or made under the power of sale
granted in above, or in connection with judicial proceedings, or by virtue of a
judgment and decree of foreclosure and sale; or through two or more such sales or
dispositions; or in any other manner Beneficiary may deem to be in its best
interests (any such sale or disposition, a "Foreclosure Sale"; any two or more,
"Foreclosure Sales"). If the Premises consists of more than one lot, parcel or
item of property, Beneficiary may designate the order in which the lots, parcels
and/or items shall be sold or disposed of or offered for sale or disposition. If
Beneficiary chooses to have more than one Foreclosure Sale, Beneficiary at its
option may cause the Foreclosure Sales to be held simultaneously or successively,
on the same day, or on such different days and at such different times and in such
order as Beneficiary may deem to be in its best interests. No Foreclosure Sale
shall terminate or affect the lien of this Deed of Trust on any part of the Premises
which has not been sold, until all of the Indebtedness has been paid and
performed in full. At any Foreclosure Sale, any person, including Trustor,
Trustee, or Beneficiary, may bid for and acquire the Premises or any part of it to
the extent not expressly prohibited by then applicable law. Instead of paying cash
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for such premises, Beneficiary may settle for the purchase price by crediting the
sales price of the premises against the following obligations: first, the portion of
the Indebtedness attributable to the expenses of sale, costs of any action, and any
other sums for which Trustor is obligated to pay or reimburse Beneficiary or
Trustee under any Loan Document; and second, all other Indebtedness in any
order and proportions as Beneficiary in its sole and absolute discretion may
choose. If at any time (i) Trustor maintains insurance covering the Premises,
which insurance is not part of a pooled insurance policy covering properties
owned by Trustor in addition to the Premises, or (ii) any such pooled insurance
policy provides for the segregation of premiums among the properties covered
thereby, then Trustor shall be deemed to have hereby assigned to Beneficiary all
unearned premiums on any such policy, and Trustor shall be deemed to have
agreed hereby that any and all unexpired insurance shall inure to the benefit of,
and pass to, Beneficiary upon acquisition by Beneficiary of the Premises through
foreclosure proceedings or any purchaser of the Premises pursuant to such
foreclosure proceedings. Beneficiary, from time to time before any Trustee's sale,
may rescind any notice of default and election to sell or notice of sale by
executing and delivering to Trustee a written notice of such rescission, which
such notice, when recorded, shall also constitute a cancellation of any prior
declaration of default and demand for sale. The exercise by Beneficiary of such
right of rescission shall not constitute a waiver of any breach or default then
existing or subsequently occurring, or impair the right of Beneficiary to execute
and deliver to Trustee other declarations or notices of default and demand for sale
of the Premises to satisfy the obligations of this Deed of Trust, nor otherwise
affect any provision, covenant or condition of any Loan Document or any of the
rights, obligations or remedies of Trustee or Beneficiary under this Deed of Trust
or any such Loan Document. In the event of reinstatement of the Indebtedness
after an Event of Default in accordance with applicable law, Trustee shall record a
Cancellation of Notice of Sale. Reinstatement of an Event of Default shall not
constitute a waiver of any Event of Default then existing or subsequently
occurring, nor impair the right of Beneficiary to declare other Events of Default or
the right to cause Trustee to record a Notice of Sale, nor otherwise affect this
Deed of Trust or any of the Loan Documents, or any of the rights, obligations, or
remedies of Beneficiary or Trustee under this Deed of Trust or any of the Loan
Documents.
(b) The proceeds of any sale made under or by virtue of this Paragraph 18,
together with any other sums which then may be held by Beneficiary under this Deed of
Trust, whether under the provisions of this section or otherwise, shall be applied by
Beneficiary in accordance with the provisions of this Deed of Trust.
(c) To the extent allowed by law, no recovery of any judgment by Beneficiary
and no levy of an execution under any judgment upon the Premises or upon any other
property of Trustor shall affect in any manner or to any extent the lien of this Deed of
Trust upon the Premises or any part thereof, or any liens, rights, powers or remedies of
Beneficiary and Trustee hereunder, but such liens, rights, powers and remedies of
Beneficiary and Trustee shall continue unimpaired as before.
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(d) Beneficiary may terminate or rescind any proceeding or other action
brought in connection with its exercise of the remedies provided in this Paragraph 18 at
any time before the conclusion thereof, as determined in Beneficiary's sole discretion and
without prejudice to Beneficiary.
(e) To the extent permitted by law, Beneficiary may resort to any remedies
and the security given by this Deed of Trust or the other Loan Documents in whole or in
part, and in such portions and in such order as determined by Beneficiary's sole
discretion. No such action shall in any way be considered a waiver of any rights, benefits
or remedies evidenced or provided by this Deed of Trust or the other Loan Documents.
The failure of Beneficiary to exercise any right, remedy or option provided in this Deed
of Trust or the other Loan Documents shall not be deemed a waiver of such right, remedy
or option or of any covenant or obligation secured by this Deed of Trust or the other Loan
Documents. No acceptance by Beneficiary of any payment after the occurrence and
during the continuation of any Event of Default and no payment by Beneficiary of any
obligation for which Trustor is liable hereunder shall be deemed to waive or cure any
Event of Default with respect to Trustor, or Trustor's liability to pay such obligation. No
sale of all or any portion of the Premises, no forbearance on the part of Beneficiary, and
no extension of time for the payment of the whole or any portion of the Indebtedness or
any other indulgence given by Beneficiary to Trustor, shall operate to release or in any
manner affect the interest of Beneficiary in the remaining Premises or the liability of
Trustor to pay the Indebtedness. No waiver by Beneficiary shall be effective, unless it is
in writing and then only to the extent specifically stated.
(f) The interests and rights of Beneficiary and Trustee under this Deed of
Trust or the other Loan Documents shall not be impaired by (i) any renewal, extension or
modification which Beneficiary may grant with respect to any of the Indebtedness,
(ii) any surrender, compromise, release, renewal, extension, exchange or substitution
which Beneficiary may grant with respect to the Premises or any portion thereof; or
(iii) any release or indulgence granted to any maker, endorser, guarantor or surety of any
of the Indebtedness.
(g) Trustor agrees to the full extent permitted by law that if an Event of
Default occurs, neither Trustor nor anyone claiming through or under it shall or will set
up, claim or seek to take advantage of any appraisement, valuation, stay, extension or
redemption laws now or hereafter in force, in order to prevent or hinder the enforcement
or foreclosure of this Deed of Trust or the absolute sale of the Premises or any portion
thereof or the final and absolute putting into possession thereof, immediately after such
sale, of the purchasers thereof, and Trustor for itself and all who may at any time claim
through or under it, hereby waives, to the full extent that it may lawfully do so, (i) the
benefit of all such laws, (ii) all notices of any Event of Default or of Beneficiary's or
Trustee's election to exercise or actual exercise of any right, remedy or recourse provided
for under the Loan Documents, and (iii) any and all right to have the assets comprising
the Premises marshaled upon any foreclosure of the lien hereof, and Trustor agrees that
Beneficiary, Trustee or any court having jurisdiction to foreclose such lien may sell the
Premises in part or as an entirety.
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19. Appointment of Receiver. Upon the occurrence of an Event of Default, the
court shall, upon petition by Beneficiary, appoint a receiver for the Premises. Such appointment
may be made either before or after sale at foreclosure, without notice, without regard to the
solvency or insolvency of Trustor at the time of application for such receiver and without regard
to the value of the Premises or whether the same shall be then occupied as a homestead or not
and Beneficiary hereunder or any other holder of the Note may be appointed as such receiver.
Such receiver shall have power to collect the rents, issues and profits of the Premises.
Beneficiary shall be entitled to secure the appointment of a receiver, as a matter of right whether
such receivership be incident to a proposed sale of the Premises or otherwise. Trustor hereby
waives any and all defenses to such appointment and agrees not to oppose any application
therefor by Beneficiary. Such receiver also shall have all other powers and rights that may be
necessary or are usual in such cases for the protection, possession, control, management and
operation of the Premises during said period, including, to the extent permitted by law, the right
to lease all or any portion of the Premises for a term that extends beyond the time of such
receiver's possession without obtaining prior court approval of such lease. The court from time
to time may authorize the application of the net income received by the receiver in payment of
(a) the Indebtedness or any tax, special assessment or other lien which may be or become
superior to the lien hereof or of such decree, and (b) any deficiency upon a foreclosure sale and
deficiency.
20. Intentionally Omitted.
21. Application of Income Received by Beneficiary. Beneficiary, in the exercise of
the rights and powers hereinabove conferred upon it, shall have full power to use and apply the
avails, rents, issues and profits of the Premises to the payment of or on account of the following,
in such order as Beneficiary may determine:
(a) to the payment of the operating expenses of the Premises, including cost
of management and leasing thereof (which shall include compensation to Beneficiary and
its agent or agents, if management be delegated to an agent or agents, and shall also
include lease commissions and other compensation and expenses of seeking and
procuring tenants and entering into leases), but in no event shall such amounts exceed the
fees of third party managers performing comparable work in the vicinity of the Premises)
established claims for damages, if any, and premiums on insurance hereinabove
authorized;
(b) to the payment of taxes and special assessments now due or which may
hereafter become due on the Premises; and
(c) to the payment of any Indebtedness, including any deficiency which may
result from any foreclosure sale.
22. Rights Cumulative. Each right, power and remedy herein conferred upon
Trustee and/or Beneficiary is cumulative and in addition to every other right, power or remedy,
express or implied, given now or hereafter existing under any of the Loan Documents or at law
or in equity, and each and every right, power and remedy herein set forth or otherwise so existing
may be exercised from time to time as often and in such order as may be deemed expedient by
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Beneficiary, and the exercise or the beginning of the exercise of one right, power or remedy shall
not be a waiver of the right to exercise at the same time or thereafter any other right, power or
remedy, and no delay or omission of Trustee and/or Beneficiary in the exercise of any right,
power or remedy accruing hereunder or arising otherwise shall impair any such right, power or
remedy, or be construed to be a waiver of any Event of Default or acquiescence therein.
23. Beneficiary's Right of Inspection. Beneficiary and its representatives shall have
the right to inspect the Premises and the books and records with respect thereto at all reasonable
times upon not less than twenty-four (24) hours prior notice to Trustor, and access thereto,
subject to the rights of tenants in possession, shall be permitted for that purpose.
24. Release Upon Payment and Discharge of Trustor's Obligations. Upon
payment of all sums secured by this Deed of Trust and any other sums due to Beneficiary in
connection with the Loan Documents. Beneficiary shall release this Deed of Trust at Trustor's
sole cost and expense.
25. Notices. Any notices, communications and waivers under this Deed of Trust shall
be in writing and shall be (i) delivered in person, (ii) mailed, postage prepaid, either by registered
or certified mail, return receipt requested, or (iii) by overnight express carrier, addressed in each
case as follows:
To Beneficiary:
And:
To Trustor:
And:
The PrivateBank and Trust Company
120 South LaSalle
Chicago. Illinois 60603
Attention: Jake Noble
DLA Piper LLP (US)
Suite 1900
203 North LaSalle Street
Chicago, Illinois 60601-1263
Attn: Alison M. Mitchell, Esq.
SLC—Laurence, LLC
c/o Snowmass Land Company, LLC
1849 Green Bay Road. 4th Floor
Highland Park, Illinois 60035
Attention: Stephen Perlmutter
Snowmass Land Company, LLC
1849 Green Bay Road, 4th Floor
Highland Park. Illinois 60035
Attention: Craig Arnson
or to any other address as to any of the parties hereto, as such party shall designate in a written
notice to the other party hereto. All notices sent pursuant to the terms of this Paragraph shall be
deemed received (i) if personally delivered, then on the date of delivery, (ii) if sent by overnight,
express carrier, then on the next federal banking day immediately following the day sent, or
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(iii) if sent by registered or certified mail, then on the earlier. of the third federal banking day
following the day sent or when actually received.
26. Waiver of Rights. The Trustor hereby covenants and agrees that it will not at
any time insist upon or plead, or in any manner claim or take any advantage of any stay,
exemption or extension law or any so-called "Moratorium Law" now or at any time hereafter in
force providing for the valuation or appraisement of the Premises, or any part thereof, prior to
any sale or sales thereof to be made pursuant to any provisions herein contained, or to decree,
judgment or order of any court of competent jurisdiction; or, after such sale or sales, claim or
exercise any rights under any statute now or hereafter in force to redeem the property so sold, or
any part thereof, or relating to the marshalling thereof, upon foreclosure sale or other
enforcement hereof, and without limiting the foregoing, the Trustor will not invoke or utilize any
such law or laws or otherwise hinder, delay or impede the execution of any right, power remedy
herein or otherwise granted or delegated to the Beneficiary but will suffer and permit the
execution of every such right, power and remedy as though no such law or laws had been made
or enacted.
27. Contests. Notwithstanding anything to the contrary herein contained, Trustor
shall have the right to contest by appropriate legal proceedings diligently prosecuted any Taxes
imposed or assessed upon the Premises or which may be or become a lien thereon and any
mechanics', materialmen's or other liens or claims for lien upon the Premises (all herein called
"Contested Liens"), and no Contested Liens shall constitute an Event of Defauit hereunder, if,
but only if:
(a) Trustor shall forthwith give notice of any Contested Lien to Beneficiary at
the time the same shall be asserted;
(b) Trustor shall either pay under protest or deposit with Beneficiary the full
amount (herein called "Lien Amount") of such Contested Lien, together with such
amount as Beneficiary may reasonably estimate as interest or penalties which might arise
during the period of contest; provided that in lieu of such payment Trustor may furnish to
Beneficiary a bond or title indemnity in such amount and form, and issued by a bond or
title insuring company, as may be satisfactory to Beneficiary;
(c) Trustor shall diligently prosecute the contest of any Contested Lien by
appropriate legal proceedings having the effect of staying the foreclosure or forfeiture of
the Premises, and shall permit Beneficiary to be represented in any such contest and shall
pay all expenses incurred, in so doing, including reasonable fees and expenses of
Beneficiary's counsel (all of which shall constitute so much additional Indebtedness
bearing interest at the Default Rate until paid, and payable upon demand);
(d) Trustor shall pay such Contested Lien and all Lien Amounts together with
interest and penalties thereon (i) if and to the extent that any such Contested Lien shall be
determined adverse to Trustor, or (ii) forthwith upon demand by Beneficiary if, in the
opinion of Beneficiary, and notwithstanding any such contest, the Premises shall be in
jeopardy or in danger of being forfeited or foreclosed; provided that if Trustor shall fail
so to do, Beneficiary may, but shall not be required to, pay all such Contested Liens and
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Lien Amounts and interest and penalties thereon and such other sums as may be
necessary in the judgment of the Beneficiary to obtain the release and discharge of such
liens; and any amount expended by Beneficiary in so doing shall be so much additional
Indebtedness bearing interest at the Default Rate until paid, and payable upon demand;
and provided further that Beneficiary may in such case use and apply monies deposited as
provided in subsection (b) above and may demand payment upon any bond or title
indemnity furnished as aforesaid.
28. Expenses Relating to Note and Deed of Trust.
(a) Subject to the provisions of Paragraph 17(b) above, Trustor will pay all
expenses, charges, costs and fees relating to the Loan or necessitated by the terms of the
Note, this Deed of Trust or any of the other Loan Documents, including without
limitation, Trustee's and Beneficiary's reasonable attorneys' fees in connection with the
negotiation, documentation, administration, servicing and enforcement of the Note, this
Deed of Trust and the other Loan Documents, all filing, registration and recording fees,
all other expenses incident to the execution and acknowledgment of this Deed of Trust
and all federal, state, county and municipal taxes, and other taxes (provided Trustor shall
not be required to pay any income or franchise taxes of Beneficiary), duties, imposts,
assessments and charges arising out of or in connection with the execution and delivery
of the Note and this Deed of Trust. Trustor recognizes that, during the term of this Deed
of Trust, Beneficiary:
(i) May be involved in court or administrative proceedings, including,
without restricting the foregoing, foreclosure, probate, bankruptcy, creditors'
arrangements, insolvency, housing authority and pollution control proceedings of
any kind, to which Beneficiary shall be a party by reason of the Loan Documents
or in which the Loan Documents or the Premises are involved directly or
indirectly;
(ii) May make preparations following the occurrence of an Event of
Default hereunder for the commencement of any suit for the foreclosure hereof,
which may or may not be actually commenced;
(iii) May make preparations following the occurrence of an Event of
Default hereunder for, and do work in connection with, Beneficiary's taking
possession of and managing the Premises, which event may or may not actually
occur;
(iv) May make preparations for and commence other private or public
actions to remedy an Event of Default hereunder, which other actions may or may
not be actually commenced;
(v) After the occurrence of an Event of Default, may enter into
negotiations with Trustor or any of its agents, employees or attorneys in
connection with the existence or curing of any Event of Default hereunder, the
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sale of the Premises. the assumption of liability for any of the Indebtedness or the
transfer of the Premises in lieu of foreclosure; or
(vi) May enter into negotiations with Trustor or any of its agents,
employees or attorneys pertaining to Beneficiary's approval of actions taken or
proposed to be taken by Trustor which approval is required by the terms of this
Deed of Trust.
(b) All expenses, charges, costs and fees described in this Paragraph 28 shall
be so much additional Indebtedness, shall bear interest from the date so incurred until
paid at the Default Rate and shall be paid, together with said interest, by Trustor
forthwith upon demand.
29. Financial Statements. The Trustor represents and warrants that the financial
statements for the Trustor and the Premises previously submitted to the Beneficiary are true,
complete and correct in all material respects, disclose all actual and contingent liabilities of the
Trustor or relating to the Premises and do not contain any untrue statement of a material fact or
omit to state a fact material to such financial statements. No material adverse change has
occurred in the financial condition of the. Trustor or the Premises from the dates of said financial
statements until the date hereof. The Trustor shall furnish to the Beneficiary such financial
information regarding the Trustor, its constituent partners or members, as the case may be, the
Premises and Snowmass as the Beneficiary may from time to time reasonably request, which
shall include, without any further request therefor, (i) quarterly financial statements for the
Premises including a balance sheet, statement of income and rent roll for the Premises (if
applicable), no later than forty-five (45) days after the end of each calendar quarter of each year,
all in form, scope and detail satisfactory to the Beneficiary and certified by the chief financial
officer or other appropriate officer, partner or member of the Trustor, and (ii) annual unaudited
financial statements for Trustor and the Premises no later than one hundred twenty (120) days
after the end of each year, and annual financial statements for any guarantor of the Note no later
than one hundred twenty (120) days after the end of each year, together with an unqualified
accountant's opinion in a form satisfactory to the Beneficiary and an operating budget for the
Premises for the next year.
30. Statement of Indebtedness. Trustor, within seven days after being so requested
by Beneficiary, shall furnish a duly acknowledged written statement setting forth the amount of
the debt secured by this Deed of Trust, the date to which interest has been paid and stating either
that no offsets or defenses exist against such debt or, if such offsets or defenses are alleged to
exist, the nature thereof.
31. Further Instruments. Upon request of Beneficiary, Trustor shall execute,
acknowledge and deliver all such additional instruments and further assurances of title and shall
do or cause to be done all such further acts and things as may reasonably be necessary fully to
effectuate the intent of this Deed of Trust and of the other Loan Documents.
32. Additional Indebtedness Secured. All persons and entities with any interest in
the Premises or about to acquire any such interest should be aware that this Deed of Trust
secures more than the stated principal amount of the Note and interest thereon; this Deed of Trust
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secures any and ail other amounts which may become due under the Note or any other document
or instrument evidencing, securing or otherwise affecting the Indebtedness, including, without
limitation, any and all amounts expended by Beneficiary to operate, manage or maintain the
Premises or to otherwise protect the Premises or the lien of this Deed of Trust.
33. Indemnity. Trustor hereby covenants and agrees that no liability shall be
asserted or enforced against Beneficiary in the exercise of the rights and powers granted to
Beneficiary in this Deed of Trust, and Trustor hereby expressly waives and releases any such
liability. Trustor shall indemnify and save Beneficiary harmless from and against any and all
liabilities, obligations, losses, damages, claims, costs and expenses (including reasonable
attorneys' fees and court costs) (collectively, "Claims") of whatever kind or nature which may be
imposed on, incurred by or asserted against Beneficiary at any time by any third party which
relate to or arise from: (a) any suit or proceeding (including probate and bankruptcy
proceedings), or the threat thereof, in or to which Beneficiary may or does become a party, either
as plaintiff or as a defendant, by reason of this Deed of Trust or for the purpose of protecting the
lien of this Deed of Trust; (b) the offer for sale or sale of all or any portion of the Premises; and
(c) the ownership, leasing, use, operation or maintenance of the Premises, if such Claims relate
to or arise from actions taken prior to the surrender of possession of the Premises to Beneficiary
in accordance with the terms of this Deed of Trust; provided, however, that Trustor shall not be
obligated to indemnify or hold Beneficiary harmless from and against any Claims arising from
the gross negligence or willful misconduct of Beneficiary or actions taken by parties other than
Trustor (or Trustors agents, employees or contractors) after Beneficiary has taken possession or
control of the Premises). All costs provided for herein and paid for by Beneficiary shall be
deemed additional Indebtedness and shall become immediately due and payable upon demand by
Beneficiary and with interest thereon from the date incurred by Beneficiary until paid at the
Default Rate.
34. Subordination of Property Mana>aer's Lien. Any property management
agreement for the Premises entered into hereafter with a property manager shall contain a
provision whereby the property manager agrees that any and all mechanics' lien rights that the
property manager or anyone claiming by, through or under the property manager may have in the
Premises shall be subject and subordinate to the lien of this Deed of Trust and shall provide that
Beneficiary may terminate such agreement at any time after the occurrence of an Event of
Default hereunder. Such property management agreement or a short form thereof: at
Beneficiary's request, shall be recorded in the office of the Clerk and Recorder of the county
where the Premises are located. In addition, if the property management agreement in existence
as of the date hereof does not contain a subordination provision, Trustor shall cause the property
manager under such agreement to enter into a subordination of the management agreement with
Beneficiary, in recordable form, whereby such property manager subordinates present and future
lien rights and those of any party claiming by, through or under such property manager to the
lien of this Deed of Trust.
35. Compliance with Environmental Laws. Trustor acknowledges that
concurrently herewith Trustor has executed and delivered to Beneficiary an Environmental
Indemnity Agreement ("Indemnity") pursuant to which Trustor and Snowmass have fully
indemnified Beneficiary for certain environmental matters concerning the Premises, as more
particularly described therein. The provisions of the Indemnity are hereby incorporated herein
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and this Deed of Trust shall secure the obligations of Trustor thereunder. Trustor agrees to abide
by all of the provisions of the Indemnity.
36. Intentionally Deleted.
37. Miscellaneous.
(a) Successors and Assigns. This Deed of Trust and all provisions hereof
shall be binding upon and enforceable against Trustor and its assigns and other
successors (except to the extent that enforceability may be affected or limited by
applicable bankruptcy, insolvency and other similar debtor relief laws affecting the
enforcement of Beneficiary's rights generally). This Deed of Trust and all provisions
hereof shall inure to the benefit of Beneficiary, its successors and assigns and any holder
or holders, from time to time, of the Note and to the benefit of Trustee.
No person or entity other than Beneficiary, Trustor and Trustee shall be entitled to
rely on any matter set forth herein or gain any rights herein whether by subrogation or
otherwise.
(b) Invalidity of Provisions; Governing Law. THIS DEED OF TRUST
SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE
LAWS OF THE STATE OF ILLINOIS APPLICABLE TO CONTRACTS MADE
AND PERFORMED IN THE STATE OF ILLINOIS (WITHOUT REGARD TO
PRINCIPLES OF CONFLICT LAWS) AND ANY APPLICABLE LAW OF THE
UNITED STATES OF AMERICA, EXCEPT THAT AT ALL TIMES THE
PROVISIONS FOR THE CREATION, PERFECTION, AND ENFORCEMENT
OF THE LIENS AND SECURITY INTERESTS CREATED PURSUANT
HERETO AND PURSUANT TO THE ASSIGNMENT SHALL BE, IF
NECESSARY, GOVERNED BY AND CONSTRUED ACCORDING TO THE
LAW OF THE STATE IN WHICH THE PREMISES ARE LOCATED, IT BEING
UNDERSTOOD THAT, TO THE FULLEST EXTENT PERMITTED BY THE
LAW OF SUCH STATE, THE LAW OF THE STATE OF ILLINOIS SHALL
OTHERWISE GOVERN THE CONSTRUCTION, VALIDITY AND
ENFORCEABILITY OF ALL LOAN DOCUMENTS AND ALL OF THE
OBLIGATIONS ARISING HEREUNDER OR THEREUNDER. TO THE
FULLEST EXTENT PERMITTED BY LAW, TRUSTOR AND BENEFICIARY
HEREBY UNCONDITIONALLY AND IRREVOCABLY WAIVE ANY CLAIM
TO ASSERT THAT THE LAW OF ANY OTHER JURISDICTION GOVERNS
THIS DEED OF TRUST AND THE NOTE.
(c) Municipal Requirements. Trustor shall not by act or omission permit
any building or other improvement on premises not subject to the lien of this Deed of
Trust to rely on the Premises or any part thereof or any interest therein to fulfill any
municipal or governmental requirement, and Trustor hereby assigns to Beneficiary any
and all rights to give consent for all or any portion of the Premises or any interest therein
to be so used. Similarly, no building or other improvement on the Premises shall rely on
any premises not subject to the lien of this Deed of Trust or any interest therein to fulfill
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any governmental or municipal requirement. Any act or omission by Trustor which
would result in a violation of any of the provisions of this subparagraph shall be void.
(d) Rights of Tenants. Beneficiary shall have the right and option to
commence a civil action to foreclose this Deed of Trust and to obtain a decree of
foreclosure and sale subject to the rights of any tenant or tenants of the Premises having
an interest in the Premises prior to that of Beneficiary. The failure to join any such tenant
or tenants of the Premises as party defendant or defendants in any such civil action or the
failure of any decree of foreclosure and sale to foreclose their rights shall not be asserted
by Trustor as a defense in any civil action instituted to collect the Indebtedness, or any
part thereof or any deficiency remaining unpaid after foreclosure and sale of the
Premises, any statute or rule of law at any time existing to the contrary notwithstanding.
(e) Option of Beneficiary to Subordinate. At the option of Beneficiary, this
Deed of Trust shall become subject and subordinate, in whole or in part (but not with
respect to priority of entitlement to insurance proceeds or any condemnation or eminent
domain award) to any and all leases of all or any part of the Premises upon the execution
by Beneficiary of a unilateral declaration to that effect and the recording thereof in the
Office of the Clerk and Recorder in and for the county wherein the Premises are situated.
(f) Beneficiary in Possession. Nothing herein contained shall be construed
as constituting Beneficiary a mortgagee in possession in the absence of the actual taking
of possession of the Premises by Beneficiary pursuant to this Deed of Trust.
(g) Relationship of Beneficiary and Trustor. Beneficiary shall in no event
be construed for any purpose to be a partner, joint venturer, agent or associate of Trustor
or of any lessee, operator, concessionaire or licensee of Trustor in the conduct of their
respective businesses, and, without limiting the foregoing, Beneficiary shall not be
deemed to be such partner, joint venturer, agent or associate on account of Beneficiary
becoming a mortgagee in possession or exercising any rights pursuant to this Deed of
Trust, any of the other Loan Documents, or otherwise. The relationship of Trustor and
Beneficiary hereunder is solely that of debtor/creditor.
(h) Time of the Essence. Time is of the essence of the payment by Trustor of
all amounts due and owing to Beneficiary under the Note and the other Loan Documents
and the performance and observance by Trustor of all terms, conditions, obligations and
agreements contained in this Deed of Trust and the other Loan Documents.
(1) No Mercer. The parties hereto intend that the Deed of Trust and the lien
hereof shall not merge in fee simple title to the Premises, and if Beneficiary acquires any
additional or other interest in or to the Premises or the ownership thereof, then, unless a
contrary intent is manifested by Beneficiary as evidenced by an express statement to that
effect in an appropriate document duly recorded, this Deed of Trust and the lien hereof
shall not merge in the fee simple title and this Deed of Trust may be foreclosed as if
owned by a stranger to the fee simple title.
(j) Intentionally Deleted.
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(k) Consent to Jurisdiction. TO INDUCE BENEFICIARY TO ACCEPT
THE NOTE, TRUSTOR IRREVOCABLY AGREES THAT, SUBJECT TO
BENEFICIARY'S SOLE AND ABSOLUTE ELECTION, ALL ACTIONS OR
PROCEEDINGS IN ANY WAY ARISING OUT OF OR RELATED TO THE
NOTE AND THIS INSTRUMENT WILL BE LITIGATED IN COURTS HAVING
SITUS IN CHICAGO, ILLINOIS EXCEPT AS BENEFICIARY DETERMINES
NECESSARY TO ENFORCE THE LIEN OF THIS DEED OF TRUST AND THE
ASSIGNMENT (WHICH ACTION WILL BE LITIGATED IN COURTS HAVING
SITUS IN THE PLACE WHERE THE PREMISES IS LOCATED). TRUSTOR
HEREBY CONSENTS AND SUBMITS TO THE JURISDICTION OF ANY
COURT LOCATED WITHIN CHICAGO, ILLINOIS AND GARFIELD COUNTY,
COLORADO, WAIVES PERSONAL SERVICE OF PROCESS UPON TRUSTOR,
AND AGREES THAT ALL SUCH SERVICE OF PROCESS MAY BE MADE BY
REGISTERED MAIL DIRECTED TO TRUSTOR AT THE ADDRESS STATED
IN THE LOAN AGREEMENT AND SERVICE SO MADE WILL BE DEEMED
TO BE COMPLETED UPON ACTUAL RECEIPT.
(I) Waiver of Jury Trial. TRUSTOR AND BENEFICIARY (BY
ACCEPTANCE HEREOF), HAVING BEEN REPRESENTED BY COUNSEL
EACH KNOWINGLY AND VOLUNTARILY WAIVES ANY RIGHT TO A
TRIAL BY JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR
DEFEND ANY RIGHTS (a) UNDER THIS INSTRUMENT OR ANY RELATED
AGREEMENT OR UNDER ANY AMENDMENT, INSTRUMENT, DOCUMENT
OR AGREEMENT DELIVERED OR WHICH MAY IN THE FUTURE BE
DELIVERED IN CONNECTION WITH THIS INSTRUMENT OR (b) ARISING
FROM ANY BANKING RELATIONSHIP EXISTING IN CONNECTION WITH
THIS INSTRUMENT, AND AGREES THAT ANY SUCH ACTION OR
PROCEEDING WILL BE TRIED BEFORE A COURT AND NOT BEFORE A
JURY. TRUSTOR AGREES THAT IT WILL NOT ASSERT ANY CLAIM
AGAINST BENEFICIARY OR ANY OTHER PERSON INDEMNIFIED UNDER
THIS INSTRUMENT ON ANY THEORY OF LIABILITY FOR SPECIAL,
INDIRECT, CONSEQUENTIAL, INCIDENTAL OR PUNITIVE DAMAGES.
(m) Complete Agreement. This Deed of Trust, the Note, the Loan
Agreement and the other Loan Documents constitute the complete agreement between
the parties with respect to the subject matter hereof and the Loan Documents may not be
modified, altered or amended except by an agreement in writing signed by both Trustor
and Beneficiary.
(n) Revolving Loan. This Deed of Trust is given to secure a revolving credit
agreement. The total amount of Indebtedness may increase or decrease from time to
time, as provided in the Loan Agreement and the Note, and any disbursements which the
Beneficiary may make under this Deed of Trust, the Note or the Loan Agreement or any
other document with respect hereto shall be additional Indebtedness secured hereby. This
Deed of Trust is intended to and shall be valid and have priority over all subsequent liens
and encumbrances, including statutory liens, excepting solely taxes and assessments
levied on the real estate, to the extent of the maximum amount secured hereby.
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38. Assignment of Lease and Rents. Trustor, for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, to secure the Indebtedness, does
hereby absolutely, unconditionally and presently grant, bargain, sell, transfer, assign, convey, set
over and deliver unto Beneficiary all right, title and interest of Trustor in, to and under the
Leases of the Premises, whether now in existence or hereafter entered into, and all guaranties,
amendments. extensions and renewals of said Leases and any of them, and all rents. income and
profits which may now or hereafter be or become due or owing under the Leases. and any of
them, or on account of the use of the Premises. Trustor represents, warrants, covenants and
agrees with Beneficiary as follows:
(a) The sole ownership of the entire lessor's interest in the Leases is vested in
Trustor, and Trustor has not, and shall not, perform any acts or execute any other
instruments which might prevent Beneficiary from fully exercising its rights with respect
to the Leases under any of the terms, covenants and/or conditions of this Deed of Trust.
(b) To Trustor's knowledge, the Leases are and shall be valid and enforceable
in accordance with their terms and have not been and shall not be materially altered,
modified, amended, terminated, canceled, renewed or surrendered, except as approved in
writing by Beneficiary. The terms and conditions of the Leases have not been and shall
not be waived in any manner whatsoever, except as approved in writing by Beneficiary.
(c) Except in accordance with the terms of the Assignment, Trustor shall not
materially alter the term or the amount of rent payable under any Lease.
(d) To the best of Trustor's knowledge, there are no defaults now existing
under any of the Leases and there exists no state of facts which, with the giving of notice
or lapse of time or both, would constitute a default under any of the Leases.
(e) Each of the Leases shall remain in full force and effect irrespective of any
merger of the interest of lessor and any lessee under any of the Leases.
(f) Trustor will not permit any Lease to become subordinate to any lien other
than the lien of this Deed of Trust.
(g) As of the date hereof. Trustor has not entered into any Lease for the
Premises, except those previously disclosed to Beneficiary in writing, or copies of which
have been previously delivered to Beneficiary.
This assignment is absolute, is effective immediately, and is irrevocable by Trustor so
long as the Indebtedness remains outstanding. Notwithstanding the foregoing, until a Notice is
sent to Trustor in writing that an Event of Default has occurred (which notice is hereafter called a
"Notice"), Trustor may receive, collect and enjoy the rents, income and profits accruing from the
Premises.
Upon the occurrence of an Event of Default, Beneficiary may, at its option, after service
of a Notice, receive and collect all such rents, income and profits from the Premises as they
become due. Beneficiary shall thereafter continue to receive and collect all such rents, income
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and profits, as long as such default or defaults shall exist, and during the pendency of any
foreclosure proceedings.
Trustor hereby irrevocably appoints Beneficiary its true and lawful attorney with power
of substitution and with full power for Beneficiary in its own name and capacity or in the name
and capacity of Trustor, from and after service of a Notice, to demand, collect, receive and give
complete acquittances for any and all rents, income and profits accruing from the Premises,
either in its own name or in the name of Trustor or otherwise, which Beneficiary may deem
necessary or desirable in order to collect and enforce the payment of the rents, income and
profits of and from the Premises. Lessees of the Premises are hereby expressly authorized and
directed, following receipt of a Notice from Beneficiary, to pay any and all amounts due Trustor
pursuant to the Leases to Beneficiary or such nominee as Beneficiary may designate in a writing
delivered to and received by such lessees, and the lessees of the Premises are expressly relieved
of any and all duty, liability or obligation to Trustor in respect of all payments so made. The
parties acknowledge and agree that the appointment granted in this paragraph is an irrevocable
power coupled with an interest.
Upon the occurrence of any Event of Default, from and after service of a Notice,
Beneficiary is hereby vested with full power to use all measures, legal and equitable, deemed by
it to be necessary or proper to enforce this Section and to collect the rents, income and profits
assigned hereunder, including the right of Beneficiary or its designee, to enter upon the Premises,
or any part thereof, and take possession of all or any part of the Premises together with all
personal property, fixtures, documents, books, records, papers and accounts of Trustor relating
thereto, and Beneficiary may exclude Trustor, its agents and servants, wholly therefrom. Trustor
hereby grants full power and authority to Beneficiary to exercise all rights, privileges and powers
herein granted at any and all times after service of a Notice, with full power to use and apply all
of the rents and other income herein assigned to the payment of the costs of managing and
operating the Premises and of any indebtedness or liability of Trustor to Beneficiary, including,
but not limited, to the payment of taxes, special assessments, insurance premiums, damage
claims (except to the extent such damages result from the gross negligence or willful misconduct
of Beneficiary), the costs of maintaining, repairing, rebuilding and restoring the Improvements
on the Premises or of making the same rentable, reasonable attorneys' fees incurred in connection
with the enforcement of this Deed of Trust, and of principal and interest payments due from
Trustor to Beneficiary on the Note and this Deed of Trust, all in such order as Beneficiary may
determine. Beneficiary shall be under no obligation to exercise or prosecute any of the rights or
claims assigned to it hereunder or to perform or carry out any of the obligations of the lessor
under any of the Leases and does not assume any of the liabilities in connection with or arising
or growing out of the covenants and agreements of Trustor in the Leases. It is further understood
that the assignment set forth in this Section shall not operate to place responsibility for the
control, care, management or repair of the Premises, or parts thereof, upon Beneficiary, nor shall
it operate to make Beneficiary liable for the performance of any of the terms and conditions of
any of the Leases, or for any waste of the Premises by any lessee under any of the Leases, or any
other person, or for any dangerous or defective condition of the Premises or for any negligence
in the management, upkeep, repair or control of the Premises resulting in loss or injury or death
to any lessee, licensee, employee or stranger. Nothing herein shall be construed as constituting
Beneficiary a mortgage in possession. In the event of any conflict between this Section 38 and
the Assignment, this Section 38 shall govern and control.
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(h) Exculpation. The exculpation provision of paragraph 15 of the Note are
hereby incorporated by reference.
(i} Trustor's Knowledee. For purposes of this Deed of Trust, all references
to "Trustor's knowledge" shall be deemed to mean the actual knowledge of Stephen
Perlmutter.
39. State Specific Provisions. The following terms and conditions are hereby
incorporated into and made a part of this Deed of Trust and to the extent that there are any
inconsistencies between this Section 39 and the remainder of this Deed of Trust, the terms of this
Section 39 shall prevail and control.
(a) In addition to the amounts described in the Granting Clauses, this Deed of
Trust secures future advances up to the total maximum principal amount of S4,000,000
and shall be effective to secure payment of all advances under the Note, this Deed of
Trust and the other Loan Documents, both obligatory and optional, to the same extent and
with the same effect and priority as if such total amount had been fully disbursed on or
before the date of recording of this Deed of Trust. The total amount that may be so
secured may decrease or increase from time to time.
(b) Notwithstanding anything to the contrary in Paragraph 17 and 18 of this
Deed of Trust, Beneficiary shall have the right to exercise any right, power or remedy
provided in this Deed of Trust or any of the other Loan Documents and/or Beneficiary
may foreclose this Deed of Trust, either by judicial action or through a public trustee
foreclosure sale through the Trustee in accordance with the laws and procedures
applicable to foreclosures in Colorado in effect on the date of this Deed of Trust (the
"Local Foreclosure Laws"). Upon the occurrence of any Event of Default, Beneficiary
is authorized and empowered, without further notice, to file with the Trustee, a Notice of
Election and Demand for Sale. in writing, as provided by law. After such filing. the
Trustee may lawfully foreclose and shall foreclose the lien of this Deed of Trust, and sell
and dispose of the Premises in accordance with Local Foreclosure Laws. 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 Premises
obtained by Beneficiary, all costs of any receivership for the Premises advanced by
Beneficiary, all costs of any environmental audits or tests incurred by Beneficiary, all
reasonable attorneys' and consultants' fees incurred by Beneficiary and all other costs and
expenses authorized by applicable law, shall constitute a part of the Indebtedness and
may be included as part of the amount owing from Trustor to Beneficiary at any
foreclosure sale. In addition. if this Deed of Trust is foreclosed by the Trustee, the
Trustee shall allow a reasonable amount of attorneys' fees for services rendered in the
supervision of such foreclosure proceedings as a part of the cost of foreclosure. The
proceeds of any sale under this Paragraph shall be applied first to the fees and expenses
of the Trustee or other officer conducting the sale (all of which shall be part of the
obligations secured by this Deed of Trust), and then to the reduction or discharge of the
Indebtedness in the order Beneficiary may elect; any surplus remaining shall be paid over
to Trustor or to such other person or persons as may be lawfully entitled to such surplus.
Any purchaser at the Trustee's foreclosure sale shall not be responsible for the application
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of the purchase money. Beneficiary may bid at any such foreclosure sale, and in
connection therewith Beneficiary may credit bid all or any portion of the Indebtedness
(including, without limitation, the Trustee's fees and expenses, Beneficiary's reasonable
attorneys' and appraisal fees, all other expenses incurred by Beneficiary in undertaking
the foreclosure and all other costs and expenses authorized by applicable law), and
Beneficiary may purchase all or any part of the Premises at any such foreclosure sale. In
the event of a foreclosure sale, Beneficiary is hereby authorized, without the consent of
Trustor, to assign any and all insurance policies to the purchaser at such sale or to take
such other steps as Beneficiary may deem advisable to cause the interest of such
purchaser to be protected by any of such insurance policies. Nothing in this paragraph or
elsewhere in this Deed of Trust dealing with foreclosure procedures 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.
(c) Notwithstanding anything to the contrary in Paragraphs 17, 18 or 19 of
this Deed of Trust, Beneficiary shall be entitled, as a matter of absolute right and without
regard to the value of any security for the Indebtedness or the solvency of any person
liable therefor, to the appointment of a receiver for the Premises upon ex parte
application to any court of competent jurisdiction. Trustor waives 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 Premises and any businesses
conducted by Trustor or any other person thereon and any business assets used in
connection therewith, (b) to exclude Trustor and Trustor's agents, servants, and
employees from the Premises, (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, (f) to
use all stores of materials, supplies, and maintenance equipment on the Premises and
replace such items at the expense of the receivership estate, (g) to pay all taxes and
assessments against the Premises, all premiums for insurance thereon, all utility and other
operating expenses, and all sums due under any prior or subsequent encumbrance, and
(h) generally to do anything which Trustor could legally do if Trustor were in possession
of the Premises. All expenses incurred by the receiver or his agents shall constitute a part
of the Indebtedness. Any revenues collected by the receiver shall be applied first to the
expenses of the receivership, including reasonable attorneys' fees incurred by the receiver
and by Beneficiary, together with interest thereon at the Default Rate from the date
incurred until repaid, and the balance shall be applied toward the Indebtedness in such
order or manner as Beneficiary may in its sole discretion elect 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 Indebtedness have been discharged in full,
or until title to the Premises has passed after foreclosure sale and all applicable periods of
redemption have expired. The receiver appointed by a court of competent jurisdiction
shall be empowered to issue receiver's certificates for funds advanced by Beneficiary for
the purpose of protecting the value of the Premises as security for the Indebtedness. The
amounts evidenced by receiver's certificates shall bear interest at the Default Rate and
may be added to the cost of redemption if any party redeems the public trustee
foreclosure sale.
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(d) Nothing contained in this Deed of Trust shall be deemed to be a waiver by
Trustor of the provisions of C.R.S. Section 38-38-111.
(e) Nothing contained in this Deed of Trust shall be deemed to be a waiver by
Trustor of the provisions of C.R.S. Section 38-38-104.
(f) Trustor shall 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 Premises, and this provision 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 Trustor or any
other person or entity include all or any portion of the Premises 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 Premises pursuant
to this Deed of Trust or following any foreclosure of this Deed of Trust, and the rights of
any person or entity to whom Beneficiary might transfer the Premises following a
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 imposed, or to be levied or imposed, upon
the Premises or any portion thereof as a result of inclusion of the Premises in such district
or districts.
(g) In addition to those waivers set forth in this Deed of Trust, Trustor waives
all rights to any homestead exemption to which Trustor would otherwise be entitled
under any present or future constitutional, statutory, or other provision of applicable state
or federal law.
(h) As used herein, "Local Foreclosure Laws" shall have the meaning
assigned in subparagraph 39(b) above.
(i) Nothing in this paragraph or elsewhere in this Deed of Trust dealing with
foreclosure procedures 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.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
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[Signature Page to Deed of Trust]
IN WITNESS WHEREOF, Trustor has executed and delivered this Deed of Trust the
day and year first above written.
SLG.LAURENCE, LLC. a Delaware limited
liability company
By: Snowmass Land Company, LLC, a
Delaware limited liability company, its Sole
Member an. Manager
By:
Name: Stephen Perlmutter
Its: Chief Executive Officer
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[Notary Page to Deed of Trust]
STATE OI':(i 3o(4 )
)SS:
COUNTY OF(jx . )
1, ( t`Dh_ , a Notary Public, in and for the County and State aforesaid,
DO HEREBY CERTIFY that Stephen Perlmutter, the Chief Executive Officer of Snowmass
Land Company, LLC, a Delaware limited liability company the sole member and manager of
SLC—Laurence, LLC, a Delaware limited liability company, personally known to me to be the
same person whose name is subscribed to the foregoing instrument, appeared before me this day
in person and acknowledged to me that he/she, being thereunto duly authorized, signed and
delivered said instrument as the free and voluntary act of said limited liability company and as
his/her own free and voluntary act, for the uses and purposes set forth therein.
GIVEN under my hand and notarial seal this 1 ` dad' of December, 2009
My Commission expires:
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Nbtary Public
OFFICIAL SEAL
HEDY DIETZEN
NOTARY PUBLIC - STATE OF ILLINOIS
MIY COMMON EXPIRES:07/27t13
EH it ili`ioicioiJmeinu huirro itomickii
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EXHIBIT A
LEGAL DESCRIPTION
LOTS 5,6,7,8,9,10,16,17,23,24,25 AND 26
THE RANCH AT COULTER CREEK P.U.D. ACCORDING TO THE PLAT THEREOF,
RECORDED JUNE 09, 2004, UNDER RECEPTION NO. 653768.
COUNTY OF GARFIELD
STATE OF COLORADO
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EXHIBIT B
INSURANCE REQUIREMENTS
GENERAL INFORMATION
1. All insurance policies referred to herein shall be in form and substance acceptable
to The PrivateBank and Trust Company ("Bank").
2. Bank must receive evidence/certificates of insurance at least ten (10) business
days prior to closing. Original policies must be provided to Bank as soon as they are available
from insurers. Certified copies should be available within sixty (60) to ninety (90) days.
3. Proof of coverage must be on an ACORD 28 — EVIDENCE OF PROPERTY
INSURANCE form. Liability insurance must be written on ACORD 25S or its equivalent.
NOTE: Please remove any "endeavor to" and "but failure to mail such notice shall impose
....representatives" language as it relates to notices. Initials by an authorized representative
should appear next to any deletions on the certificates.
4. All property policies shall contain a standard mortgage clause in favor of Bank
and shall provide for a thirty (30) day written notice to Bank of any material change or
cancellation. Certificates with disclaimers will NOT be accepted.
5. The Trustor must be the named insured.
6. Property & Builders Risk certificates must show Bank as First Mortgagee and
Loss Payee as follows:
The PrivateBank and Trust Company
120 South LaSalle
Chicago, Illinois 60603
Attention: Jake Noble
(Bank may be shown as "Mortgagee and Loss Payee As Their Interests May Appear" until the
insurance agent receives release of interest from the prior lender. At that time, the insurance
policies will need to be endorsed to show Bank as First Mortgagee and Loss Payee).
7. The insured property must be identified as The Ranch at Coulter Creek, Garfield
County, Colorado.
8. All insurance companies must have a Policy Rating of "A" and a Financial Rating
of "VIII" from AM Best's Rating Guide.
9. The insurance documentation must be signed by an authorized representative of
the Insurer.
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SPECIFIC REQUIREMENTS
1. If the property policy is a blanket policy or limit, Bank must receive a schedule of
the amount allocated to the property/rents or the amounts allocated to the property must be
indicated on the certificate.
2. Coverage must be on an "all risk" (Special Perils), 100% replacement cost basis
without deduction for foundations and footings, and WITHOUT co-insurance. The co-insurance
must be waived or an Agreed Amount endorsement must be included and either "No
Co-insurance" or "Agreed Amount" must be provided and indicated on the certificate.
3. Ordinance or Law coverage providing for demolition and increased cost of
construction, must be provided and indicated on the certificate.
4. Other coverages such as earthquake, boiler and machinery (which includes the
mechanics of the building, such as elevators), and flood will be required when these risks are
present.
5. Rent Loss or Business Income coverage shall be in an amount equal to 100% of
the projected annual rents or revenue with a minimum period of indemnity of 12 months, or such
greater period as Bank may require. This coverage needs to be written on a Gross Rental
Income, Gross Profits or Extended Period of Indemnity form. not on an actual loss sustained
basis which may terminate as soon as the premises are tenantable or operational.
6. Bank must be named as an Additional Insured for all general liability coverage,
with a minimum limit of $2.000,000 for any one occurrence.
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