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HomeMy WebLinkAboutADM070017 4 , TOWN OF VAIL 1,41 ADMINISTRATIVE ACTION FORM Department of Community Development 75 South Frontage Road Vail, CO 81657 tel: 970-479-2138 fax: 970-479-2452 web: www.vailgov.com Project Name: ARRABELLE AIRSPACE LOTS Application Type: CondThPl ADM Number: ADM070017 Parcel: 2101-063-0800-7 Project Description: FINAL APPROVAL FOR A CONDO PLAT REVIEW AT VAIL Participants: OWNER VAIL CORP 11/12/2007 PO BOX 7 VAIL, CO 81658 APPLICANT VAIL CORP 11/12/2007 PO BOX 7 VAIL CO 81658 Project Address: 675 LIONSHEAD PL VAIL Location: 675 LIONSHEAD PLACE Legal Description: Lot 1Block: Subdivision: VAIL LIONSHEAD FIL?jC (n Comments: SEE CONDITIONS BOARD/STAFF ACTION Motion By: Action: STAFFAPR Second By: Vote: Date of Approval: 11/21/2007 Meeting Date: Conditions: Cond: 8 (PLAN): No changes to these plans may be made without the written consent of Town of Vail staff and/or the appropriate review committee(s). Planner: Warren Campbell DRB Fee Paid: $100.00 J r-- Application for Administrative t > Subdivision Plat Review o TOWNOFVAII Department of Community Development z 75 South Frontage Road,Vail, Colorado 81657 tel: 970.479.2139 fax: 970.479.2452 web: www.vailgov.com General Information: G� It is unlawful for any person,business,or corporation to violate any of the provisions of Title 13,Vail Town .I e, or to transfer,sell,lease or agree to sell or lease,any lot,tract,parcel,site,separate interest(including a leasehold interest),interest in common,condominium interest,time-share estate,fractional fee,or time-share license,or any other division within a subdivision within the Town until such subdivision has been approved in writing by the Administrator,Planning and Environmental Commission and/or the Council(whichever is applicable)and a plat thereof recorded in the office of the Eagle County Clerk and Recorder. Type of Application and Fee: ❑ Duplex Subdivision Plat $100 ❑ Administrative Plat Correction $100 ❑ Single Family Subdivision Plat $100 IX Condominium/Townhouse Plat $100 Ua1 ( Sta a r e Description of the Request: 1-0 (U) esfa-1es cz/ov fr-fare 1 of5 any( tk r-eScL /+I k Lot (Alfrs ace Leis --/-1 if l= 2 xI t� P rPca/f, h, LIf I) Location of the Proposal: Lot: f Block: Physical Address: 6, 7 .5-- o 7 5 Leh c i&a r/ pla C e Parcel No ID I p LO) 15 60 I (Contact Eagle Co. Assessor at 970-328-8640 for parcel no.) Zoning: Lio11 sueac7 M%XFd Use. I Name(s)of Owner(s): A r ra h e I/ GS' Ua r l S q cc a Y e L L e Mailing Address: FD 730 9 5 9 a )Oh 6 Q 1(p .2 0 r . e r : 441 Phone: - - 6,5% Owner(s) Signature(s):/ s a; e . I e >I o u _;, t5 '2aa31 ny Me ■ e a^ eit1� e viva ez. Name of Applicant: 5 a in J Ares i de u,s4 e.o 0 Mailing Address: S ce, k- Phone: So_m e. E-mail Address:q br y( ®Lkt;l r es0 t--Is r Fax: 75`f ' .1 SS S For Office U y: Fee Paid: Check No ` By: f Meeting Date: Admin No.: Planner: Project No.: I, ;11 IP cx - aZ F:\cdev\FORMS\Permits\Planning\Administrative_Actions\Plat Review\condo_th_plat.doc Page 1 of 4 12-6-2005 From: cmcelvany @ltgc.com Sent: Wednesday, October 10, 2007 10:11 AM To: Gerry Arnold Subject: Land Title Delivery (ARRABELLE AT VAIL SQUARE)(buyer/ownerARRABELLE)(our 50012342.1) Attachments: 50012342.1-1-Misc.pdf PrigLinked Commitment Delivery Land Title GUARANTEE COMPANY Attached is your Land Title commitment for order number 50012342.1 in Adobe AcrobatTM format. See the bottom of this email for installation instructions and more details. For your convenience, we have a summary of your commitment below. Notice the links within the document; you can click these links and open the associated image. Any text in the Commitment Summary that has been updated or changed appears in a different color. If you have questions regarding any of the links in this email, please contact Vail Title Dept. by calling 970-476-2251. Commitment Summary-ARRABELLE AT VAIL SQUARE (50.012342.1) Your Land Title Guarantee Company Contacts: For Title Assistance: Vail Title Dept. Chris McElvany 108 S FRONTAGE RD W #203 VAIL, CO 81657 Phone: 970-476-2251 Fax: 970-476-4732 cmcelvany @Itggc.com Commitment Delivery Parties: LAND TITLE GUARANTEE COMPANY VAIL ASSOCIATES, INC., A COLO CORP 108 S FRONTAGE RD W #203 PO BOX 7 5., 81658 PO BOX 357 ���YW VAIL CO 8 h VAIL, CO 81657 Attn: GERRY ARNOLD Attn: Karen Biggs Phone: 970-845-2658 !; Phone: 970-476-2251 Fax: 970-845-2555 Fax: 970-476-4534 EMail: gerrya @vailresorts.com EMail: kbiggs@ltgc.com Linked Commitment Delivery Property Address: Arrabelle At Vail Square Vail, CO 81657 Counter Eagle, State of Colorado Legal Description: —i LOT 1, LIONSHEAD SIXTH FILING, ACCORDING TO THE PLAT RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937664, COUNTY OF EAGLE, STATE OF COLORADO. i Effective Date &Time: October 01, 2007 at 5:00 P.M. !j Interest: A Fee Simple Seller(s): Buyer(s)/Borrowers(s) ARRABELLE AT VAIL SQUARE LLC, A COLORADO LIMITED LIABILITY COMPANY i! Proposed Insured &Coverag.es: "ALTA" Owner's Policy 06-17-06 ARRABELLE AT VAIL SQUARE, LLC A COLORADO LIMITED LIABILITY COMPANY Estimated Title Fees: ALTA Owners Policy 06-17-06 (Resale Fee) TBD Total Estimated Title Fees $0.00 ii Requirements: Item (a) Payment to or for the account of the grantors or mortgagors of the full consideration for 11 the estate or interest to be insured. 11 if Item (b) Proper instrument(s) creating the estate or interest to be insured must be executed and 'I duly filed for record, to-wit: I Item (c) Payment of all taxes, charges or assessments levied and assessed against the subject 1 premises which are due and payable. Item (d) Additional requirements, if any disclosed below: THIS COMMITMENT IS FOR INFORMATION ONLY, AND NO POLICY WILL BE ISSUED PURSUANT HERETO. Exceptions: 1 i 11 1. Any facts, rights, interests, or claims thereof, not shown by the Public Records but that could be '1 ascertained by an inspection of the Land or that may be asserted by persons in possession of the Land. q 2. Easements, liens or encumbrances, or claims thereof, not shown by the Public Records. 11 • I+ 3. Any encroachment, encumbrance, violation, variation, or adverse circumstance affecting the Title Ii that would be disclosed by an accurate and complete land survey of the Land and not shown by the 1 Public Records. 11 1I jl is 4. Any lien, or right to a lien, for services, labor or material heretofore or hereafter furnished, 1, imposed by law and not shown by the Public Records. 1i, . ii 5. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in !' the Public Records or attaching to the subsequent effective date hereof but prior to the date the proposed Insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. it . it 6. (a) Taxes or assessments that are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Public Records; (b) f proceedings by a public agency that may result in taxes or assessments, or notices of such l; proceedings, whether or not shown by the records of such agency or by the Public Records. i+ It 1i 7. (a) Unpatented mining claims; (b) reservations or exceptions in patents or in Acts authorizing the':! issuance thereof; (c) water rights, claims or title to water, whether or not the matters excepted 1. under (a), (b), or (c) are shown by the Public Records. �+. ii 1 8. RIGHT OF PROPRIETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE HIS ORE THEREFROM li SHOULD THE SAME BE FOUND TO PENETRATE OR INTERSECT THE PREMISES AS RESERVED IN il UNITED STATES PATENT RECORDED MAY 24, 1904, IN BOOK 48 AT PAGE 503 AND IN UNITED !1 • STATES PATENT RECORDED SEPTEMBER 04, 1923, IN BOOK 93 AT PAGE 98. 9. RIGHT OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES AS RESERVED IN UNITED STATES PATENT RECORDED MAY 24, 1904, IN BOOK 48 AT PAGE■; 503 AND RECORDED SEPTEMBER 4, 1923 IN BOOK 93 AT PAGE 98 AND JULY 13, 1939 IN BOOK 123 AT PAGE 617. 10. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES ON THE :! PLAT OF LIONSHEAD SIXTH FILING RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937664. NOTE: ACKNOWLEDGMENT OF SATISFACTION OF TERMINATION CONDITIONS RECORDED JANUARY •6, 2006 AS RECEPTION NO. 200600396. • it 11. TERMS, CONDITIONS AND PROVISIONS OF LIONSHEAD CORE PROTECTIVE COVENANTS BUT • OMITTING ANY COVENANTS OR RESTRICTIONS, IF ANY, BASED UPON RACE, COLOR, RELIGION, • SEX, SEXUAL ORIENTATION, FAMILIAL STATUS, MARITAL STATUS, DISABILITY, HANDICAP, NATIONAL ORIGIN, ANCESTRY, OR SOURCE OF INCOME, AS SET FORTH IN APPLICABLE STATE OR �! FEDERAL LAWS, EXCEPT TO THE EXTENT THAT SAID COVENANT OR RESTRICTION IS PERMITTED ;■ BY APPLICABLE LAW AS CONTAINED IN INSTRUMENT RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937603. 12. TERMS, CONDITIONS AND PROVISIONS OF CORE SITE DEVELOPMENT AGREEMENT RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937604 AND AMENDMENT THERETO RECORDED j! :NOVEMBER 21, 2005 AT RECEPTION NO. 937605 AND PARTIAL DISCHARGE AND RATIFICATION II • RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937676 AND ACKNOWLEDGMENT RE: EASEMENT TERMS RECORDED NOVEMBER 21, 2005 RECEPTION NO. 937674. 13. TERMS, CONDITIONS AND PROVISIONS OF OPERATING COVENANT AGREEMENT RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937675. it 14. TERMS, CONDITIONS AND PROVISIONS OF CORE SITE LICENSE AGREEMENT RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937673. 15. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT TO LION SQUARE I CONDOMINIUM ASSOCIATIONS RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937647. •16. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT TO THE TOWN OF VAIL RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937648. !" i 17. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT TO THE TOWN OF VAIL 'f RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937649. i! 18. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (UTILITIES AND DRAINAGE) •RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937652 AND AGREEMENT WITH HOLY CROSS i 'ELECTRIC ASSOCIATION, INC. RECORDED NOVEMBER 21, 2005 RECEPTION NO. 937653. 19. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (UTILITIES AND DRAINAGE) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937654. ii 20. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (DRAINAGE) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937655. 'i 21. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (UTITLITIES) RECORDED NOVEMBER 21, 2005.AT RECEPTION NO. 937656. 22. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (UTILITES) RECORDED 'NOVEMBER 21, 2005 AT RECEPTION NO. 937667 AND AGREEMENT WITH HOLY CROSS ELECTRIC ASSOCIATION, INC. RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937668. 23. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (SERVICE AND EMERGENCY ACCESS) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937672. sI tj 24. TERMS, CONDITIONS AND PROVISIONS OF COVENANT GOVERNING EASEMENTS RECORDED iS NOVEMBER 21, 2005 AT RECEPTION NO. 937677. Si ii Si 25. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (ACCESS TO SUBJECT IS PROPERTY) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937632. j i '26. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (ACCESS TO SUBJECT PROPERTY) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937635. si 27. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (TUNNELL ACCESS ss RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937644. i ss ss 28. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (SURFACE ACCESS) ss . RECORDED NOVEMBER 01, 2005 AT RECEPTION NO. 937645. i 29. TERMS, CONDITIONS AND PROVISIONS OF APPARATUS MOVEMENT AGREEMENT RECORDED si JANUARY 23, 2006 AT RECEPTION NO. 200601649. 30. TERMS, CONDITIONS AND PROVISIONS OF CONSRUCTION EASEMENT AGREEMENT RECORDED Si JUNE 01, 2006 AT RECEPTION NO. 200614304. ii si 31. DEED OF TRUST DATED JANUARY 31, 2006 FROM ARRABELLE AT VAIL SQUARE, LLC, A si COLORADO LIMITED LIABILITY COMPANY TO THE PUBLIC TRUSTEE OF EAGLE COUNTY FOR THE is USE OF US BANK NATIONAL ASSOCIATION TO SECURE THE SUM OF$175,000,000.00, AND ANY II OTHER AMOUNTS PAYABLE UNDER THE TERMS THEREOF, RECORDED FEBRUARY 01, 2006, UNDER is RECEPTION NO. 200602695. DISBURSER'S NOTICE IN CONNECTION WITH SAID DEED OF TRUST WAS RECORDED FEBRUARY Si 01, 2006, UNDER RECEPTION NO. 200602697. SS SAID DEED OF TRUST WAS FURTHER SECURED IN ASSIGNMENT OF RENTS RECORDED FEBRUARY j! 01 2006 UNDER RECEPTION NO. 200602696. s! .--.. ttri:PRIMV_=3:1.-sue V,IMA Lw:. t^^tialAtI I IM rr .IT,M, E10,1C .SONESIOW1 .... The above Summary is provided for information purposes only. To the extent that it conflicts with or otherwise varies from the actual commitment provided, the latter shall govern. The above links and associated images are provided for information purposes only. They are not guaranteed as to accuracy, availability or quality. The above Summary is provided for information purposes only. To the extent that it conflicts with, or otherwise varies from, the terms of the attached title commitment, the latter shall govern. The above links, and associated images are provided for information purposes only. They are not guaranteed as to accuracy, availability, or quality. The attached document is a PDF (Portable Document Format) file and can be viewed or printed with Adobe Acrobat ReaderTM' IIf you do not have Adobe Acrobat ReaderTM on your system, you can download it for free from Adobe. Some of these documents may be designed to print on LEGAL paper. To print these on LETTER paper, select the "Fit to Page" option from within the Acrobat Reader. If you want to print on LEGAL paper, select legal-size paper from within the "Print Setup" dialog box from within the Acrobat Reader. Content in this email is Copyright © LT Systems, L.L.C. All rights reserved. 1 ******************************************************************************************** TOWN OF VAIL, COLORADO Statement ******************************************************************************************** Statement Number: R070002505 Amount: $100.00 11/12/200704:28 PM Payment Method: Check Init: JS Notation: 3179/ARNOLD Permit No: ADM070017 Type: Administrative Parcel No: 2101-063-0800-7 Site Address: 675 LIONSHEAD PL VAIL Location: 675 LIONSHEAD PLACE Total Fees: $100.00 This Payment: $100.00 Total ALL Pmts: $100.00 Balance: $0.00 ******************************************************************************************** ACCOUNT ITEM LIST: Account Code Description Current Pmts PV 00100003112500 Administrative Fee 100.00 3 DRAFT November 8,2007 DRAFT RECIPROCAL EASEMENTS AND COVENANTS AGREEMENT BETWEEN ARRABELLE AT VAIL SQUARE, LLC,A COLORADO LIMITED LIABILITY COMPANY, AS "PROJECT OWNER" AND ARRABELLE AT VAIL SQUARE,LLC,A COLORADO LIMITED LIABILITY COMPANY, AS "AIRSPACE LOT OWNER" FOR ARRABELLE AT VAIL SQUARE 625376.15 AKHANS 1 1/9/07 2:11 PM TABLE OF CONTENTS Page 1. Definitions 2 2. Airspace Lot Owner Easements 5 3. Alterations 8 4. Project Owner Rights and Easements 9 5. Use Restrictions 10 6. Expenses 15 7. Operation, Maintenance and Repairs 19 8. Insurance 21 9. Casualty and Condemnation 22 10. Indemnification 24 11. total casualty 24 12. Mechanic's Liens 25 13. Airspace Lot Owners' Acknowledgements and Waivers 26 14. Hospitality Services; Third-Party Service Providers 28 15. Lionshead Redevelopment 28 16. No View Easement 29 17. Tax Parcels 29 18. Small Planned Community Exemption 29 19. Condominiumization Of Airspace Lot 30 20. Remedies 30 21. Attorneys' Fees 30 22. Run with the Land 30 23. Estoppels and Confirmations 31 24. Term; Amendment 31 25. Business Days;Notices 31 26. Severability 32 27. Captions; Gender 32 28. No Public Dedication 32 29. Governing Law 32 30. Integration 32 31. No Merger Of Interests 33 625376.15 AKHANS 11/9/07 2.11 PM RECIPROCAL EASEMENTS AND COVENANTS AGREEMENT THIS RECIPROCAL EASEMENTS AND COVENANTS AGREEMENT (this "Agreement") is made as of the day of , 200 , by and between ARRABELLE AT VAIL SQUARE, LLC, a Colorado limited liability company, as owner of the "Project Lot" (as defined below) (the "Project Owner"), and ARRABELLE AT VAIL SQUARE, LLC, a Colorado limited liability company, as owner of the "Airspace Lot" (as defined below) (the "Airspace Lot Owner"). RECITALS A. Certain real property located in Eagle County, Colorado was legally subdivided pursuant to the Condominium Plat for Vail Square (the "Plat") recorded in the real property records of Eagle County, Colorado (the "Records") on , 200 , at Reception No. . Pursuant to the Plat, certain airspace located within the real property subjected to the Plat was defined and legally established as six severed and independent property interests each in the form of an "estate above the surface" as authorized under Section 38-32-101, et seq., C.R.S. (collectively, the "Airspace Lot"). The remainder of the property subjected to the Plat is a single, subdivided lot(the "Project Lot"). B. The Project Lot is legally described on the attached Exhibit A and is owned by the Project Owner. The Airspace Lot is legally described on the attached Exhibit B and is owned by the Airspace Lot Owner. C. A mixed-use development which contains, as of the date of this Agreement, among other things, a hotel and related amenities, restaurants, a plaza area with ice skating rink, retail space, a parking garage and skier services is located on the Project Lot (the "Project Improvements"). The Airspace Lot contains a combination of residential dwellings and individual sleeping rooms attached to some of the residential dwellings (the "Airspace Improvements"). Although the Airspace Lot is physically surrounded by the Project Improvements and the Project Lot, except as otherwise specifically provided in this Agreement, the terms "Project Improvements" and "Project Lot" do not include the Airspace Lot or the Airspace Improvements. In addition, although portions of the "Project Structure" and the "Project Service Elements" (as both terms are defined below) pass through the Airspace Lot pursuant to easements granted herein, the Project Structure and the Project Service Elements are not a part of the Airspace Lot, but rather are a part of the Project Improvements and owned by the Project Owner. D. The Project Owner and the Airspace Lot Owner now desire to enter into this Agreement in order to (i) establish certain easements benefiting the Airspace Lot and the Airspace Lot Owner and burdening the Project Lot; (ii) establish certain easements benefiting the Project Lot and the Project Owner and burdening the Airspace Lot; (iii)provide an allocation of responsibilities and costs between the Project Owner and the Airspace Lot Owner that are associated with ownership of the Airspace Lot and the Project Improvements; and (iv) otherwise regulate the use and enjoyment of the Airspace Lot and the Project Improvements to the extent provided for and in accordance with the terms of this Agreement. 625376.15 AICHANS 11/9/07 2:11 PM AGREEMENT NOW, THEREFORE, pursuant to and in furtherance of the foregoing recitals, and in consideration of the mutual covenants and agreements set forth in this Agreement, the Project Owner and the Airspace Lot Owner covenant and agree as follows: 1. DEFINITIONS. The following terms as used in this Agreement have the meanings set forth below. (a) "Agreement" means this Reciprocal Easements and Covenants Agreement, as amended from time to time. (b) "Amenity Access Fee" is defined in Section 6(b). (c) "Airspace Improvements" is defined in Recital C. (d) "Airspace Lot" is defined in Recital C. (e) "Airspace Lot Owner" means Arrabelle at Vail Square, LLC, a Colorado limited liability company, as owner of the Airspace Lot, and its successors in title to the Airspace Lot. (f) "Airspace Lot Owner Easements" means those easements created pursuant to Section 2. (g) "Alteration" means any alteration, modification or construction to the Airspace Improvements, but excluding any cosmetic changes to the Airspace Improvements. (h) "Amenities" means the Rooftop Pool, the Ice Rink, the Spa, the Business Center and the Great Room, as such improvements may exist from time to time. (i) "Association" is defined in Section 19. (j) "Business Center" means the business facility (including fax machines, computers, copy machines, and similar equipment) located on the first level of the Project. (k) "Capital Payments" means those payments that the Airspace Lot Owner is required to make to the Project Owner pursuant to Section 6(g). (1) "Capital Project" is defined in Section 6(g). (m) "CCIOA" means the Colorado Common Interest Ownership Act, Section 38-33.3-101, et seq., C.R.S., as amended from time to time. (n) "Claims" is defined in Section 10. (o) "Commercial/Hotel Activities"is defined in Section 13(a)(iii). (p) "Construction Activities" is defined in Section 13(a)(ii). 625376 15 AKHANS 11/9/07 2:11 PM 2 (q) "Direct Expenses" means those expenses related to the Airspace Lot and Airspace Improvements that the Airspace Lot Owner is responsible for paying pursuant to Section 6(a). (r) "Estimated Annual Operating Costs" is defined in Section 6(b). (s) "Expense Lien" is defined in Section 6(h). (t) "Expense Payments" means those payments that the Airspace Lot Owner is required to make to the Project Owner pursuant to Section 6(b). (u) "Great Room" means the large room located on the second level of the Project that is generally open to guests of the Hotel as a gathering place and that may also be closed from time to time for private functions. To the extent the Great Room is being utilized for a private function, it will not be open to guests of the Hotel or the Airspace Lot Owner. (v) "Hotel"means the hotel located in the Project Improvements. (w) "Ice Rink" means the ice skating rink located within the plaza area on the Project Lot. (x) "Liened Owner" is defined in Section 12. (y) "Lionshead Properties" means other properties located adjacent to and nearby the Project. (z) "Lionshead Redevelopment" is defined in Section 15. (aa) "Master Plan" means the Lionshead Redevelopment Master Plan, as amended from time to time, or any other master plan approved by the Town applicable to all or any portion of the Lionshead Properties. (bb) "Motor Vehicle" means a fully functional and operable non-commercial passenger motor vehicle, such as a car, truck or sport utility vehicle. The term "Motor Vehicle" does not include any commercial vehicles, boats, motor homes, trailers or other recreational vehicles, or any abandoned, inoperable or unlicensed motor vehicle. (cc) "Mountain Activities" is defined in Section 13(a)(i). (dd) "Mountain Recreational Areas" is defined in Section 13(a)(i). (ee) "Operating Costs" is defined in Section 6(b). (ff) "Parking Rights" is defined in Section 2(a)(iii). (gg) "Party" or"Parties"means either or both parties to this Agreement. (hh) "Permitted Exceptions" are those matters appearing on Exhibit D. 625376.15 AK 3 11/9/07 2:11 PM ',. (ii) "Permittees" means the agents, employees, contractors, licensees, guests and invitees of the Party, person or entity referenced. (jj) "Project"means, collectively, the Project Lot and the Project Improvements. (kk) "Project Improvements" is defined in Recital C. (11) "Project Lot" is defined in Recital C. (mm) "Project Owner" means Arrabelle at Vail Square, LLC, a Colorado limited liability company, as owner of the Project, and its successors in title to the Project Lot. (nn) "Project Service Elements" means all shafts, chutes, flues, ducts, vents, chases, pipes, wire, conduits, utility lines or telecommunications, cable television hardware and lines, telephone, television, security or similar lines or equipment that (a) serve the Project, regardless of whether located within the Project Lot or the Airspace Lot; or (b) are located within the Project Lot, regardless of whether they serve either the Project Improvements or the Airspace Improvements exclusively or serve both. (oo) "Project Structure" means those portions of the Project Improvements that constitute the structural support and building enclosure systems, including, by way of example only and without limitation, bearing walls, bearing columns, structural slabs and decks for floors, ceilings or roofs, structural girders, beams and joists, and foundations and footings. In addition, all doors and windows, including glazing, sashes, frames, sills, thresholds, hardware, flashing and other components of those doors and windows in the boundary walls of any portion of the Airspace Improvements, are part of the Project Structure and are not part of the Airspace Improvements. (pp) "Qualified Appraiser" means an MAI real estate appraiser, or the equivalent thereof at that time, who has at least 10 years' experience in appraising real property similar to the Airspace Lot, and who is familiar with real property sales and appraisal practices in Eagle County, Colorado. (qq) "Records" is defined in Recital A. (rr) "Responsible Owner" is defined in Section 12. (ss) "Rooftop Pool" means the swimming pool,hot tub(s) and related facilities located on the roof of the Project at the fourth level. (tt) "Rules" means any reasonable rules and regulations adopted by the Project Owner with respect to conduct or activity within the Project. (uu) "Spa" means the spa and fitness facilities located on the first level of the Project. (vv) "Storage Areas" is defined in Section 2(a)(v). 625376 15 AKHANS 11/9/07 2 11 PM 4 (ww) "Terraces" means the balconies, decks and terraces which adjoin and are accessible from the interior of the Airspace Lot, as exist as of the date of this Agreement and as may be replaced from time to time by the Project Owner from time to time, and all airspace immediately above any such balcony, deck or terrace from its finished floor surface to the lower of 10 feet above its finished floor surface or the underside of any soffit or other portion of the exterior of the Project Improvements that projects over such balcony, deck or terrace. The Terraces are part of the Project Improvements. (xx) "Total Casualty" is defined in Section 11(a). (yy) "Town" means the Town of Vail, Colorado. (zz) "Year Round Parking Rights" is defined in Section 2(a)(iii). F 2. AIRSPACE LOT OWNER EASEMENTS. (a) Easements and Licenses. The Project Owner hereby grants and conveys to the Airspace Lot Owner the following non-exclusive easements, licenses and interests (collectively, the"Airspace Lot Owner Easements"): (i) Vehicular Access Easements. An easement for the benefit of the Airspace Lot Owner, its tenants and their respective Permittees through, on or in those portions of the Project, including without limitation, all private drives, roads and sidewalks, as may be reasonably necessary to gain vehicular and pedestrian access between the Project Improvements and the public roads and rights-of-way adjoining the Project Improvements. (ii) Pedestrian Access Easement. An easement for the benefit of the Airspace Lot Owner, its tenants and their respective Permittees as may be reasonably necessary for access to and from the Airspace Lot and the Storage Areas (a)through, on or in the common corridors, hallways, entrances and lobbies located within the Project a; Improvements; (b) via the elevators and escalators within the Project Improvements except any elevators specifically designated as elevators for Project employees or operations and not generally open for public use; and (c) via all stairs and stairwells throughout the Project Improvements. (iii) Parking Rights. A license for the benefit of the Airspace Lot Owner, its tenants and their respective Permittees to park 91 Motor Vehicles within the portion of the Project Improvements designated from time to time by the Project Owner (the "Parking Rights"). The Parking Rights may be used by the Airspace Lot Owner, its tenants and their respective Permittees only at those times when the Airspace Lot Owner, its tenants and their respective Permittees are in residence within the Airspace Lot. To the extent the Airspace Lot Owner, its tenants and their respective Permittees are not in residence within the Airspace Lot, the Airspace Lot Owner, its tenants and their respective Permittees may not use the Parking Rights and the Project Owner may utilize any parking spaces within the Project Improvements that otherwise would be used to satisfy the Parking Rights. Notwithstanding the foregoing, the Airspace Lot Owner may store up to 25 Motor Vehicles within the Project Improvements, regardless of whether in 625376 15 AKHANS 11/9/07 2:11 PM 5 residence within the Airspace Lot (the "Year Round Parking Rights"). All Parking Rights, including Year Round Parking Rights, may be exercised by the Airspace Lot Owner, its tenants and their respective Permittees only through the use of valet service provided by the Project Owner in connection with the operation of the Project Improvements, except for those times when the Project Owner, in its sole discretion and in accordance with applicable laws (including, without limitation, the Americans with Disabilities Act), permits or requires the Airspace Lot Owner, its tenants or their respective Permittee, to self-park in the Project Improvements. In no event will the Airspace Lot Owner be allowed to demand or require self-parking. Accordingly, in connection with any Year Round Parking Rights, the Airspace Lot Owner will be required to leave keys for such Motor Vehicles with the Project Owner. The Airspace Lot Owner acknowledges and agrees that the cost of providing valet service will be included in the Operating Costs. (iv) Amenities Easement. An easement for the benefit of the Airspace Lot Owner and members of the Airspace Lot Owner's immediate family (i.e., spouse and non-adult children) over the Project Improvements as reasonably necessary for access to and from and use of the Amenities. By taking title to the Airspace Lot, the Airspace Lot Owner acknowledges and agrees that the Project Owner may alter, abandon, or relocate any or all of the Amenities from time to time, in its sole and absolute discretion, and that this easement will continue only for so long as the Amenities exist. Except for those facilities expressly included in the definition of "Amenities," no other Project Improvements or facilities are included and no facilities added to the Project by the Project Owner in the future shall be included in the definition of "Amenities" unless expressly provided for in a written amendment to this Agreement. The Airspace Lot Owner will abide by all Rules regarding use of the Amenities imposed by the Project Owner from time to time, including paying any charge for services provided in the Spa, Business Center and Great Room, so long as such charges are the same as Hotel guests are charged. If the Airspace Lot Owner fails to abide by such Rules, the Project Owner may, in addition to and without waiving any other remedies available to it, restrict the Airspace Lot Owner's access to any or all of the Amenities, in accordance with its normal procedures under such circumstances. The Project Lot Owner may from time to time allow (but is not obligated to allow) the Airspace Lot Owner's Permittees to access and use the Amenities, subject to payment of a daily access charge. In the event that the Airspace Lot Owner is 60 or more days delinquent in the payment of any Expense Payment or Capital Payment, the Project Owner, in addition to and without waiving any other remedies available to it, may restrict the Airspace Lot Owner's access to any or all Amenities. (v) Storage Easement. An easement for the benefit of the Airspace Lot Owner, its tenants and their respective Permittees to use and occupy those storage areas located within the Project Improvements as depicted on the attached Exhibit C (the "Storage Areas"). In no event may any hazardous or toxic waste, substances or materials or any highly-flammable materials or substances (such as gasoline) be stored or placed in any Storage Areas. Without limiting the Project Owner's general power to adopt Rules, the Airspace Lot Owner specifically acknowledges and agrees that the Project Owner may adopt Rules from time to time further regulating the use of the Storage Areas. 625376.15 AKHANS 11/9/07 2:11 PM 6 (vi) Utility Easement. An easement for the benefit of the Airspace Lot Owner, its tenants and their respective Permittees over and across any Project Service Elements as may be reasonably necessary for the continuance of utility services, plumbing services, sanitary and storm sewer services, water supply, telecommunications and other services to the Airspace Improvements. (vii) Structural Easements. (1) An easement for the benefit of the Airspace Lot Owner over and across the Project Structure, including without limitation, the exterior enclosure system and roof of the Project Improvements, as may be reasonably necessary for adequate enclosure against the elements and structural support of the Airspace Improvements, and any portion of the Project Improvements with respect to which an easement is granted pursuant to this Agreement. (2) An easement for the benefit of the Airspace Lot Owner, its tenants and their respective Permittees over and across the Terraces as may be reasonably . necessary for the use and enjoyment of the Terraces. (viii) Easement for Encroachments. An easement for the benefit of the Airspace Lot Owner over and across the Project Improvements as may be reasonably necessary to permit any encroachments of the Airspace Improvements upon any part of the Project Lot resulting from the construction, reconstruction, shifting, settlement, restoration, rehabilitation, alteration or improvement of the Airspace Improvements or any portion of them, assuming that the Airspace Improvements (or portions thereof) are reconstructed or restored as nearly as possible to their original design and condition. This easement will continue for so long as the encroachment exists and will burden the portion of the Project Lot encroached upon and benefit the encroaching portion of the Airspace Improvements at no additional cost or expense to the Airspace Lot Owner. No easement exists for any encroachment that is materially detrimental to or interferes with the reasonable use and enjoyment of the portion of the Project Lot burdened by the encroachment. (b) Use of Airspace Lot Owner Easements. (i) The Airspace Lot Owner Easements are for passive use and enjoyment only and do not extend to or allow repair, maintenance or alteration of any portion of the Project Improvements which is encumbered by or the subject of such Airspace Lot Owner Easement. (ii) The Airspace Lot Owner Easements may be used and enjoyed only in accordance with and subject to all the other provisions of this Agreement governing and limiting the same. Without limitation on the generality of the foregoing, the Airspace Lot and the Airspace Lot Owner Easements may be used, enjoyed, occupied and maintained only for residential purposes and in accordance with the Permitted Exceptions, all applicable laws and any Rules adopted by the Project Owner from time to time. Without limiting the foregoing, the Airspace Lot and Airspace Lot Owner Easements may not be 625376.15 AKHANS 11/9/07 2:11 PM employed for any use or purpose that constitutes an unusual fire hazard, would result in jeopardizing any insurance maintained on any part of the Project Improvements, or would result in any increase in the premiums for such insurance, or which would constitute a public or private nuisance or give rise to any noxious noises or odors that on an ongoing basis materially interfere with the ordinary use and enjoyment of any portion of the Project Improvements. (iii) Nothing in this Agreement will be interpreted to grant to the Airspace Lot Owner the right to make any alterations or attachments of any sort to the Project Structure or exterior of the Project Improvements (including, without limitation, the Terraces) or in any way modify the Project Improvements without the prior written approval of the Project Owner, which may be granted or denied in the Project Owner's sole and absolute discretion. 3. ALTERATIONS. The Airspace Lot Owner will not undertake any Alteration without first obtaining the written approval of the Project Owner. Cosmetic changes that do not constitute Alterations do not need the prior approval of the Project Owner; provided, however, that the Airspace Lot Owner will notify the Project Owner prior to commencing such work. The Airspace Lot Owner will provide the Project Owner with written notice of its plans to undertake an Alteration, along with all details regarding such Alteration, including, without limitation, any plans and specifications for such Alteration. Within 30 days after receipt of such notice, the Project Owner will grant, condition or withhold its approval for the Alteration, in its sole and absolute discretion. If such Alteration is approved by the Project Owner, in addition to any other conditions that the Project Owner may impose, the Airspace Lot Owner will comply with the following provisions: (a) The Airspace Lot Owner will obtain all necessary permits and governmental authorizations for the Alteration; (b) The Alteration and the construction of it will comply with all applicable zoning and building codes and other applicable laws, ordinances and restrictive covenants; (c) The Airspace Lot Owner will cause the Alteration to be constructed and completed diligently, in a good and workmanlike manner, and free and clear of all mechanics' and materialmen's liens and other claims; (d) The Airspace Lot Owner will cause the Alteration to be constructed and completed in a manner that does not impair or diminish the support of any portion of Airspace Improvements, the Project Structure or any other portion of the Project Improvement, including, without limitation, any acoustical separation assemblies or other components designated to mitigate the transmission of sound through walls and other physical separations; (e) During the construction process, the Airspace Lot Owner will, to the extent consistent with good construction practice, keep the area affected in a safe, neat and clean condition; (f) The Airspace Lot Owner will minimize any impact from the construction process on the Project Improvements; and 625376.15 AKHANS 11/9/072:11 PM 8 (g) The Airspace Lot Owner will reimburse the Project Owner for all costs incurred by the Project Owner in connection with the Alteration, such as the increase in costs of trash removal due to the performance of the Alteration work. In the event the Airspace Lot Owner fails to comply with any of the above requirements or any of the requirements of the Project Owner's approval, after 24-hours prior written notice to the Airspace Lot Owner, the Project Owner may suspend the Airspace Lot Owner's work on such Alteration until such time as the Airspace Lot Owner complies with such requirement. Without limiting the foregoing and regardless of whether any wallboard, plasterboard or other materials which form part of any required, fire-separation assembly is part of the Project Improvements or the Airspace Improvements, the Airspace Lot Owner may not remove, penetrate or do anything to otherwise impair the fire-separation capability of such materials or assemblies without the prior specific, written approval of the Project Owner, which may be granted or denied, in the Project Owner's sole and absolute discretion. 4. PROJECT OWNER RIGHTS AND EASEMENTS. (a) Project Owner Rights. The Airspace Lot Owner Easements are non-exclusive and at all times are subject to the Project Owner's rights with regard to the Project Improvements, including without limitation, the Project Owner's rights to adopt Rules. The Project Owner retains and reserves all rights to use, occupy, maintain, repair, replace, reconfigure, operate and enjoy the Project Improvements. The Project Owner's reserved rights in this regard specifically include, without limitation, the following rights and interests, for the benefit of the Project Owner, any tenants or occupants of the Project Improvements claiming by, through or under the Project Owner, and their respective Permittees: (i) The right to use and enjoy the Project Improvements for their intended purposes and to operate the Hotel and related amenities within the Project Improvements in a manner determined by the Project Owner, in its sole and absolute discretion; (ii) The right of access to and from any part of the Project Improvements; (iii) The right for the use, enjoyment, maintenance, repair, replacement, improvement and preservation of the Project Service Elements and all portions of the Project Structure; (iv) The restriction that the Airspace Lot Owner has no right to modify or alter the Airspace Lot, the Terraces or the Project Improvements except as expressly permitted by this Agreement; and (v) An easement for the benefit of the Project Owner over and across the Airspace Lot as may be reasonably necessary to permit any encroachments of the Project Improvements, including, without limitation, the Project Structure and the Project Service Elements, upon any part of the Airspace Lot resulting from the construction, reconstruction, shifting, settlement, restoration, rehabilitation, alteration or improvement of the Project Improvements or any portion of it, assuming, in the case of reconstruction, that the Project Improvements (or portion thereof) are reconstructed or restored as nearly as possible to the original design and condition. This easement will continue for so long 625376.15 AKHANS 11/9/07 2 11 PM 9 as the encroachment exits and will burden the portion of the Airspace Lot encroached upon and benefit the encroaching portion of the Project Improvements at no additional cost or expense to the Project Owner. (b) Entry into Airspace Lot. Except as provided for above, these reserved rights and interests in favor of the Project Owner do not extend to the Airspace Lot; provided, however, that the Project Owner has and retains an irrevocable easement to access the Airspace Lot as may be reasonably necessary or appropriate in order to operate and perform inspections, maintenance, repairs, improvements, replacements and restorations for the Project Improvements, as provided for in this Agreement, including, without limitation, any entry into the Airspace Improvements necessary to maintain the clock tower forming a part of the Project Improvements and the Terraces, and any entry as necessary to prevent damage or injury to any or all of the Project Improvements. This irrevocable license for entry will inure to the benefit of the Project Owner and its Permittees, and runs with the Project Lot as an appurtenance benefiting the ownership of the Project Lot. The Airspace Lot Owner's right to occupy the Airspace Lot is exclusive as against the Project Owner and anyone claiming by, through, or under the Project Owner, subject only to the foregoing irrevocable license and the express limitations on the rights of the Airspace Lot set forth elsewhere in this Agreement. (c) Modifications to Project Improvements. The Project Owner at its election may make any alterations, modifications or improvements to the Project Improvements that the Project Owner deems appropriate, in its sole and absolute discretion; provided, however, that such alterations, modifications or improvements may not materially impair the benefits which the Airspace Lot Owner derives from the ordinary use and enjoyment of the Airspace Lot Owner Easements. The foregoing limitation shall not impact or impair the Project Owner's rights under Section 2(a)(iv) with regard to the Amenities. Notwithstanding the foregoing, the Project Owner may use and operate all Project Service Elements and related equipment as presently configured and located within the Project Improvement (and replacements thereof), and may complete any remaining work for the Project Improvements in substantial conformity with the currently existing plans and specifications for the Project Improvements. (d) Liquor Licensing. For all purposes relating to the licensing for alcoholic beverage possession and service under applicable state and local laws, the Project Owner and the Airspace Lot Owner hereby agree that the Project Owner is deemed to have retained possession and control of the Airspace Lot, which possession and control may be assigned by the Project Owner to any lessee or manager of the Hotel from time to time without the consent of or notice to the Airspace Lot Owner. 5. USE RESTRICTIONS. (a) Permitted Uses. All or any portion of the Airspace Lot may be occupied and used only for (i) residential uses and uses incidental to them; (ii) long term and short term rentals of individual residential dwellings or sleeping rooms located within the Airspace Lot for residential and lodging purposes, to the extent permitted by applicable zoning laws; and (iii)home occupations permitted by applicable zoning laws, so long as that use is incidental to the residential use of the applicable residential dwelling located within the Airspace Lot, does not materially increase the use of elevators, lobbies or other public areas in the Project 625376.15 AKHANS 11/9/07 2:11 PM 10 Improvements, and is not advertised or identified by signage on or any directory in the Project Improvements. (b) Prohibited Uses. In addition to the other restrictions contained elsewhere in this Agreement, the occupation and use of the Airspace Lot by the Airspace Lot Owner, its tenants and their respective Permittees is subject to the following restrictions: (i) Commercial Purposes. Except as otherwise provided for in Section 5(a), the Airspace Lot may not be used for commercial purposes. (ii) Timeshares. The Airspace Lot, or any portion thereof, may not be used for the creation of any "time share estate" as defined in C.R.S. § 38-33-110 or in or as a part of any other time share, interval ownership, vacation club, or similar estate or interest, no matter how described or classified, by which a purchaser, investor, tenant or licensee obtains the right to exclusive use of all or any portion of the Airspace Lot on a recurring basis for a certain period of time or has the right, as a member of a vacation or similar club or organization, to make reservations to use a portion of the Airspace Lot, as a result of membership in such vacation club or similar organization. The foregoing restriction shall not be interpreted to apply to private luxury residence clubs which provide for a refund right to their members and provide access to such members based on a space available/first-come, first-served reservation system. In addition, this provision shall not apply to any private luxury residence club which is in receipt of written confirmation from the Colorado Real Estate Commission that the provisions of Sections 38-33-110 and 39-33-111, C.R.S. do not apply to such private luxury residence club. (iii) Insurance Risks. The Airspace Lot may not be used for any use which would constitute an unusual fire hazard, would result in jeopardizing any insurance maintained on any part of the Project Improvements or would result in any increase in the premium for that insurance. (iv) Overloading. The Airspace Lot may not be used for any use beyond the maximum loads the floors of the Project Improvements are designed to carry and no apparatus, equipment, fixtures or other property of any nature may be located within the Airspace Lot if the same, singularly or in the aggregate, would violate the maximum loads that the structural flooring in the Airspace Lot is designed to support. Further, the Airspace Lot may not be used for any use which would place any extraordinary burden on any portion of the Project Improvements. (v) Nuisance. The Airspace Lot may not be used for any use (1) constituting a public or private nuisance; (2) consisting of the manufacture of any product; or(3)which causes undue odor, noise, vibration or glare, including, without limitation, the use of any equipment or machine. (vi) Violation of Law. No portion of the Airspace Lot may be used for any use which violates any law, statute, ordinance, rule, regulation or order of any is governmental authority having jurisdiction over the Airspace Lot, including, without 625376.15 AKHANS 11/9/072:11 PM 11 limitation, any of them that regulate or concern hazardous or toxic waste, substances or materials. (c) Manner of Use. The occupation and use of the Airspace Lot by the Airspace Lot Owner, its tenants and their respective Permittees is subject to the following restrictions: (i) Building Control and Rights of Entry. The Airspace Lot Owner, its tenants, and their respective Permittees may enter and exit the Airspace Improvements at any time. Notwithstanding the foregoing, outside of regular business hours for the Project Improvements as set by the Project Owner in its sole and absolute discretion, the Airspace Lot Owner, its tenants, and their respective Permittees may be required to provide identification or use an access card, access code or a similar security device in order to gain entry to the Airspace Improvements and the Project Improvements. Any such actions on the part of the Project Owner shall not be deemed under any circumstances as an undertaking by the Project Owner to guarantee the safety and security of the Airspace Lot Owner, its tenants and their respective Permittees or the security of the property of such persons. The Project Owner disclaims all responsibility to ensure the security and safety of persons and property within the Project Improvements and Airspace Improvements and no person shall be entitled to rely upon such security or access control devices within the Project Improvements as a guarantee of safety and security. (ii) Deliveries. All delivery services, including, but not limited to, those of packages, overnight mail, take-out food, floral deliveries and similar types of deliveries, delivering items to the Airspace Lot are required to enter and exit the Airspace Lot through the loading dock located on the Project Lot during normal operating hours as established by the Hotel operator. Personnel at the loading dock will notify the intended recipient of the delivery. (iii) Large Deliveries/Moving Procedures. When delivering or moving large items to and from the Airspace Lot, such as furniture, only the freight elevator will be used. All such delivery or moving must be coordinated with the Hotel operator prior to such activity. (iv) Minimum Heating. The Airspace Lot must be heated as necessary to maintain a minimum temperature of 55 degrees Fahrenheit from October 1 through May 30 every year. (v) Pets. No animals, livestock, insects, rodents, poultry, reptiles, birds or other pets may be kept within the Airspace Lot, except for two usual and ordinary domestic household pets (e.g., a dog, cat, small bird kept in a cage or a similar pet) per residential dwelling constructed within the Airspace Lot. No pet may be kept, bred or maintained for any commercial purpose. If a pet becomes obnoxious to the Project Owner, its tenants or their respective Permittees, the Airspace Lot Owner or the person having control over the animal will be given a written notice to correct the problem. If such problem is not corrected, the Airspace Lot Owner, upon written notice from the Project Owner, may be required to remove the animal from the Airspace Lot. The 625376 15 AKHANS 1 1/9/07 2:11 PM 12 Airspace Lot Owner, its tenants or their respective Permittees having control over the pet are responsible for cleaning up after the pet and will hold the Project Owner harmless from any liability, claim, damage, cost or expense resulting from any action of their pet. At any time a pet is outside the Airspace Lot, it must be accompanied by its owner and on a leash and otherwise under the control of its owner. (vi) Doors. The Airspace Lot Owner, its tenants, and their respective Permittees may not change the lock on any door forming the boundary between the Airspace Lot and the Project Lot, which the parties acknowledge and agree is a part of the Project Lot. The Airspace Lot Owner, its tenants, and their respective Permittees may not change any door forming the boundary between the Airspace Lot and the Project Lot, nor the lock, lock plate, or number signage on any such door. No additional locks may be affixed to doors forming the boundary between the Airspace Lot and the Project Lot. No decorations of any kind may be placed on or around any door forming the boundary between the Airspace Lot and the Project Lot, including, without limitation, doormats, welcome mats, wreaths or other decorations. (vii) Window Coverings. The back or window-side of all window coverings in the Airspace Lot, including, without limitation, drapes, curtains, blinds and shutters, must be backed, painted, or be of a material that is white. (viii) Windows and Glass Doors. No windows or glass doors forming the boundary between the Airspace Lot and the Project Lot, which the parties acknowledge and agree are a part of the Project Lot, may have any reflective or tinted substance placed on them. No unsightly materials may be placed on any such window or glass door or be visible through such window or glass door. (ix) Signs and Flags. No signs, flags, banners, pennants or similar items may be displayed to the public view on or from the Airspace Lot or the Terraces without the Project Owner's prior written approval, which may be granted, denied or conditioned in the sole and absolute discretion of the Project Owner. (x) Refuse Removal. All rubbish, garbage and debris will be regularly removed from and will not be allowed to accumulate in the Airspace Lot. All trash, garbage and other debris generated in the Airspace Lot will be kept in sanitary containers and will be disposed of by the Airspace Lot Owner in accordance with the normal practices and procedures of and in places designated by the Project Owner, as may change from time to time. (d) Use of Terraces. (i) No Attachment or Improvement. In addition to the other provisions of this Section 5, which also apply to the Terraces, the Airspace Lot Owner, its tenants, and their respective Permittees may not install, attach or otherwise affix any item to or on the exterior of the Project Improvements or on any railing or other portion of the Terraces or otherwise alter the Terraces or other exterior portions of the Project Improvements. 3l 625376 15 AKHANS 11/9/07 2:11 PM 13 (ii) Furniture; Personal Property. Except as provided for below, the Airspace Lot Owner, its tenants, and their respective Permittees may not store any bicycles, skis, recreational equipment or gear or other personal property of any nature on the Terraces. No outdoor or patio furniture may be placed on any Terrace except (1) outdoor or patio furniture approved by and of the same style as used by the Hotel operator, or (2) high quality outdoor furniture made of wood, cast iron or cast aluminum, as approved by the Hotel operator from time to time. (iii) No Barbecue Grills. No propane gas, charcoal grills, barbecue grills or other cooking devices may be used or stored on the Terraces; provided, however, that if a Terrace includes a natural gas line for connection to a barbecue grill, the Airspace Lot Owner may use a barbecue grill connected to such natural gas line. (iv) No Hot Tubs. No hot tubs, spas or similar devices may be placed, installed or otherwise used on the Terraces without the express consent of the Project Owner, which consent may be granted or withheld in the sole and absolute discretion of the Project Owner. In no event will such consent be given if the Project Structure (including, without limitation, the Terrace) or the Project Services Elements are not designed and constructed in a manner that will structurally, architecturally, mechanically or electrically support the addition of the hot tub or spa. (v) No Decorations. No holiday lights, decorations, or wind chimes may be placed on the Terraces. (vi) No Laundry. Laundry, linens, clothing, bathing suits or swimwear, curtains, rugs, mops or clothes lines of any kind may not be shaken or hung from any of the Terraces. (vii) Landscaping. No landscaping or plant materials may be installed on any of the Terraces, other than in portable containers that are not affixed to any element of the Terraces or the exterior of the Project Improvements. No landscaping or plant materials will be allowed to hang over the railing or edge of any of the Terraces. Hose bibs, if any, on the Terraces, used for the purpose of watering any landscaping or plant materials located on the Terraces, must be equipped with automatic timers or hoses attached to nozzles with spring-loaded handles that must be used to ensure that other areas of the Project Improvements and Airspace Improvements are not threatened by overflowing water from such watering. No hoses or other equipment may be attached to any such hose bib except from June through September each year. (viii) Music. No television, radio or music may be played and no speakers may be installed or used on any of the Terraces. (e) Fireplaces. Fireplaces located in the Airspace Improvements may not be used for burning of any wood or other solid fuel. (f) Stereos and Home Theater Systems. No stereo speaker or home theater speaker may be installed within the Airspace Improvements in a manner that results in the speaker penetrating any wall, ceiling or floor that is part of the Project Structure. In addition, no stereo 625376.15 AICHANS 11/9/07 2:11 PM 14 speaker or home theater speaker may be operated in a residential dwelling or sleeping room within the Airspace Improvements in a manner in which sounds are heard or vibrations are felt outside of the residential dwelling or sleeping room. No speakers may be installed or used on any of the Terraces attached to the Airspace Improvements. (g) Bicycles. Bicycles, tricycles, skateboards, roller blades, or other types of wheeled vehicles or equipment may not be taken in or out of the Airspace Improvements through the main lobby within the Project Improvements. No such vehicle or equipment may be left unattended in any public area within the Project Improvements or the Airspace Improvements. (h) No Christmas Trees. Due to their extremely flammable nature, natural Christmas trees, whether live or cut, are not permitted within the Airspace Improvements. (i) Real Estate Agents. If all or any portion of the Airspace Lot is for sale, the Airspace Lot Owner must provide the Hotel operator with the name and telephone number of the listing real estate agent. The listing real estate agent must notify the Hotel operator prior to each showing, which must take place during regular business hours as set by the Hotel operator. In no event may any for-sale sign be placed in any window within the Airspace Improvements or on any of the Terraces. 6. EXPENSES. (a) Direct Expenses. The Airspace Lot Owner is solely responsible and obligated to bear all costs and expenses attributable solely to the Airspace Lot (the "Direct Expenses"). In no event will the Project Owner bear any responsibility for any Direct Expenses. Notwithstanding the foregoing, if the Airspace Lot Owner fails to pay a Direct Expense, then the Project Owner, in its sole and absolute discretion, may pay such Direct Expense on behalf of the Airspace Lot Owner and the Airspace Lot Owner will reimburse the Project Owner for such Direct Expense within 30 days of demand from the Project Owner for reimbursement. The Direct Expenses include,but are not limited to, the following: (i) Premiums for all liability insurance coverages that the Airspace Lot Owner is obligated to maintain under the terms of this Agreement and Colorado law, and all property, casualty, liability and other forms of insurance coverages that the Airspace Lot Owner actually maintains from time to time in connection with the Airspace Lot, Airspace Improvements and its contents; (ii) All real and personal property taxes and assessments (and any similar impositions) which are levied and assessed against the Airspace Lot, Airspace Improvements or the furnishings and other contents contained in the Airspace Lot; (iii) All costs of any repairs, maintenance or replacements to the Airspace Improvements, including, without limitation, the provision or replacement of any furnishings, fixtures or appliances located within the Airspace Improvements; (iv) All direct charges for services rendered specifically and solely for the Airspace Lot Owner; and t' 625376.15 AKHANS 11/9/07 2:11 PM 15 (v) Any utility charges for the Airspace Lot, to the extent the same are separately metered to the Airspace Lot Owner. (b) Expense Payments. Each calendar year, the Airspace Lot Owner will pay to the Project Owner a portion, calculated as provided for below (the "Expense Payment"), of the operating, maintenance, utility, employee and other expenses related to the ongoing ownership, operation and maintenance of the Project Improvements, including, without limitation, the Amenities, and related off-site improvements and facilities to the extent the responsibility of the Project Owner (the "Operating Costs"). The Operating Costs in no event will include any costs solely attributable to an income-generating portion of the Project Improvements for which the Airspace Lot Owner has access to or use of by virtue of being a member of the public, and not due to the Airspace Lot Owner's rights under this Agreement, such as, by way of example only, any restaurant or retail shop within the Project Improvements, all as determined by the Project Owner in its ordinary business judgment. The Parties acknowledge and agree that the Expense Payment is also intended to compensate the Project Owner for, among other items, the cost of all utility service provided to the Airspace Lot as part of the utility service provided to the Project Improvements, but not separately metered, and the cost of valet service. Each year's Expense Payment will be comprised of two components: (a) a flat fee intended to cover the Airspace Lot Owner's share of all Operating Costs related to the Amenities (the "Amenity Access Fee"); and (b) 59.7% of the "Estimated Annual Operating Costs" (as defined below), which percentage the parties acknowledge and agree is based on the approximate square footage of the Airspace Improvements divided by the sum of the approximate square footage of the Airspace Improvements and the Project Improvements, excluding the square footage of the parking garage and loading and delivery facility within the Project Improvements and is not subject to adjustment based on remeasurement or otherwise. The Amenity Access Fee is initially established as $167,500 per year, but may be increased from time to time by the Project Owner in its ordinary business judgment based upon circumstances then prevailing. The Parties acknowledge and agree that the Amenity Access Fee is a flat fee in lieu of calculating the Airspace Lot Owner's share of those portions of the Operating Costs related to operating the Amenities, and the Estimated Annual Operating Costs do not include any costs related to operating the Amenities, as determined by the Project Owner in its ordinary business judgment. The Parties acknowledge and agree that there is no operational history upon which to base the first year's Expense Payment and, based upon estimated costs, the parties have determined that from the date of this Agreement through December 31, 2008, the Airspace Lot Owner's annual Expense Payment will be $ , prorated based upon a 365-day year. Each calendar year thereafter, prior to the start of the calendar year, the Project Owner will develop a budget estimating the total amount of the year's Operating Costs (excluding Operating Costs for the Amenities) anticipated to be incurred by the Project Owner in that calendar year (the "Estimated Annual Operating Costs"). At any time, the Project Owner may cease charging the Amenity Access Fee and, upon such event, may include all Operating Costs related to the Amenities in the Estimated Annual Operating Costs and the Airspace Lot Owner will pay its percentage share of such costs as part of the Expense Payment. The Airspace Lot Owner will pay each Expense Payment without demand or set-off, in equal installments due on the first day of each calendar quarter in such calendar year. Any failure or delay of the Project Owner in establishing or updating the amount of the Expense Payment for any calendar year will not be deemed a waiver, modification, or release of the right to so establish or update those 625376.15 AKHANS 11/9/07 2:11 PM 16 installments, or of the obligation of the Airspace Lot Owner to pay installments of an Expense Payment prospectively. (c) Annual Accounting. Within 120 days after the end of each calendar year, the Project Owner will prepare and submit to the Airspace Lot Owner an accounting of the actual Operating Costs incurred for the calendar year just ended, together with a reconciliation of those actual Operating Costs and the resulting annual obligation of the Airspace Lot Owner for Expense Payments with the aggregate of the quarterly installments of estimated Expense Payments paid by the Airspace Lot Owner for that same calendar year. If the sum of those quarterly installments so paid by the Airspace Lot Owner proves to be less than the final annual obligation for Expense Payments, then the Airspace Lot Owner will pay such deficiency to the Project Owner within 30 days after the Project Owner delivers its annual accounting and reconciliation statement. Conversely, if the sum of those monthly installment payments is greater than the final annual obligation for Expense Payments, the Project Owner will either reimburse the excess to the Airspace Lot Owner contemporaneously with the Project Owner's . submission of its annual reconciliation statement, or give the Airspace Lot Owner a credit, equal to the amount of the excess, against the quarterly installments of Expense Payments next due and owing until the credit is exhausted. (d) No Waiver; Special Levies. Any failure or delay of the Project Owner in establishing or updating the quarterly installments of estimated Expense Payments for any calendar year will not be deemed a waiver, modification, or release of the right to so establish or update those installments, or of the obligation of the Airspace Lot Owner to pay installments of Expense Payments prospectively or to make the year-end reconciliation. At its election, the Project Owner may also make specific levies of Expense Payments in arrears for the actual amount of Operating Costs already incurred (e.g., in a case where the Project Owner incurs an Operating Cost that is unusual or otherwise non-recurring). Any Expense Payment which is thus specially levied is due and payable within 30 days after the Project Owner gives the Airspace Lot Owner written notice thereof (e) Books and Records. The Airspace Lot Owner, in the Project Owner's offices and at the Airspace Lot Owner's sole cost and expense, may audit the Project Owner's books and records for the purpose of verifying actual Operating Costs, provided the Airspace Lot Owner gives the Project Owner reasonable prior notice thereof (and in any case not less than five business days in advance), and further provided that such audit may be undertaken only during ordinary business hours and will be subject to such limitations and procedures as the Project Owner may reasonably impose in order to avoid any material interference with normal business operations. The Airspace Lot Owner may conduct such an audit no more frequently than once in any calendar year. (f) Payment Due Date and Late Charges. If, for any particular Expense Payment or other payment obligation owing to the Project Owner from the Airspace Lot Owner, this Agreement fails to establish an express due date, then the same will be due and payable within 30 days after the Project Owner makes written demand for payment. Any installment of Expense Payments not made within 15 days after it becomes due and payable is delinquent. The Airspace Lot Owner is obligated to pay a monthly late fee equal to 1.5% of the delinquent amount, which late fees accrues initially as of the occurrence of the delinquency, and thereafter on the first day 625376.15 AKHANS 11/9/07 2:I 1 PM 17 of each ensuing calendar month until the delinquency is cured. If any late fees collected by the Project Owner prove to be in excess of the amount permissible under applicable law, then the excess, at the Project Owner's election, either will be refunded to the Airspace Lot Owner or applied as a credit against obligations for other Expense Payments accruing under this Agreement. (g) Capital Payments. A "Capital Project" is any project or capital improvement to any portion of the Project Improvements encumbered by an Airspace Lot Owner Easement undertaken by the Project Owner in one or more calendar years. In no event will any project or capital improvement to any portion of the Project Improvements which is not encumbered by a Airspace Lot Owner Easement be considered a Capital Project. For example purposes only, and without limiting the definition above, the following projects comprise a partial list of examples of a Capital Project: repair and replacement of the roof; renovation of the lobby; or restriping of the parking garage within the Project Improvements. In the event the Project Owner intends to undertake a Capital Project, the Project Owner will provide the Airspace Lot Owner written notice containing a description of the proposed Capital Project, an estimate of the total cost and an estimate of the Airspace Lot Owner's "Capital Payment" (as defined below). Upon completion of the Capital Project, the Project Owner will provide the Airspace Lot Owner with written notice containing the total actual cost of such Capital Project and the amount of the Airspace Lot Owner's Capital Payment. Within 30 days of such notice, the Airspace Lot Owner will pay to the Project Owner 59.7% of the total cost of the Capital Project (the "Capital Payment"), which percentage is based on the approximate square footage of the Airspace Improvements divided by the sum of the approximate square footage of the Airspace Improvements and the Project Improvements, excluding the square footage of the parking garage and loading and delivery facility within the Project Improvements. (h) Expense Lien. (i) The Airspace Lot Owner hereby grants to the Project Owner a lien against the Airspace Lot to secure the timely payment of each Expense Payment and Capital Payment due from the Airspace Lot Owner from time to time and any other amount due to the Project Owner from the Airspace Lot Owner (the "Expense Lien"). Upon the occurrence of any delinquency in the payment of any Expense Payment, Capital Payment or any other payment required hereunder by the Airspace Lot Owner, the Project Owner may proceed to enforce its lien rights to recover the delinquency by a foreclosure of the Expense Lien. The Expense Lien will be enforceable against the Airspace Lot only by judicial foreclosure in the same manner as a real property mortgage is foreclosed under the prevailing laws of the State of Colorado. In addition to securing payment of the delinquency, the Expense Lien will also secure the late fees established under the foregoing provisions, and all costs and expenses, including attorneys' fees, incurred by the Project Owner in confirming, exercising or foreclosing upon the Expense Lien or in otherwise attempting to enforce the delinquent payment obligation, and all such enforcement and collection costs will be due and owing from the Airspace Lot Owner upon demand. The Expense Lien will survive and will not be extinguished by any foreclosure, cure or redemption in connection with any one payment delinquency. Any further Expense Payments, Capital Payments or other payments (and any late fees and collection and enforcement costs attributable thereto) which become delinquent after the 625376.15 AKHANS 11/9/07 2'.11 PM 18 commencement and prior to the completion of any foreclosure of the Expense Lien (and the expiration of any redemption period in favor of the Airspace Lot Owner) will become part of the payment delinquency foreclosed upon and added to the indebtedness necessary to redeem. The Project Owner may be the purchaser at any foreclosure, and for bidding purposes will be entitled to a credit in the amount of the obligations secured from time to time by the Expense Lien. (ii) In order to evidence and confirm the Expense Lien upon the occurrence of a delinquency in payment of the Expense Payments, Capital Payments or other payments, the Project Owner may, but is not required to, prepare a written notice setting forth the amount of the pertinent delinquency (including any accrual of late fees and collection and enforcement costs incurred in connection therewith), the name of the Airspace Lot Owner, the legal description of the Airspace Lot, and such other information concerning the Expense Lien and the delinquency as the Project Owner may consider appropriate, which notice may then be recorded in the Records. Regardless of whether such notice is recorded, the Expense Lien will attach, be perfected and have a priority as of the recordation of this Agreement, and will be superior to all other liens and encumbrances or any other interests acquired in the Airspace Lot which arise after such recordation(except for the lien of any first-priority mortgage or deed of trust encumbering the Airspace Lot at any time, and the lien of taxes and assessments). However, the lien of any first-priority mortgage or deed of trust will be subordinate to the Expense Lien to the extent of any Expense Payments, Capital Payment or other payment secured thereby that accrue or become payable (1)before the mortgage or deed of trust is recorded; or (2) after any foreclosure sale of the mortgage or deed of trust. (iii) The Project Owner's rights to exercise and enforce the Expense Lien is a non-exclusive remedy. The Project Owner may maintain a suit to recover any delinquencies in Expense Payments, Capital Payments or other payments, together with the related late fees and enforcement and collection costs, without first foreclosing upon the Expense Lien, as well as exercise any other remedies provided for in this Agreement. The undertaking of any such collection action will not constitute any election of remedies or waiver by the Project Owner that bars enforcement of the Expense Lien, and the Project Owner retains all rights to enforce the Expense Lien for the same or other delinquencies in Expense Payments, Capital Payments or other payments. 7. OPERATION, MAINTENANCE AND REPAIRS. (a) Project Improvements and Airspace Improvements. The Project Owner has sole control over operating, maintaining, repairing or replacing the Project Improvements, provided that the Project Owner will act diligently to complete the same from time to time as reasonably necessary to preserve the use and enjoyment of the Airspace Lot and Airspace Lot Owner Easements. Subject to the requirements of Section 3, the Airspace Lot Owner is solely responsible for undertaking maintenance, repairs and replacements for the Airspace Lot and its contents and any facilities located therein, as necessary to maintain the same in a good and clean condition and repair, and the Project Owner will have no liability for such maintenance, repairs or replacement. Notwithstanding the foregoing, in the event the Airspace Lot Owner fails to perform the maintenance, repairs and replacement required of it pursuant to this Agreement after 625376.15 AKHANS 11/9/07 2 11 PM 19 reasonable notice, the Project Owner, in addition to any other remedies it may have pursuant to this Agreement, may undertake such maintenance, repairs and replacement and the Airspace Lot Owner will reimburse the Project Owner for the cost of such work immediately upon demand. Notwithstanding that any wallboard, plasterboard or other materials that form part of any fire- separation assembly may be part of the Airspace Lot, the Airspace Lot Owner may not remove or allow to be removed the same or otherwise penetrate, alter or do anything to the same that impairs the fire-separation capability of such materials or assemblies, or that causes any violation of building codes or other legal requirements. (b) Utility Service. The Project Owner will provide utility and similar services (gas, electric, hot water, cable, phone, etc.) to the Airspace Lot normally provided throughout the Project Improvements, except to the extent any such services are separately metered for the Airspace Lot. If any of these services provided by the Project Owner to the Airspace Lot are interrupted or stopped, the Project Owner will use due diligence to resume the service; provided, however, no irregularity or stoppage of any of such services will create any liability for the Project Owner (including, without limitation, any damages to the Airspace Lot Owner's personal property caused by any such irregularity or stoppage), cause any abatement of any amounts due from the Airspace Lot Owner to the Project Owner, including, without limitation, Expense Payments, or in any manner or for any purpose relieve the Airspace Lot Owner from any of its obligations under this Agreement. (c) Entry into Airspace Lot. To the extent the Project Owner exercises its right and license for entry into the Airspace Lot or any portion thereof (as set forth in Section 4(b)) in order to effectuate any inspection, maintenance, repairs, replacements or improvements for the Project Improvements, such exercise will be only during business hours and on reasonable prior notice (except where immediate entry is necessitated by emergency circumstances, as determined by the Project Owner in its ordinary business judgment exercised in good faith). The Project Owner will also (i) exercise reasonable efforts to minimize any resulting unreasonable interference with the use and enjoyment of the Airspace Lot; and (ii) repair and restore any damage to the Airspace Lot or its contents which may result therefrom. Except as provided for in the previous sentence, the Project Owner will not be liable to the Airspace Lot Owner, its tenants or their respective Permittees, for any exercise of such right of entry except for the Project Owner's gross negligence or willful misconduct. The Project Owner will not have any obligation to the Airspace Lot Owner to maintain or make repairs to the Project Improvements, other than as necessary to preserve the use and enjoyment of the Airspace Lot and Airspace Lot Owner Easements in accordance with Section 7(a). (d) Negligence and Misconduct. In the event any need for any maintenance, repairs or replacements within the Project Improvements is caused by any negligence or other misconduct of the Airspace Lot Owner, its tenants or their respective Permittees (including any breach of the Airspace Lot Owner's obligations under this Agreement), then the Airspace Lot Owner will be responsible for the entire cost incurred by the Project Owner in undertaking the pertinent maintenance, repairs or replacements, which entire cost constitutes an Expense Payment and is due and owing from time to time within 30 days after demand, accompanied by invoices or paid receipts for work, materials or services covered by such demand, and/or an accounting by the Project Owner of any portion of such cost that is self-performed. Conversely, if the need for any such maintenance, repairs or replacements is caused by any negligence or 625376 15 AKHANS 11/9/07 2:11 PM 20 misconduct of the Project Owner or its Permittees (including any breach of the Project Owner's obligations under this Agreement), then the Project Owner will be solely responsible for the cost of such maintenance, repairs or replacements, and the resulting costs will not be included within the Expense Payments. (e) Maintenance Standard. Any maintenance or repair work that may be or is required to be performed pursuant to this Agreement by any of the Parties will be performed in a workman-like manner consistent with similar mixed-use projects located in the Eagle County, Colorado area 8. INSURANCE. (a) Liability Insurance. The Project Owner at all times will maintain in full force and effect, with good and solvent insurance companies authorized to do business in the State of Colorado, general comprehensive public liability insurance against all claims for personal injury, death or property damage occurring upon, in or about the Project Improvements. The Airspace Lot Owner at all times will maintain or cause to be maintained in full force and effect, with good and solvent insurance companies authorized to do business in the State of Colorado, general comprehensive public liability insurance against all claim for personal injury, death or property damage occurring upon, in or about the Airspace Lot, Airspace Improvements or the Project. In accordance with the Parties' mutual intent, each Party's coverage will be primary with respect to any liability or loss incurred in connection with any use or enjoyment of any portion of the Airspace Lot, Airspace Improvements or the Project or any other actions or course of conduct which arise by, through or under that Party (including, without limitation, any breach by that Party of its obligations under this Agreement). For any Permittees of the Airspace Lot Owner or the Project Owner, their occupancy, actions and omissions will be regarded as arising by, through or under the Airspace Lot Owner or the Project Owner, as applicable. Each such policy will be underwritten on an"occurrence" basis; will name the other Party as an additional insured as its interests may appear; and will have a single occurrence limit of coverage of not less than $2,000,000 (provided that this minimum from time to time may be increased by the Project Owner giving the Airspace Lot Owner written notice thereof so long as such increase is not materially inconsistent with prevailing market practices for similar properties, as reasonably determined by the Project Owner). Each of these coverages will also include a contractual liability endorsement for any breach or default of the insuring Party's obligations under this Agreement, will provide that the same may not be cancelled or materially modified without at least 30 days' prior written notice to the other Party, and will otherwise contain terms which are reasonably satisfactory to the Project Owner as determined in the ordinary course of business. This coverage may be provided by any Party pursuant to a blanket policy, provided the blanket policy expressly makes a separate allocation to the properties of the requisite coverage amounts established pursuant to the foregoing provisions. (b) Property Insurance. (i) The Project Owner will carry insurance against loss or damage to the Project Improvements by fire, windstorm, tornado and hail and against loss and damage by such other, further and additional risks as may be now or hereafter embraced by an 1 "all-risk" form of insurance policy (or the relative equivalent thereof available from time tt 625376 15 AKHANS 11/9/07 2 I I PM 21 to time in the marketplace). This coverage will be in an amount equal to the full replacement cost or fair market value from time to time, whichever is greater, of the Project Improvements, to the extent available. (ii) The Airspace Lot Owner will carry or cause to be carried insurance against loss or damage to the Airspace Improvements and the Airspace Lot, including all fixtures and personal property located in the therein and on the Terraces, by fire, windstorm, tornado and hail and against loss and damage by such other, further and additional risks as may be now or hereafter embraced by an "all-risk" form of insurance policy (or the relative equivalent thereof available from time to time in the marketplace). This coverage will be in an amount equal to the full replacement cost or fair market value from time to time, whichever is greater, of Airspace Improvements and the Airspace Lot, including all fixtures and personal property located in the therein and on the Terraces, to the extent available, and will be on an agreed value basis to eliminate the effects of co-insurance. In accordance with Section 6(a), the Airspace Lot Owner will pay all costs associated with such insurance as a Direct Expense. (c) Certificates of Insurance. Within 10 days after the making of this Agreement, the Airspace Lot Owner will furnish to the Project Owner and the Project Owner will furnish to the Airspace Lot Owner an insurance certificate or certificates reasonably evidencing their respective procurement and maintenance of the insurance coverages required under the foregoing provisions of this Section 8, and prior to any expiration of the given coverage, a new certificate or certificates and a copy of a new binder or binders (if applicable) reasonably evidencing the renewal thereof If any Party fails for any reason to obtain and maintain its required insurance coverage(s) under the foregoing provisions, then the Party so failing to insure will indemnify the other Parties against any liability, loss, cost or expense, including attorneys' fees, that the other Parties may incur as a result of the failure of the applicable insurance coverage. 9. CASUALTY AND CONDEMNATION. Subject to Section 11, in the case of any fire or other casualty or any condemnation affecting the Project Improvements, the following provisions will govern: (a) Restoration of Project Improvements. In the event of a fire or other casualty, the Project Owner will be responsible for repairing and restoring the Project Improvements by the exercise of good faith. Provided the Project Owner so proceeds, the Project Owner will not have any obligation or liability to the Airspace Lot Owner in connection with the casualty or subsequent restoration process. So long as the Project Owner restores (a) the Project Structure; (b)the Project Service Elements as necessary for the continuance of utility services, plumbing services, sanitary and storm sewer services, water supply and other services to the Airspace Lot to substantially the same condition or functional capability as existed prior to the casualty; and (c) stairwells and elevator(s) as necessary to provide access to and egress from the Airspace Lot to substantially the condition or functional capability as existed prior to the casualty, the Airspace Lot Owner will have no right of approval over restoration plans. Additionally, in the case of any fire or other casualty or any condemnation affecting any portion of the Project Improvements that are encumbered by the Airspace Lot Owner Easements, the Project Owner will restore such damaged or destroyed portions of the Project Improvements as reasonably necessary to restore the Airspace Lot Owner's use and enjoyment of the Airspace Lot Owner 625376.15 AKHANS 11/9/07 2:11 NA 22 Easements, but only to the extent such restorations are feasible and do not constitute material economic waste (as reasonably determined by the Project Owner). Any and all property insurance proceeds resulting from the casualty will be paid over to and controlled by the Project Owner for this purpose. (b) Restoration of Airspace Improvements. Nothing in Section 9(a) shall be interpreted to require the Project Owner to restore or replace the Airspace Improvements or the contents within the Airspace Lot (which contents will be deemed to include items that the Airspace Lot Owner locates on the Terraces). The Airspace Lot Owner will be solely responsible for restorations and replacements of the Airspace Lot Improvements and such contents and will be solely entitled to the insurance proceeds related thereto. In connection with any restoration of the Airspace Improvements, the Airspace Lot Owner will exercise reasonable efforts to avoid any material interference with restorations being undertaken by or through the Project Owner in connection with the Project Improvements, and will comply with such construction procedures, limitations and requirements as the Project Owner may reasonably impose. (c) Condemnation. If any condemnation or exercise of eminent domain for taking any portion of or interest in the Project Improvements arises, the Project Owner will be obligated to undertake any necessary restorations resulting therefrom, to the extent such restorations are feasible and do not constitute material economic waste (as reasonably determined by the Project Owner). The Airspace Lot Owner will bear its portion of the costs of undertaking any such restorations as a Capital Payment, and the Parties will otherwise be left to make their own independent claims for any proceeds or awards that may be derived from any condemnation or eminent domain proceedings affecting the Project Improvements and/or the Airspace Lot. The Airspace Lot Owner will not be entitled to any portion of any condemnation award made or settlement proceeds received in lieu of condemnation regarding the Project Improvements for any interest the Airspace Lot Owner may have in the Project Improvements by virtue of this Agreement. Notwithstanding the foregoing, the Airspace Lot Owner may negotiate on its own behalf for compensation for damage to the Airspace Lot resulting from such taking of the Airspace Lot Owner's interest in the Project Improvements. (d) Waiver of Claims. The Project Owner hereby waives any and all rights and claims to recover against the Airspace Lot Owners for any property damage to the Project Improvements and any of the Project Owner's other property located within the Project Improvements, to the extent such property damage arises from any fire or other casualty which is insurable under customary fire and extended coverage insurance (or the relative equivalent thereof available from time to time in the marketplace), or is actually insured by any forms of insurance coverage actually maintained by the Project Owner. Conversely, the Airspace Lot Owner hereby waives any and all rights and claims to recover against the Project Owner for any property damage to the Airspace Lot or its contents to the extent such property damage arises from any fire or other casualty which is insurable under customary fire and extended coverage insurance (or the relative equivalent thereof available from time to time in the marketplace), or is actually insured by any forms of insurance coverage actually maintained by the Airspace Lot Owner. This mutual waiver will inure to the benefit of the Parties hereto and their respective Permittees. The foregoing provisions are intended to and will act as a mutual waiver of any subrogation rights that each Party's respective insurer(s) may otherwise have against the other 625376.15 AKHANS 11/9/072:11 PM 23 1 Party for any insured loss suffered by the insured Party. The Parties from time to time will cause their respective insurer(s) to issue appropriate waiver of subrogation rights endorsements for such insurance policies (provided that their failure to do so will not in any way limit or impair the effect of the foregoing waiver of subrogation rights). 10. INDEMNIFICATION. Subject to Section 9(d), the Airspace Lot Owner will be liable to and will protect, defend, indemnify and hold harmless Project Owner from and against any and all damages, claims, demands, liens (including, without limitation, mechanics'. and materialmen's liens and claims and business interruption claims), losses, costs and expenses (including, without limitation, reasonable attorneys' fees, court costs and other expenses of litigation) and liabilities of any kind or nature whatsoever (collectively referred to as "Claims") suffered or incurred by, or threatened or asserted against, the Project Owner as a result of or in connection with (a)the willful misconduct, negligence or breach of this Agreement by the Airspace Lot Owner, its tenant or their respective Permittees; (b) any repair, restoration, replacement, alteration or other construction, demolition, installation or removal work on or about the Project Improvements or the Airspace Lot contracted for, or performed by, the Airspace Lot Owner, its tenants or their respective Permittees; or (c)the operation, use, ownership or maintenance of the Airspace Lot by the Airspace Lot Owner, its tenants or their respective Permittees. The Airspace Lot Owner will pay for all Claims suffered or incurred by the Project Owner for which the Airspace Lot Owner, its tenants or their respective Permittees are responsible promptly upon receipt of a demand for payment from the Project Owner. The amount of the Claims will constitute an Expense Payment due from the Airspace Lot Owner. Nothing in this Agreement relieves any tenant or Permittee from liability for its own acts or omissions. Nothing contained in this Section 10 will be construed to provide for any indemnification which violates applicable laws or negates, abridges, eliminates or otherwise reduces any other indemnification or right which the Project Owner has by law. 11. TOTAL CASUALTY. (a) Razing of Project Improvements and Airspace Improvements. Notwithstanding any provisions of this Agreement to the contrary, in conjunction with any "Total Casualty," the Project Owner may determine to forgo any restorations and repairs and to raze or otherwise abandon the Project Improvements. For purposes of this Section 11, "Total Casualty" means any fire or other casualty affecting the Project Improvements when the cost to repair such damage equals or exceeds 80% of the total replacement cost of the Project Improvements. The Project Owner will promptly give the Airspace Lot Owner notice of this determination when made and the Airspace Lot Owner will be bound by the Project Owner's determination in that regard. In such event, the Airspace Improvements will be razed or abandoned along with the Project Improvements and the Airspace Lot Owner will be entitled only to the insurance proceeds received by the Airspace Lot Owner for the Airspace Lot or the Airspace Improvements. To the extent that the Airspace Lot Owner conveys the Airspace Lot to the Project Owner on the terms and conditions contained in Section 11(b), the Airspace Lot Owner will also be entitled to a portion of the Project Owner's insurance proceeds equal to the total square footage of the Airspace Improvements divided by the sum of the total square footage of the Airspace Improvements plus the total square footage of the Project Improvements, excluding square footage of the parking garage and loading and delivery facility within the Project Improvements. At such time as the Project Owner gives its notice of determination to 625376 15 AKHANS 11/9/07 2:11 PM 24 forgo restorations, the Airspace Lot Owner will not make any settlements of claims for insurance proceeds without the Project Owner's prior written consent, and the Project Owner will have the right and authority to prosecute and settle such claims (and the Airspace Lot Owner will join therein and/or furnish such other cooperation as the Project Owner may reasonably require in connection with any such prosecutorial or settlement efforts). (b) Conveyance of Airspace Lot. No later than 30 days after the Total Casualty and regardless of whether the insurance claims have been settled and the Airspace Lot Owner has been paid as provided for above, the Airspace Lot Owner will elect whether or not it will convey the Airspace Lot to the Project Owner. If the Airspace Lot Owner elects not to convey the Airspace Lot to the Project Owner, then this Agreement shall automatically terminate and be of no further force or effect. If the Airspace Lot Owner elects to convey the Airspace Lot to the Project Owner, it will do so within 10 business days of such election by a special warranty deed, with title being subject to no title exceptions or matters arising by, through or under the Airspace Lot Owner or any previous or current owner of the Airspace Lot (excepting only the Permitted Exceptions and any condominium declaration and map recorded against the Airspace Lot pursuant to Section 19 and excluding from permissible matters in any case the standard title insurance exception for mechanic's liens and other standard exceptions). The Airspace Lot Owner will, at its expense, furnish the Project Owner with an ALTA owner's title insurance policy, issued in the amount of the fair market value of the Airspace Lot and with an effective date and time subsequent to the conveyance, which insures title in conformity with the foregoing provisions. If the Airspace Lot Owner is unable to deliver title to its Airspace Lot in conformity with the foregoing requirements, the Airspace Lot Owner may extend the time for the conveyance in order to secure the cure and removal of the additional title matters causing such non-conformity, provided that the Airspace Lot Owner must pursue such cure and removal by the exercise of all due diligence, and in any event such extension may not exceed 30 days. 12. MECHANIC'S LIENS. If, by virtue of any construction, repair or improvement undertaken by, through or under a Party to this Agreement (the "Responsible Owner"), any mechanic's lien claim is recorded against the property of any other Party (the "Liened Owner"), then the Responsible Owner will cause such lien claim to be released and discharged of record (by payment, bonding or other available process) within 30 days after recordation of the claim, provided that in any case such release and discharge must be secured prior to any foreclosure of such lien or other disposition of the encumbered property pursuant to such lien. If such release and discharge is not timely secured, then the Liened Owner, at its election and without obligation to do so, may secure the release and discharge of the lien claim through its own efforts, whether by payment, bonding or otherwise, and the Liened Owner will be entitled to recover from the Responsible Owner all costs and expenses, including attorneys' fees, that the Liened Owner may incur in connection therewith (with these reimbursable costs and expenses to be due and owing within 20 days after demand, which demand will be accompanied by paid invoices or other documentation reasonably evidencing the sums incurred). Furthermore, if the Responsible Owner fails to discharge the pertinent lien claim in conformity with the foregoing provisions, the Responsible Owner will also indemnify, defend and hold harmless the Liened Owner from and against any liability, loss, damage, cost or expense, including attorneys' fees, incurred or arising on account of or in relation to the pertinent lien claim. 625376.15 AKHANS 11/9/072:11 PM 25 1 13. AIRSPACE LOT OWNERS' ACKNOWLEDGEMENTS AND WAIVERS. (a) Acknowledgments. (i) Mountain Activities. The Project Improvements and the Airspace Lot are located in proximity to skiing facilities and recreational areas (the "Mountain Recreational Areas"). The Mountain Recreational Areas are expected to generate an unpredictable amount of visible, audible and odorous impacts and disturbances from activities relating to the construction, operation, use and maintenance of the Mountain Recreational Areas (the "Mountain Activities"). The Mountain Activities include, without limitation: (1) movement and operation of passenger vehicles (including, without limitation, buses, vans and other vehicles transporting passengers over adjacent streets and over, around and through the Mountain Recreational Areas), commercial vehicles, and construction vehicles and equipment; (2) activities relating to the construction, operation and maintenance of roads, trails, ski trails, skiways and other facilities relating to the Mountain Recreational Areas (including, without limitation, tree cutting and clearing, grading and earth moving and other construction activities, construction, operation and maintenance of access roads, snow-making equipment, chairlifts, gondolas or other transportation systems, operation of vehicles and equipment relating to trash removal, snow removal, snow grooming, and over-the-snow or over-the- terrain transportation purposes, and operation of safety and supervision vehicles); (3) activities relating to the use of the Mountain Recreational Areas (including, without limitation, skiing, snow-boarding, ski-patrol activities, and other over-the-snow activities, hiking, horseback riding, bicycling and other recreational activities; (4) ski racing and organized events and competitions relating to the activities described in clause (3) above; (5)concerts, fireworks displays, and other performances and special events; (6)restaurants, clubs, restrooms and other public use facilities; (7) indoor and outdoor restaurant and bar operations (including, without limitation, the sale of food and alcoholic and non-alcoholic beverages for consumption in the vicinity of the Project Improvements and at other locations) and preparation of hot and cold food (through the use of barbecue grills, fire pits and other smoke and/or odor producing means) and beverages at indoor and outdoor facilities in the vicinity of the Project Improvements; (8) public access to adjacent U.S. National Forest Service lands; and (9) other activities permitted by law. The Mountain Activities may occur during daytime and nighttime. (ii) Construction Activities. The Project Improvements and the Airspace Lot are located in an area that is subject to or near current and/or future construction activities relating to the development of adjacent properties, including, without limitation the Lionshead Properties and the Mountain Recreational Areas (the "Construction Activities"). The Construction Activities are expected to generate an unpredictable amount of visible, audible and odorous impacts and disturbances. The Construction Activities may include, without limitation: (1) construction traffic (including, without limitation, construction vehicles, equipment and vehicles used or owned by the Project Owner, adjacent landowners, the owners and operators of the Mountain Recreational Areas and the employees, agents and contractors of any of them; and (2) construction activities (including, without limitation, grading, excavation, clearing, site work and 625376.15 AKHANS 11/9/07 2:11 PM 26 construction of indoor and outdoor improvements) relating to the Airspace Lot, the Project Improvements, nearby properties or the Mountain Recreational Areas. (iii) Hotel and Commercial Activities. A variety of commercial and hotel activities are and will be conducted in and adjacent to the Project Improvements and adjacent to or near the Airspace Lot (the "Commercial/Hotel Activities"). The Commercial/Hotel Activities are expected to generate an unpredictable amount of visible, audible and odorous impacts and disturbances. The Commercial/Hotel Activities may include, without limitation: (1) operation of the Hotel, which may include a full-service hotel and health spa with associated swimming pool and underground parking facility; (2) operation of property management services and facilities; (3) meetings, conferences, banquets and other group events; (4) sales and rentals of clothing, skis, ski-related equipment, other over-the-snow equipment, and other recreational equipment (including, without limitation, tuning, waxing, repairing, mounting of bindings on, renting, storing and transporting skis, snowboards and similar equipment); (5) sales of tickets for chairlifts, gondolas, other transportation systems, and other activities and events conducted on the Mountain Recreational Areas; (6) indoor and outdoor restaurant and bar operations (including, without limitation, the sale of food and alcoholic and non-alcoholic beverages for consumption on and immediately adjacent to the Project Improvements and at other locations) and preparation of hot and cold food (through the use of barbecue grills, fire pits and other smoke and/or odor producing means) and beverages at indoor and outdoor facilities on and immediately adjacent to the Project Improvements; (7) sales of services relating to skiing, other over-the-snow activities, and other recreational activities (including, without limitation, ski schools and other forms of individual and group lessons, tours and excursions); (8) public use of the Project Improvements for access to the Mountain Recreational Areas, vehicle passenger drop-off and pick-up, locker room, changing room, rest room and lounge purposes in designated areas, and short-term clothing and equipment storage; (9) parking activities (including, without limitation, activities relating to valet parking or parking relating to adjacent properties); (10)the installation, operation and maintenance of illuminated and non-illuminated signage; (11) concerts and other outdoor and indoor entertainment, performances and special events, including, without limitation, Octoberfest and similar festivals, and art fairs; and (12) any other uses or activities permitted by law. The Commercial/Hotel Activities may occur during daytime and nighttime. (b) Waiver and Release. The Airspace Lot Owner, for itself and its successors and assigns, acknowledges that the Mountain Activities, the Construction Activities and Commercial/Hotel Activities, and the impacts and disturbances generated by them, may occur in and around the Airspace Lot. The Airspace Lot Owner may not assert or claim any violation of this Agreement based on the existence or occurrence of the Mountain Activities, the Construction Activities or the Commercial/Hotel Activities, or impacts and disturbances generated by them. The Airspace Lot Owner, for itself and its successors and assigns, forever waives and releases any actions or claims the Airspace Lot Owner and its successors and assigns may have against the Project Owner and its successors and assigns which in any way arise out of the impacts and disturbances generated from the Mountain Activities, the Construction Activities or the Commercial/Hotel Activities. 625376 15 AKHANS I1/9/07 2:11 PM 27 (c) Lift Tickets and Other Fees. The Airspace Lot Owner acknowledges that no right is created or arises from ownership of the Airspace Lot, either (1) to use the Mountain Recreational Areas; or (2) to any waiver or discount of the prices charged for lift tickets or other fees charged to users of the Mountain Recreational Areas. Any right that the Airspace Lot Owner acquires to use the Mountain Recreational Areas may be created or arise, if at all, only through a separate agreement with or license granted by the owners or operators of the Mountain Recreational Areas and is not derived in any way through ownership of the Airspace Lot. (d) Disclaimer. The Project Owner makes no representations, covenants or warranties to the Airspace Lot Owner concerning the nature, scope, schedule or continuation of activities operated or conducted in or relating to the Mountain Recreational Areas or the Project Improvements. The Airspace Lot Owner, for itself and its successors and assigns, acknowledges that (1)the activities may be discontinued from time to time or permanently after the date of this Agreement; (2) the activities may not be operated or conducted during the same hours, days or months as any schedule in effect or contemplated on the date of this Agreement; (3)the activities may be conducted during more hours (during.both daytime and nighttime), days, and months than any schedule in effect or contemplated on the date of this Agreement; and (4)more activities may be operated or conducted in the Mountain Recreational Areas or the Project Improvements than occur or are contemplated on the date of this Agreement. 14. HOSPITALITY SERVICES; THIRD-PARTY SERVICE PROVIDERS. The Airspace Lot Owner acknowledges and agrees that the Project Owner, in connection with the operation of the Project Improvements, may, but is not obligated to, offer hospitality services to the Airspace Lot Owner, its tenants, and their respective Permittees from time to time. To the extent the Project Owner elects to provide such services, the terms and conditions regarding the provision of such services will be addressed in a separate hospitality services agreement. By way of illustration only, the hospitality services may include items such as maid and laundry service. The Airspace Lot Owner acknowledges and agrees that the Project Improvements, including the Hotel, are a complex and integrated set of improvements and building systems and require a high level of security. In an attempt to (a) maintain the health, safety and comfort of the Project Owner and its Permittees and the Airspace Lot Owner and its Permittees; (b) maintain the integrity of the Project Improvements, including without limitation the Project Structure and the Project Service Elements; and (c)provide a level of security commensurate with industry standards, the Project Owner must limit third-party access to the Project Improvements and must properly screen and select all third-party service providers that enter the Project Improvements. Therefore, the Airspace Lot Owner may not hire or otherwise allow entry into the Project Improvements or Airspace Improvements by any third-party property manager or property service provider (for example and by way of illustration only, cleaning services, plumbers, electricians and other servicemen) without the Project Owner's prior written consent, which consent may be granted, conditioned or withheld in the Project Owner's sole and absolute discretion. As part of its consent, the Project Owner may require background screening and/or training prior to approving any such third-party property manager or property service provider. 15. LIONSHEAD REDEVELOPMENT. The Airspace Lot Owner, for itself and its successors and assigns, acknowledges that the Lionshead Properties may be developed or redeveloped pursuant to the land uses permitted by the zoning resolutions adopted from time to time by the Town and other applicable ordinances, rules and regulations. Without limiting the 625376.15 AICHANS 11/9/072:11 PM 28 foregoing, the Airspace Lot Owner, for itself and its successors and assigns, specifically acknowledges that the Project Owner or any of its affiliates or assignees may redevelop certain Lionshead Properties pursuant to the applicable Master Plan. Such redevelopment activities are referred to as the "Lionshead Redevelopment" in this Agreement. The Airspace Lot Owner will not take any action to oppose, impair or delay in any manner any Lionshead Redevelopment undertaken pursuant to the then current Master Plan. As part of the Lionshead Redevelopment, the Project Owner or any of its affiliates or assignees may seek to include the Lionshead Properties, the Project Improvements and the Airspace Lot in the boundaries of one or more existing or newly organized special districts, which may impose taxes, assessments or other fees or charges upon property within its boundaries. The Airspace Lot Owner will not take any action to oppose, impair or delay in any manner the formation or expansion of any such special district proposed in connection with the Lionshead Redevelopment. The Project Owner makes no representations or warranties regarding the types or locations of improvements that will be constructed as part of the Lionshead Redevelopment, the timing of commencement and completion of the Lionshead Redevelopment or whether or not the Project Owner or its affiliates or assignees will proceed with the Lionshead Redevelopment at all 16. NO VIEW EASEMENT. Notwithstanding any representation made to the Airspace Lot Owner to the contrary by the Project Owner, any real estate agency or any agent, employee or representative of the Project Owner or any real estate agency, and by signing this Agreement the Airspace Lot Owner acknowledges and agrees, there is no easement or other right, express or implied, for the benefit of the Airspace Lot Owner or the Airspace Lot for light, view or air included in or created by this Agreement or as a result of the Airspace Lot Owner owning the Airspace Lot. 17. TAX PARCELS. To the extent the Airspace Lot is not presently defined by Eagle County, Colorado, as a separate tax parcel independent and distinct from the Project Lot, the Project Owner and the Airspace Lot Owner will be cooperate with one another and diligently take all actions reasonably necessary to so establish the Airspace Lot as a separate tax parcel. The parties acknowledge and agree that Operating Costs may include real estate taxes and assessments levied against the Project. 18. SMALL PLANNED COMMUNITY EXEMPTION. The Parties hereby acknowledge and agree that this Agreement constitutes a "declaration" and creates a "common interest community" under CCIOA. Specifically, this Agreement creates a "planned community" under CCIOA, and not a "condominium," as those terms are defined by CCIOA. The planned community created by this Agreement contains only two lots, the Project Lot and the Airspace Lot, and is therefor exempt from CCIOA's provisions pursuant to the exemption contained in Section 38-33.3-116(2) of CCIOA for planned communities containing no more than 20 lots. The Parties acknowledge and agree that the Project Lot and the Airspace Lot will not be bound by or subject to the provisions of CCIOA, except as expressly required under CCIOA, as in effect as of the date of this Agreement. In addition, the parties acknowledge and agree that neither the Project Owner nor the Airspace Lot Owner shall be deemed a "master association" within the meaning of Section 38-33.3-220 of CCIOA. Without limitation on the generality of the foregoing, the Parties acknowledge and agree that the Airspace Lot constitutes an estate above the surface within the meaning of Section 38-32-101, et seq., C.R.S., and not a condominium within the meaning of CCIOA; the Airspace Lot Owner Easements constitute the 625376 15 AKHANS 11/9/072:11 PM 29 sole property interest in the Project Improvements that is held by the Airspace Lot Owner as appurtenances to the Airspace Lot; and there are not any "common elements" or other portions of the Project Improvements in which the Airspace Lot Owner holds any undivided or other ownership interest. 19. CONDOMINIUMIZATION OF AIRSPACE LOT. Notwithstanding but without limiting the provisions of Section 18 above, the Parties acknowledge and agree that the Airspace Lot Owner may, at its election, subject the Airspace Lot to a condominium regime under CCIOA. Regardless of any such condominiumization, the Airspace Lot will continue to be a single lot for all purposes under this Agreement. Any owners' association formed pursuant to CCIOA (the "Association") will be deemed the "Airspace Lot Owner," all owners of such condominium units will act and be treated collectively through the Association under this Agreement and each owner of a condominium unit, by taking title to a condominium unit, irrevocably and unconditionally appoints the Association as its duly authorized representative and attorney-in-fact for all purposes under this Agreement. Notwithstanding that the Association shall be deemed the "Airspace Lot Owner," the Airspace Lot Owner Easements will be deemed granted to the Association for the benefit of its members and the use restrictions on the Airspace Lot will apply to and may be enforced against all or any portions of the Airspace Lot and the owners thereof, as the Project Owner may elect from time to time. In any event, each owner of a portion of the Airspace Lot, whether condominiumized or not, is subject to all provisions of this Agreement. 20. REMEDIES. Upon the occurrence of any default hereunder by either Party, the non-defaulting Party, in addition to any remedies provided for in this Agreement, has such remedies as may be available at law or equity for such default, and all such remedies are cumulative and non-exclusive. Any and all such remedies may be pursued by the non-defaulting Party, either successively or concurrently, and the exercise of any one remedy will not bar the exercise of any other remedy. In the case of a default by the Airspace Lot Owner, such remedies as may be afforded by law or equity are specifically cumulative with, and non-exclusive of, the Project Owner's rights under the other provisions of this Agreement to exercise the Expense Lien. 21. ATTORNEYS' FEES. In the event any litigation or legal proceeding arises out of this Agreement and is prosecuted to final judgment, the prevailing Party will be entitled to recover from the other all of the prevailing Party's costs and expenses incurred in connection therewith, including reasonable attorneys' fees. 22. RUN WITH THE LAND. Except as otherwise expressly provided herein, this Agreement and all the provisions of this Agreement will run with the land and the ownership of the Airspace Lot and the Project Lot, and the Airspace Lot Owner Easements and other provisions of this Agreement will act as an appurtenant benefit and burden for each property which is intended to be benefited and/or burdened thereby and the owner of that respective property. References herein to each Party will include the initial Party named in this Agreement and its successors in interest in the ownership of its property, except as provided for above in Section 19 with regard to the Association. If a Party conveys its interest in its property by an instrument recorded in the Records, then the transferee will automatically be deemed to have assumed and agreed to be bound by this Agreement and will have personal liability for all 625376.15 AKHANS 11/9/072:11 PM 30 obligations hereunder accruing from and after the transfer, and the transferor will thereupon be released and discharged from any and all obligations under this Agreement applicable to the pertinent property which accrue after the date of transfer; provided, however, that the foregoing will not be construed to limit or impair the applicability or enforceability of the Expense Lien for Expense Payments or Capital Payments that are delinquent or owing at the time of transfer, and the transferee will acquire subject to all such Expense Lien rights (whether or not any specific evidence thereof has been recorded). 23. ESTOPPELS AND CONFIRMATIONS. Each Party, within 20 days after receiving a notice requesting the same from any other Party, will deliver a written estoppel certificate setting forth that, to the knowledge of the responding Party, the requesting Party is not in default in the performance of any of its obligations under this Agreement, or, if in default, setting forth the nature of such default, and setting forth the status of such other matters related to this Agreement as the requesting Party may reasonably specify for disclosure. Any incorrect statement in a certificate which is tendered in response will only preclude the corresponding claim or defense by the responding Party, as appropriate, and the responding Party will not otherwise have any liability therefor. If the responding Party fails to deliver the requested estoppel certificate within the requisite time period, then it will be conclusively deemed that the requesting Party is not then in default of any obligations under this Agreement, and that any other matters requested for disclosure are in the status most favorable to the requesting Party, as determined by the requesting Party. If any Party requests and receives from any other Party more than two sets of estoppel certificates during any period of 12 successive months, then the requesting Party will t" reimburse the responding Party upon demand for the reasonable out-of-pocket costs and expenses (including attorneys' fees) incurred by the responding Party in connection with each additional certificate requested by the requesting Party during that same 12-month period. 24. TERM; AMENDMENT. The term of this Agreement is perpetual, unless terminated by the Parties; provided, however, to the extent (and only to the extent) the Rule Against Perpetuities applies to any provision of this Agreement under Colorado law, then such provision shall terminate if it does not become a vested (rather than contingent) interest in accordance with Colorado law prior to the date which is 21 years after the death of the last survivor of George W. Bush, or his respective descendents (by blood or adoption) living as of the malting of this Agreement. Any amendment, modification or termination of this Agreement may be effectuated only by the Parties' mutual execution of a written instrument recorded in the Records. Any provision hereof may be waived only to the extent set forth in a written instrument executed by the Party against whom enforcement of the claimed waiver is sought. 25. BUSINESS DAYS; NOTICES. If any date or the expiration of any period referenced in this Agreement falls on a day which is not a United States business day(i.e., Saturday, Sunday or legal holiday for which U.S. mail service is not provided), then the pertinent date or period will be deemed extended to the next succeeding business day. Any notice required under this Agreement will be in writing and will be deemed given (a) upon receipt by the Party to be notified when sent by (i)hand delivery; (ii) facsimile; or (iii) national courier such as Federal Express, when confirmation of delivery or transmission is available and used with any such means; or (b)three business days after being deposited in the United States Postal Service, postage prepaid, for first class delivery. A Party may change its address or facsimile number for notice purposes by giving notice thereof to the other Parties in accordance with the foregoing, 625376.15 AKHANS 11/9/07 2 11 PM 31 and legal counsel for a Party may give notice on such Party's behalf. For notice purposes, the address and facsimile information for each Party is initially as follows: If to the Project Owner: Arrabelle at Vail Square, LLC do The Vail Corporation 390 Interlocken Cresent, Suite 1000 Broomfield, CO 80021 Attn: Legal Department Fax: 303-404-6422 If to the Airspace Lot Owner: Arrabelle at Vail Square, LLC c/o The Vail Corporation 390 Interlocken Cresent, Suite 1000 Broomfield, CO 80021 Attn: Legal Department Fax: 303-404-6422 26. SEVERABILITY. If any provision of this Agreement as applied to any particular circumstance will be adjudicated as or otherwise become illegal and unenforceable, such illegality will not affect the enforceability of any other provision of this Agreement, or the offending provision as applied to circumstances for which it is enforceable, it being intended that all provisions of this Agreement be valid and enforceable to the fullest extent legally permissible. 27. CAPTIONS; GENDER. The captions and headings of the various provisions of this Agreement are for convenience and identification only, and will not be deemed to limit or define the operative provisions of this Agreement. References herein to the singular will include the plural, and the plural the singular, and references herein to any one gender will be deemed to include all genders. 28. NO PUBLIC DEDICATION. Nothing herein contained will be deemed to be a grant or dedication of any portion of the Project Improvements to or for the general public or for any public purposes whatsoever, it being the intention of the Parties hereto that this Agreement be strictly limited to the purposes herein expressed. Furthermore, the Project Owner may limit or preclude vehicular or pedestrian access over the Project Improvements to the extent reasonably necessary to prevent or defend against any third party claim of an implied public dedication or of the acquisition of prescriptive easement or ownership rights impacting the Project Improvements (notwithstanding the other provisions of this Agreement which would indicate or require to the contrary). 29. GOVERNING LAW. This Agreement and all of its provisions will be governed by and construed in accordance with the laws of the State of Colorado. 30. INTEGRATION. This Agreement constitutes the entire understanding and agreement between the Parties with respect to the subject matter hereof, and any prior or extrinsic understandings or agreements concerning the same subject matter are superceded hereby and will be of no force or effect. 625376.15 AKHANS 11/9/072:11 PM 32 31. NO MERGER OF INTERESTS. The Vail Corporation's rights and interests under this Agreement as the Project Owner are separate and distinct from its rights and interests under this Agreement as the Airspace Lot Owner. The fact that all interests in the Project Lot and the Airspace Lot are, as of the date of this Agreement, vested in The Vail Corporation will not cause a merger of those interests or any extinguishment of this Agreement or the rights and interests created by this Agreement. It is intended that no such merger occur and this Agreement remain in full force and effect from and after the date hereof. [Balance of Page Intentionally Left Blank] i. 625376 15 AKHANS 11/9/072:11 PM 33 IN WITNESS WHEREOF, the Project Owner and the Airspace Lot Owner have made this Agreement as of the day, month and year first above written. "PROJECT OWNER" ARRABELLE AT VAIL SQUARE, LLC, a Colorado limited liability company By: Vail Resorts Development Company, a Colorado corporation, as Managing Member By: DRAFT Keith Fernandez, President "AIRSPACE LOT OWNER" ARRABELLE AT VAIL SQUARE, LLC, a Colorado limited liability company By: Vail Resorts Development Company, a Colorado corporation, as Managing Member By: DRAFT Keith Fernandez, President 625376.15 AKHANS 11/9/072:11 PM 34 • STATE OF COLORADO ) ) ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of , 200 , by Keith Fernandez as President of Vail Resorts Development Company, a Colorado corporation, as Managing Member of Arrabelle at Vail Square, LLC, a Colorado limited liability company, as the "Project Owner." WITNESS my hand an official seal. My commission expires: Notary Public 625376.15 AKHANS 11/9/07 2:11 PM 35 STATE OF COLORADO ) ) ss: COUNTY OF EAGLE ) The foregoing instrument was acknowledged before me this day of , 200 , by Keith Fernandez as President of Vail Resorts Development Company, a Colorado corporation, as Managing Member of Arrabelle at Vail Square, LLC, a Colorado limited liability company, as the "Airspace Lot Owner." WITNESS my hand an official seal. My commission expires: Notary Public 625376.15 AKHANS 11/9/072:1 1 PM 36 • JOINDER OF LIENOR The undersigned, the beneficiary under that certain deed of trust dated January 31, 2006, and recorded February 1, 2006, at Reception No. 200602695 in the office of the Clerk and Recorder for Eagle County, Colorado, as the same may be amended or supplemented from time to time (the "Deed of Trust"), which Deed of Trust encumbers the Project Lot and the Airspace Lot, hereby consents to and approves this Reciprocal Easements and Covenants Agreement (this "RECA"), and does hereby agree that the lien of the Deed of Trust is and shall be subordinate and inferior to the easements, covenants, conditions, restrictions and other terms established or disclosed by this Reciprocal Easements and Covenants Agreement, none of which shall be extinguished, limited or affected to any extent by any foreclosure of the Deed of Trust; provided, however, that the lien of the Deed of Trust, as a lien recorded prior to this RECA, has and will continue to have priority over the "Expense Lien" created by this RECA. U.S. BANK NATIONAL ASSOCIATION, as Administrative Agent By DRAFT Name: Title: STATE OF COLORADO ) ) ss COUNTY OF ) The foregoing instrument was acknowledged before me this day of , 200_, by as of U.S. Bank National Association, as Administrative Agent. Witness my hand and official seal. My commission expires: Notary Public 625376.15 AKHANS 11/9/07 2:1 I PM 37 EXHIBIT A PROJECT LOT Lot 1, Condominium Plat of Vail Square, a Resubdivision of Lot 1, Lionshead Sixth Filing, Town of Vail, County of Eagle, State of Colorado, recorded in the real property records of Eagle County, Colorado on , 200_ at Reception No. 625376.15 AKHANS 11/9/07 2:11 PM A-1 • EXHIBIT B AIRSPACE LOT Airspace Lots A, B, C, D, E and F, Condominium Plat of Vail Square, a Resubdivision of Lot 1, Lionshead Sixth Filing, Town of Vail, County of Eagle, State of Colorado, recorded in the real property records of Eagle County, Colorado on , 200_ at Reception No. . 625376.15 AKHANS 11/9/072:11 PM B-1 1. • EXHIBIT C STORAGE AREAS (See Attached) 625376.15 AKHANS 11/9/07 2:11 PM C-1 t I X nnoS, VA lv J a le 1 I �! - 1 i£4�ii i��, I�i i _ 1 z t-', �.t Le.-2N Cf liouigf;s 'liti : I� I ,I I. 1.-1- aid p I r Le.-2N 1-;c4 I � ��.1(tl.,) �SIF¢�IE: I� i I 1 iS � ��o I i...., �i`,' � 1 f' 2F e I II 1 11 I � d Et i i ( Y 6 O V J `csri 3 U - :t1 6 i G K 0 F��. v Yip'd 7 - ::'. =‘,.; 1-1 yey 1 1 ® uo z 1 1 _ G n ll IIW 1�� -� L ''f H O f 'i 1':Q ❑ 0 KIWI• I_] _ @ ,0: i7: cam fl r� • II E 1 — �� '7,7--1\--‘7,7 i%o- p51 Il. 111=11 �F•MI ....� +i - j;� '•,, -Ilar M ).1., L i I g a . 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Alacima.......... ,' , 7*T".----- ,.T:,-,- ' -. — .I I { -- `, ' . • . . ,. , _........ : . :• 1 I. I 1 1 ' :./„,,, , :,•;-:•,•- i, , . • ___..__.. .•••• : • • . . 7-4 :,'"...-le ‘,7.,F," .• .• : . • . : , i i i • • . • ,-1 ,..•..v r If: ,,.. . . . ,'..., • 0 • EXHIBIT D PERMITTED EXCEPTIONS 1. Real property taxes and assessments for the year 2007 and subsequent years. 2. All building, zoning and other applicable laws and regulations of the Town of Vail and any other governmental entity with jurisdiction over the Project. 3. All federal, state or local laws, ordinances, rules, regulations, covenants and rights-of- way, whether or not recorded in the real property records of Eagle County, Colorado. 4. Taxes, assessments, fees or charges, if any, resulting from the inclusion of the Project in any special district, whether presently existing or hereafter formed. 5. Any defects in or objections to or matters affecting title to the Project caused by Grantee or anyone claiming by, through or under Grantee. 6. Any condition that is open and obvious on the ground or which a survey would disclose. 7. Any facts, rights, interests or claims thereof, not shown by the public records but that could be ascertained by an inspection of the Unit or Project or that may be asserted by persons in possession of the Project (but excluding leases or tenancies of the Unit). 8. Easements, or claims thereof, not shown by the public records. 9. Any encroachment, encumbrance, violation, vacation or adverse circumstance affecting the title that would be disclosed by an accurate and complete survey of the Project and not shown by the public records. 10. Water rights, claims or title to water, whether or not shown by the public records. 11. RIGHT OF PROPRIETOR OF A VEIN OR LODE TO EXTRACT AND REMOVE HIS ORE THEREFROM SHOULD THE SAME BE FOUND TO PENETRATE OR INTERSECT THE PREMISES AS RESERVED IN UNITED STATES PATENT RECORDED MAY 24, 1904, IN BOOK 48 AT PAGE 503 AND IN UNITED STATES PATENT RECORDED SEPTEMBER 04, 1923, IN BOOK 93 AT PAGE 98. 12. RIGHT OF WAY FOR DITCHES OR CANALS CONSTRUCTED BY THE AUTHORITY OF THE UNITED STATES AS RESERVED IN UNITED STATES PATENT RECORDED MAY 24, 1904, IN BOOK 48 AT PAGE 503 AND RECORDED SEPTEMBER 4, 1923 IN BOOK 93 AT PAGE 98 AND JULY 13, 1939 IN BOOK 123 AT PAGE 617. 13. TERMS, CONDITIONS AND PROVISIONS OF TRENCH, CONDUIT AND VAULT AGREEMENT RECORDED MARCH 23, 2001 AT RECEPTION NO. 752849. 625376.15 AKHANS 11/9/07 2:11 PM D-1 • 14. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS AND NOTES AS ESTABLISHED OR SHOWN ON THE PLAT OF LIONSHEAD SIXTH FILING RECORDED NOVEMBER 21, 2005 AT RECEPTION NO 937664. NOTE: ACKNOWLEDGMENT OF SATISFACTION OF TERMINATION CONDITIONS RECORDED JANUARY 6, 2006 AS RECEPTION NO. 200600396. 15. TERMS, CONDITIONS AND PROVISIONS OF LIONSHEAD CORE PROTECTIVE COVENANTS AS CONTAINED IN INSTRUMENT RECORDED NOVEMBER 21, 2005 AT RECEPTION NO 937603. 16. TERMS, CONDITIONS AND PROVISIONS OF CORE SITE DEVELOPMENT AGREEMENT RECORDED NOVEMBER 21, 2005 AT RECEPTION NO 937604 AND AMENDMENT THERETO RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937605 AND PARTIAL DISCHARGE AND RATIFICATION RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937676 AND ACKNOWLEDGMENT RE: EASEMENT TERMS RECORDED NOVEMBER 21, 2005 RECEPTION NO. 937674. 17. TERMS, CONDITIONS AND PROVISIONS OF OPERATING COVENANT AGREEMENT RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937675. 18. TERMS, CONDITIONS AND PROVISIONS OF CORE SITE LICENSE AGREEMENT RECORDED NOVEMBER 21, 2005 AT RECEPTION NO 937673. 19. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT TO LION SQUARE CONDOMINIUM ASSOCIATIONS RECORDED NOVEMBER 21, 2005 AT RECEPTION NO 937647. 20. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT TO THE TOWN OF VAIL RECORDED NOVEMBER 21, 2005 AT RECEPTION NO 937648. 21. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT TO THE TOWN OF VAIL RECORDED NOVEMBER 21, 2005 AT RECEPTION NO 937649. 22. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (UTILITIES AND DRAINAGE) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937652 AND AGREEMENT WITH HOLY CROSS ELECTRIC ASSOCIATION, INC. RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937653. 23. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (UTILITIES AND DRAINAGE) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937654. 24. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (DRAINAGE) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO 937655. 625376 15 AKHANS 11/9/07 2 11 PM D-2 �1 4 • 25. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (UTILITIES)RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937656. 26. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (UTILITIES) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937667 AND AGREEMENT WITH HOLY CROSS ELECTRIC ASSOCIATION, INC. RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937668. 27. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT(SERVICE AND EMERGENCY ACCESS) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937672. 28. TERMS, CONDITIONS AND PROVISIONS OF AND MATTERS DISCLOSED IN COVENANT GOVERNING EASEMENTS RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937677. 29. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937632. 30. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937635. 31. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (TUNNEL ACCESS) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937644. 32. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (SURFACE ACCESS) RECORDED NOVEMBER 21, 2005 AT RECEPTION NO. 937645. 33. TERMS, CONDITIONS AND PROVISIONS OF APPARATUS MOVEMENT AGREEMENT RECORDED JANUARY 23, 2006 AT RECEPTION NO. 20061649. 34. TERMS, CONDITIONS AND PROVISIONS OF DENSITY ALLOCATION AGREEMENT RECORDED , 200_AT RECEPTION NO. 35. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT (PUBLIC PEDESTRIAN ACCESS)RECORDED , 200_AT RECEPTION NO. 36. TERMS, CONDITIONS AND PROVISIONS OF GRANT OF EASEMENT(PUBLIC TURNAROUND ACCESS) RECORDED , 200_AT RECEPTION NO. 37. TERMS, CONDITIONS AND PROVISIONS OF LOADING/DELIVERY EASEMENT AGREEMENT RECORDED , 200 AT RECEPTION NO. 625376.15 AKHANS 1 1/9/07 2.I I PM D-3 k 38. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS, NOTES AND OTHER TERMS, CONDITIONS AND PROVISIONS AS ESTABLISHED OR SHOWN ON THE CONDOMINIUM PLAT FOR VAIL SQUARE, A RESUBDIVISION OF LOT 1, LIONSHEAD SIXTH FILING, RECORDED , 200 AT RECEPTION NO 39. TERMS, CONDITIONS AND PROVISIONS OF RECIPROCAL EASEMENTS AND COVENANTS AGREEMENT RECORDED , 200_AT RECEPTION NO 40. TERMS, CONDITIONS AND PROVISIONS OF CONDOMINIUM DECLARATION FOR ARRABELLE AT VAIL SQUARE RESIDENTIAL CONDOMINIUMS RECORDED , 200_AT RECEPTION NO 41. EASEMENTS, CONDITIONS, COVENANTS, RESTRICTIONS, RESERVATIONS, NOTES AND OTHER TERMS, CONDITIONS AND PROVISIONS AS ESTABLISHED OR SHOWN ON THE CONDOMINIUM PLAT FOR ARRABELLE AT VAIL SQUARE RESIDENTIAL CONDOMINIUMS RECORDED , 200_AT RECEPTION NO (References herein to the "Project" include the Project Lot and Airspace Lot.) I 1 625376.15 AKHANS 11/9/07 2:11 PM D4 1'