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HomeMy WebLinkAboutTHE PADS AT HARMONY FILING 1 - Filed OA-OTHER AGREEMENTS - 2007-11-28POWER OF ATTORNEY KNOW ALL PERSONS BY THESE PRESENTS: THAT, I, Scott Gesell, in my capacity as General Counsel of ARC Communities 2 LLC (the "Company"), reposing special trust and confidence in Kelly Elefant, have made, constituted and appointed, and by these presents do make, constitute and appoint Kelly Elefant to be my true and lawful attorney -in -fact, to act for me and in my name, place and stead, to execute and deliver that certain Deed of Dedication to the City of Ft. Collins with respect to the right of way and/or strips of land in front of the manufactured housing community owned and operated by the Company which has been required by the City in connection with approval of The Pads at Harmony, Filing 1, located in Section 32, Township 7 North, Range 68 West of the 6th P.M., City of Fort Collins, County of Larimer, State of Colorado. I hereby declare that the Deed of Dedication which was or is given by my attorney -in -fact, made or done for the aforesaid purposes, shall be as good, valid, and effectual as if they had been signed, sealed and delivered by me in my own proper person; and I hereby undertake at all times to ratify whatsoever my said attorney -in -fact shall lawfully do or cause to be done in or concerning the premises by virtue of these presents. This power of attorney shall continue to be effective even though I become disabled, incapacitated, or incompetent. This power of attorney expires March 15, 2007. IN WITNESS WHEREOF, I have hereunto set my hand and seal the date set forth below. STATE OF COLORADO COUNTY OF } ss: 7 Cott GoOr s General Counsel of C ConirriUnities 2 LLC The foregoing instrument was acknowledged before me this 1st day of February, 2007, by Scott Gesell, as General Counsel of ARC Communities 2 LLC. Witness my hand and official seal. My Commission expires: :M 7 Provisions of the Agreement, the signature of the Manager shall be sufficient to bind the Company in every manner on any agreement or on any document. 3.4 Devotion of Time. The Manager shall devote such time to the affairs of the Company as the Manager, in his respective sole discretion, shall deem appropriate. 3.5 Conflicts. The Manager in its sole discretion may have other business interests and may engage in other activities, in addition to those relating to the Company, including the rendering of advice or services of any kind to other investors and the making of other investments. Notwithstanding the foregoing, all opportunities available to the Company or its Manager to make investments that meet the investment objectives of the Company or its Affiliates (as hereinafter defined), and upon which the Company or its Affiliates are in a position to act, shall be presented to the Members of the Company for consideration as an investment opportunity for the Company or its Affiliates. 3.6 Affiliates. The validity of any transaction, agreement or payment involving the Company and any Affiliate of the Manager permitted by the terms of this Agreement shall not be affected by reason of the relationship between the Manager and such Affiliate, provided, however, that the Manager shall exercise such care and observe such formalities as may be reasonably necessary and appropriate to observe the separateness of the operations of its business and existence from that of its Members. "Affiliate" as used in this Agreement shall mean any entity controlled by or under common control with any Member. 3.7 Resolution of Conflicts. Unless otherwise expressly provided herein, (i) whenever a conflict of interest exists or arises between any Manager or any of its Affiliates, on the one hand, and the Company, or a Member on the other hand, or (ii) whenever this Agreement or any other agreement contemplated herein or therein provides that the Manager shall act in a manner which is, or provides terms which are, fair and reasonable to the Company, or any Member, the Manager shall resolve such conflict of interest, taking such action or provide such terms, considering in each case the relative interest of each party (including its own interest) to such conflict, agreement, transaction or situation and the benefits and burdens relating to such interest, any customary or accepted industry practices, and any applicable generally accepted accounting practices or principles. In the absence of bad faith by the Manager, the resolution, action or terms so made, taken or provided by the Manager shall not constitute a breach of this Agreement or any 7 368183.02-New York Server 3A - MSW EXHIBIT "A" ATTACHED TO AND MADE A PART OF THE DECLARATION OF JOINT ACCESS EASEMENT BETWEEN HARMONY EXECUTIVE PARK LLC, A COLORADO LIMITED LIABILITY COMPANY ("EXECUTIVE PARK") AND FRONT RANGE RETAIL COMPANY, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY C FRRC' ). Legal Description of the Executive Park Property Lots 1 and 2, according to the Plat of The Pads At Harmony, Filing 1, Fort Collins, Colorado, prepared by Stantec Consulting Inc. dated and recorded in the land records of Larimer County, Colorado at Book Page 8 B CJP 738197 v3 1018182-021001 2/20/2007 EXHIBIT "B" ATTACHED TO AND MADE A PART OF THE DECLARATION OF JOINT ACCESS EASEMENT BETWEEN HARMONY EXECUTIVE PARK LLC, A COLORADO LIMITED LIABILITY COMPANY ("EXECUTIVE PARK") AND FRONT RANGE RETAIL COMPANY, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY C FRRC'). Legal Description of the FRRC Property Lots 1, 2, 3 and 14, and Tracts A, B, G and H, according to the Plat of Subdivision of Front Range Village, Fort Collins, Colorado, prepared by Stantec Consulting Inc. dated and recorded in the land records of Larimer County, Colorado at Book Page 9 B GP 738197 v3 1018182-021001 2/20/2007 EXHIBIT "C" ATTACHED TO AND MADE A PART OF THE DECLARATION OF JOINT ACCESS EASEMENT BETWEEN HARMONY EXECUTIVE PARK LLC, A COLORADO LIMTI'ED LIABILITY COMPANY ("EXECUTIVE PARK') AND FRONT RANGE RETAIL COMPANY, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY ("FRRC"). West Easement LOT t I I I 1 ` 0 1 CA'J55 ALFEE6 EAt9FNf I ���. um.ws n+sw PHt SEPYUTE 000NEM 1 `� FROaF RNgf RET/l I I 1 f i, .uGl I, — — _ 0 — % J I neoPEnttcl�s r8 11 MOBILE HOMEPARK II E PADS AT i HARMOW _. n+aoM �NIpNS: fS.S16 Ua 1.I� Park) PNOPFRry lME � _ E � E I Mill 4111 tilt, II ,r,f PROSAT P.Y 0 120' lw 210' CROSS ACCESS EA8ENENT MESS EA 17 20 Oa% b13.2007 From Range VOW ���� Fort Cain, CO e0St5 � 10 B C1P 738197 v3 1018182-021001 2/20/2007 EXHIBIT "D" ATTACHED TO AND MADE A PART OF THE DECLARATION OF JOINT ACCESS EASEMENT BETWEEN HARMONY EXECUTIVE PARK LLC, A COLORADO LIMITED LIABILITY COMPANY ("EXECUTIVE PARK") AND FRONT RANGE RETAIL COMPANY, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY C FRRC'). East Easement 11 B UP 738197 v3 1018182-021001 220/2007 other agreement contemplated herein or of any duty or obligation of the Manager at law or otherwise. 3.8 Discretion. Whenever in this Agreement the Manager is permitted or required to make a decision (i) in his "sole discretion" or "discretion" or under a grant of similar authority or latitude, the Manager shall be entitled to consider only such interests and factors as he desires, including his own interest, and shall, to the fullest extent permitted by law, have no duty or obligation to give any consideration to any interest of factors affecting the Company or the Members, or (ii) in his "good faith" or under another expressed standard, the Manager shall act under such express standard and shall not be subject to any other or different standards imposed by this Agreement or any other agreement contemplated herein or by relevant provisions of law or in equity or otherwise. 3.9 Tax Elections. The Manager is not obligated to but may, in his sole discretion, make (and if made, may revoke) the election referred to in Section 754 of the Internal Revenue Code of 1986, as amended, or any similar provision enacted in lieu thereof. Each of the Members will, upon request, supply the information necessary to properly give effect to such election. 3.10 Reserved Authority 3.10.1 Limitations. Anything in this Agreement to the contrary notwithstanding, the Manager shall have no authority to make a distribution to any Member on account of its interest in the Company if such distribution would violate Section 18-607 of the Act or other applicable law; 3.10.2 Independent Manager. The Company shall at all times have one or more Independent Managers. A person is considered an "Independent Manager" if he is an individual reasonably satisfactory to Note Holder (as defined in the Loan Agreement) who shall not have been at the time of such individual's appointment, and may not have been at any time during the preceding five (5) years and shall not during its tenure as an Independent Manager be (i) a shareholder, director, officer, employee, partner, member, attorney or counsel of the Company or any of its members, subsidiaries or affiliates (other than his or her service as an independent director, independent manager, special member or other similar capacity), (ii) a customer of, or supplier to, or any other person or entity who derives any of its purchases or revenues for its activities with the Company or any of its members, subsidiaries or affiliates, (iii) a person or other entity controlling or under common control with any such member, customer, supplier or other person or entity, or (iv) a member of the immediate family of any such 8 368163.02-New York Sava 3A - MS W shareholder, director, officer, employee, partner, customers, supplier or other person or entity. As used herein, the term "control" means the possession, directly or indirectly, of the power to direct or cause the direction of the management and Policies of a person or entity, whether through ownership of voting securities, by contract or otherwise. Notwithstanding the foregoing provisions of this Section 3.10.2, until the le securitization of the Morgan Stany Facility occurs, the requirements of this section with respect to an Independent Manager shall be satisfied by having one (1) such Independent Manager. An Independent Manager shall be a manager within the meaning of the Act. To the fullest extent permitted by law, including Section 18-1101(c) of the Act, an Independent Manager shall consider only the interests of the Company, including its respective creditors, in acting or otherwise voting on the matters referred to in this Section 3.1o. No resignation or removal of an Independent Manager, and no appointment of a successor Independent Manager, shall be effective until such successor (i) shall have accepted his or her appointment as an Independent Manager by a written instrument, and (ii) shall have executed a counterpart to this Agreement as required by Section 2_6. In the event of a vacancy in the position of Independent Manager, the Member shall, as soon as practicable, appoint a successor Independent Manager. All right, power and authority of the Independent Manager shall be limited to the extent necessary to exercise those rights and perform those duties specifically set forth in this Agreement. No Independent Manager shall at any time serve as trustee in bankruptcy for the Company or any affiliate of the Company. Notwithstanding any other provision of this Agreement and any provision of law that otherwise so empowers the Company, the Member, the Manager or any other Person, neither the Member nor the Manager nor any other Person shall be authorized or empowered, nor shall they permit the Company, without the prior unanimous written consent of the Member, the Manager and all of the Independent Managers, to take any of the following actions: a) To the fullest extent permitted by law, the dissolution, liquidation, consolidation, merger of the Company and/or the sale of all or substantially all of the assets of the Company; b) The engagement by the Company in any other business other than the ownership and operation of manufactured home communities financed under the Morgan Stanley Facility; c) The filing, or consent to the filing, of bankruptcy or insolvency petitions, any general assignment for the benefit E 368183.02-New York Sava 3A - MSW of creditors, or the institution of any other insolvency Proceedings; or d) The amendment of Section 2.7 or this Section 3.10 of this Agreement, or any other Section of this Agreement with respect to any provision thereof necessary or appropriate for the Company to remain a single -purpose, bankruptcy - remote entity provided, however, that none of the foregoing actions shall be authorized unless there is at least one Independent Manager then serving in such capacity. 3.11 Signatures. The Manager or appointed officer, as appropriate, shall have authority to execute all instruments in the name of the Company as are consistent with this Agreement. For all transactions requiring the approval of the Members as described above, the Manager or appointed officer shall have the authority to execute such contracts and other instruments following its receipt of the requisite approval by the Member as described above evidenced by an appropriate executed resolution. 3.12 Number, Tenure and Qualifications. Unless otherwise agreed by the Member, the Manager and each Independent Manager of the Company shall each respectively be a natural person of the age of 18 years or older who need not be a resident of Delaware or a Member of the Company. The initial Manager of the Company shall be Scott D. Jackson. The Initial Independent Manager shall be Carrie L. Tillman. For all purposes other than those set forth in Section 3.10.2., Scott D. Jackson shall have the sole authority to act as the Manager for the Company. The Manager shall be elected by vote of the Members at the annual meeting of Members, provided, however, that the Manager shall hold office until the next annual meeting of Members and, thereafter, until his successor has been elected and has qualified. Each Independent Manager shall hold office until he resigns, dies or is otherwise disqualified, at which time the Member shall elect another Independent Manager. Additionally, the Company hereby designates Scott L. Gesell as an authorized person on behalf of the Company within the meaning of the Act and he has executed, delivered and filed the Certificate of Formation of the Company and (the "Organizing Manager"), shall have the authority to take all actions necessary to form the Company and qualify it to conduct business in the various states or jurisdictions where it owns properties, but whose authority shall expire on or before April 30, 2002. 3.13 Expenses. Any Member of the Company, and the Manager, Organizing Manager or Independent Manager, shall be entitled to reimbursement from the Company for any reasonable expenses incurred by such person/entity in performing his/its 10 368183.02-New York Saver 3A . MSW duties under this Agreement 3.14 Tax Matters Partner. ARC MEZZ 2 LLC shall be designated as the "Tax Matters Partner° pursuant to the Internal Revenue Code of 1986, as amended, from time to time (or any corresponding provisions of succeeding law). As such, the Tax Matters Partner shall be the party designated to receive all notices from the Internal Revenue Service which pertain to the tax affairs of the Company, and shall be responsible for distributing necessary tax information after the end of each fiscal year to the Members pursuant to this Agreement. The Tax Matters Partner shall also act on behalf of the Company in all tax disputes. 3.15 Officers and Related Persons. The Manager shall and terminate officers of the have the authority to appoint Company and retain and terminate employees, agents and consultants of the Company and to delegate such duties to any such officers, employees, agents and consultants as the Manager deems appropriate, including the power, acting individually or jointly, to represent and bind the Company in all matters, in accordance with the scope of their respective duties. ARTICLE 4 Capital Structure and Contributions 4.1 CapitaI Structure. The capital structure of the Company shall consist of one class of common limited liability company interests (the "Common Interests"). All Common Interests shall be identical with each other in every respect. Initially, the Member shall own all of the Common Interests issued and outstanding. 4.2 Capital Contributions. From time to time, the Manager may determine that the Company requires capital and may request the Member to make capital contribution(s) in an amount determined by the Manager. A capital account shall be maintained for the Member, to which contributions and profits shall be credited and against which distributions and losses shall be charged. ARTICLE 5 Profits, Losses and Distributions 5.1 Profits and Losses. For financial accounting and tax purposes, the Company's net profits or net losses shall be determined on an annual basis in accordance with the manner determined by the Manager. In each year, profits and losses shall be allocated entirely to the Member. 11 368183.02-New York Server 3A - MSW 5.2 Distributions, The Manager shall determine Profits available for distribution and the amount, if any, to be distributed to the Member, and shall authorize and distribute on the Common Interests, the determined amount when, as and if declared by the Manager. The distributions of the Company shall be allocated entirely to the Member. ARTICLE 6 Accounting, Banking and Conduct of Business 6.1 Books and Records. Subject to this Article VI the Manager shall keep adequate books and records at the office of the Manager, setting forth a true and accurate account of all business transactions arising out of and in connection with the business of the Company. The books and records of the Company shall be kept on such method of accounting and for such fiscal year as the Manager may determine in his discretion, but consistent with this Agreement and with generally accepted accounting principles. All decisions as to accounting principles and elections will be made by the Manager. All of the Company records subject to inspection under the Act shall be kept at the office of the Manager and the Manager or his designated representative and each Member or its designated representative shall, subject to Section n 6.4, have the right to have access to inspect and copy the contents of such records during normal business hours. The Manager or his designee shall maintain separate bank accounts at federally insured financial institutions for the Company. 6.2 Annual Reports. Within seventy-five (75) days after the end of each Company fiscal year, the Manager shall furnish or shall cause the Company's accountant to furnish each Member with an annual report containing a balance sheet as of the end of such year and statements of income, changes in financial position, and a cash flow statement for the year then ended. 6.3 Tax Information. The Manager shall deliver all necessary tax information to each Member after the end of each fiscal year of the Company. The Manager shall make every effort to furnish such information within seventy-five (75) days after the end of each fiscal year. 6.4 Other Information. The Member shall have the right to obtain from the Company, for any proper purpose which is related to its interest as a Member, at any time upon reasonable notice, true and full information regarding the state of the business and financial condition of the Company and any other information regarding the Company. 12 368183.02-New Yak Servo 3A - MSW 6.5 Conduct of Business. (a) Notwithstanding any other provision of this Agreement and any Company provisions of law that otherwise so empowers the Company or any person or entity on behalf of the Company, the Company shall at all times take actions reasonable or necessary to maintain itself as a "Single Purpose", bankruptcy remote entity. The term 9 rpose" shall mean, with respect to the Company, that at all times since its formation it (i) has not and will not merge into or consolidate with any other entity or, to the fullest extent permitted by law, dissolve, terminate or liquidate in whole or in part, transfer or otherwise dispose of all or substantially all of its assets or change its legal structure, (ii) is formed or organized solely for the purpose of holding, directly, or, indirectly, an ownership interest in the Properties (as defined in Section 1.3 does not and will not engage in any business unrelated totheProperties and the financing thereof, (iv) has not and will not have any assets other than those related to its interest in the Properties or the financing thereof or any indebtedness other than the Morgan Stanley Facility (as defined in Section 1.3) and unsecured trade payables not more than sixty (6o) days past due incurred in the ordinary course of business and in an aggregate amount of not more than 4% of the principal balance, from time to time, of the Morgan Stanley Facility, (v) maintains and will maintain its own separate books and records and its own accounts, in each case which are separate and apart from the books and records and accounts of any other person or entity (hereinafter, a "Person"), (vi) holds and will hold itself out as being a Person, separate and apart from any other Person, (vii) does not and will not commingle its funds or assets with those of any other Person, (viii) conducts and will conduct its own business in its own name, (ix) maintains separate financial statements and will not (A) permit its assets or liabilities to be listed as assets or liabilities on the financial statement of any other Person or (B) include the assets or liabilities of any other Person on its financial statements unless, in connection with any consolidated statements, such assets are clearly identified as the separate assets of such Person, (x) pays and will pay its own liabilities out of its own funds, (xi) observes all limited liability company formalities, and will not, without prior consent of the Note Holder and delivery to Note Holder of a Rating Confirmation (as defined below), amend, modify, terminate or fail to comply with the provisions of its operating agreement and similar organizational documents (the term "Rating Confirmation" means one or more nationally recognized statistical rating agencies designated by Note Holder shall have confirmed in writing that such action shall not result in and of itself, in a 13 368183.02-New York Saver 3A • MSW downgrade, withdrawal or qualification to any outstanding securities, as described and defined in the Loan Agreement), (xii) maintains and will maintain an arm s-length relationship with its affiliates, (xiii) pays and will pay the salaries of its own employees and maintains and will maintain a sufficient number of employees in light of its contemplated business operations, (xiv) does not and will not guarantee or otherwise obligate itself with respect to the debts of any other Person or hold out its credit as being available to satisfy the obligations of any other Person, (xv) does not and will not acquire obligations or securities of its members, (xvi) allocates and will allocate fairly and reasonably shared expenses, including, without limitation, any overhead for shared office space, management fees and services performed by any employee of an affiliate, (xvii) uses and will use separate stationery, telephone numbers, invoices, and checks or otherwise identifies and will identify itself as a separate legal entity from its affiliates, (xviii) does not and will not pledge its assets for the benefit of any other Person or make any loans or advances to any other Person, except the Subordinate Mortgage (as defined in the Loan Agreement), (xix) does and will correct any known misunderstanding regarding its separate identity, (xx) maintains and will maintain adequate capital in light of its contemplated business operations, (xxi) does not and will not own any subsidiary or make an investment in any Person without the consent of the Note Holder and delivery to the Note Holder of a Rating Confirmation, (xxii) has not and will not become insolvent or fail to pay its debts and liabilities (including, as applicable, shared personnel and overhead expenses) from its assets as the same shall become due, (xxiii) has not and will not, to the fullest extent permitted by law, seek dissolution or winding up in whole, or in part, (xxiv) has and will file its own tax returns and not be included on the tax returns of any other Person except as required by applicable law, (xxv) has and will conduct its business solely in its own name or a name franchised or licensed to it by a Person other than an affiliate of the Company and not as a division or part of any other Person in order not to (A) mislead others as to the identity with which such other party is transacting business, or (B) suggest that the Company is responsible for the debts of any third party (including any affiliate of the Company), (xxvi) has not and will not share any common logo with or hold itself out as or be considered as a department or division of any other Person, (xxvii) has and will hold all of its assets in its own name, (xxviii) other than the Guaranty (Full Recourse) (as defined in the Loan Agreement) and the Guaranty (Recourse Obligations) (as defined in the Loan Agreement), has not and will not have any of its obligations guaranteed by any affiliate of the Company (xxix) will not violate or cause to be violated the assumptions made 14 368183.02-New York Sena 3A -MSW with respect to the Company and its manager(s) or member(s), as applicable (collectively, a "Controlling Party) in any opinion letter pertaining to substantive consolidation (a "Non - Consolidation Opinion") delivered to the Note Holder and one or more of the rating agencies in connection with any loans under the Morgan Stanley Facility, and (xxx) has and will have an operating agreement or other organization document which complies with the single -purpose standards and requirements set by the rating agencies at such time. In addition, Manager or managing member of the Company shall be a Single -Purpose Person unless such Person is an individual. Failure of the Company, or the Member or the Manager on behalf of the Company, to comply with any of the foregoing covenants or any other covenants contained in this Agreement shall not affect the status of the Company as a separate legal entity or the limited liability of the Member or the Manager. (b) The Company shall abide by all limited liability company formalities, including the maintenance of current minute books, and the Company shall cause its financial statements to be prepared in accordance with generally accepted accounting principles in a manner that indicates the separate existence of the Company and its assets and liabilities. The Company shall not guarantee the liabilities of any Member or any affiliate of any Member. The Manager of the Company shall make decisions with respect to the business and daily operations of the Company independent of, and not dictated by, any Member or any affiliate of any Member. ARTICLE 7 Events of Dissolution 7.1 Dissolution. The Company shall be dissolved upon the occurrence of any of the following events (each, an "Event of Dissolution"): (a) The approval of the Manager, each Independent Manager and the Member for dissolution; (b) A judicial dissolution of the Company under Section 18-802 of the Act; or (c) The sale, condemnation or taking by eminent domain all of the assets of the Company; or (d) The termination of the legal existence of the last remaining member of the Company or the occurrence of any other event which terminate the continued membership of the last 15 368I83.02-New York Server 3A- MSW remaining member of the Company in the Company unless the Company is continued without dissolution in a manner permitted by this Agreement of the Act. Upon the occurrence of any event that causes the last remaining member of the Company to cease to be a member of the Company, to the fullest extent permitted by law, the personal representative of such member is hereby authorized to, and shall, within 90 days after the occurrence of the event that terminated the continued membership of such member in the Company, agree in writing (i) to continue the Company and (ii) to the admission of the personal representative or its nominee or designee, as the case may be, as a substitute member of the Company, effective as of the occurrence of the event that terminated the continued membership of the last remaining member of the Company in the Company; or (e) Notwithstanding anything to the contrary, during the pendency of the Loan, to the fullest extent permitted by law, the Company may not be dissolved except with the consent of the Lender and Note Holder. Notwithstanding any other provision of this Agreement, the Bankruptcy of the Member or a Special Member shall not cause the Member or Special Member, respectively, to cease to be a member of the Company and upon the occurrence of such an event, the Company shall continue without dissolution. "Bankruptcy" shall mean, with respect to any Person, if such Person (i) makes an assignment for the benefit of creditors, (ii) files a voluntary petition in bankruptcy, (iii) is adjudged a bankrupt or insolvent, or has entered against it an order for relief, in any bankruptcy or insolvency proceedings, (iv) files a petition or answer seeking for itself any reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, (v) files an answer or other pleading admitting or failing to contest the material allegations of a petition filed against it in any proceeding of this nature, (vi) seeks, consents to or acquiesces in the appointment of a trustee, receiver or liquidator of the Person or of all or any substantial part of its properties, or (vii) if 120 days after the commencement of any proceeding against the Person seeking reorganization, arrangement, composition, readjustment, liquidation or similar relief under any statute, law or regulation, if the proceeding has not been dismissed, or if within 90 days after the appointment without such Person s consent or acquiescence of a trustee, receiver or liquidator or such Person or of all or any substantial part of its properties, the appointment is not vacated or stayed, or within 90 days after the expiration of any such stay, the appointment is not vacated. The foregoing definition of "Bankruptcy" is intended to replace 16 368183.02-New York Server 3A - MSW ARC COMMUNITIES 2 LLC ACTION BY WRITTEN CONSENT OF MANAGER Scott D. Jackson, in his capacity as the Manager of ARC Communities 2 LLC ("ARC"), acting pursuant to the provisions of the Limited Liability Company Agreement for ARC ("Agreemenn, hereby takes the following action: Apmointment of Agents and Officers Pursuant to Article III, Section 3.15 of the Agreement, the Manager appoints the following individuals as agents and/or officers of ARC with the responsibilities and authority as set forth following their respective names, subject to compliance with internal policies and procedures: 1.) Scott D. Jackson as Chief Executive Officer and Co -Chief Operating Officer, with the authority to conduct the day to day business of ARC, including the acquisition, sale or financing of its property or assets, engage professional services on its behalf, pay monies, open and close bank accounts, deposit or withdraw monies, execute documents on behalf of ARC, and to take such other actions as may be reasonably necessary or otherwise incidental to the foregoing or as may be necessary to the conduct of business of ARC in accordance with the terms of the Agreement. 2.) John G. Sgrenale as Agent, President and Co -Chief Operating Officer, with the authority to conduct the day to day business of ARC, including the acquisition, sale or financing of its property or assets, engage professional services on its behalf, pay monies, open and close bank accounts, deposit or withdraw monies, execute documents on behalf of ARC, and to take such other actions as may be reasonably necessary or otherwise incidental to the foregoing or as may be necessary to the conduct of business of ARC in accordance with the terms of the Agreement. 3.) Lam Kreider as Vice President, Chief Financial Officer, Treasurer and Chief Information Officer, with the authority to conduct the day to day business of ARC, to maintain its financial books and records, engage and otherwise work with outside auditors, oversee and manage the audit process, establish and maintain adequate internal financial controls, engage ARC in the acquisition, sale or financing of its property or assets, engage professional services on its behalf, pay monies, open and close bank accounts, deposit or withdraw monies, execute documents, including loan and conveyance documents, on behalf of ARC, address the technology and information needs of ARC and to take such other actions as may be reasonably necessary or otherwise incidental to the foregoing or as may be necessary to the conduct of business of ARC in accordance with the terms of the Agreement. 4.) Scott L. Gesell as Agent, Vice President, General Counsel and Secretary, with the authority on behalf of ARC to address its legal needs, engage outside legal services on its behalf, review and negotiate contracts, agreements and other instruments for ARC, execute contracts, deeds, security agreements and other documents conveying or acquiring an interest in real estate, or personally negotiate and settle claims on its behalf and to take such other actions as may be reasonably necessary or otherwise incidental to the foregoing or as may be reasonably necessary to conduct business of ARC in accordance with the terms of the Agreement. and shall supersede and replace the definition of "Bankruptcy" set forth in Sections 18-101 (1) and 18-304 of the Act. Notwithstanding any other provision of this Agreement, each of the Member and Special Members waives any right it might have to agree in writing to dissolve the Company upon the Bankruptcy or the Member or a Special Member, or the occurrence of an event that causes the Member or a Special Member to cease to be a member of the Company. 7.2 Winding Up and Termination (a) In the event of dissolution, the Company shall conduct only such activities as are necessary to wind up its affairs (including the sale of the assets of the Company in an orderly manner), and the assets of the Company shall be applied in the manner, and in the order of priority, set forth in Section 18-804 of the Act. (b) The Company shall terminate when (i) all of the assets of the Company, after payment of or due provision for all debts, liabilities and obligations of the Company shall have been distributed to the Member in the manner provided for in this Agreement and (ii) the Certificate of Formation shall have been canceled in the manner required by the Act. ARTICLE 8 Transfer of Interests in the Companv The Member may sell, assign, transfer, convey, gift, exchange or otherwise dispose of any or all of its Common Interests and, upon receipt by the Company of a written agreement by the person or business entity to whom such Common Interests are to be transferred agreeing to be bound by the terms of this Agreement, such person shall be admitted as a member. Any such admission shall be deemed to occur immediately prior to such transfer. In the event the transferring Member transfers all of its Common Interests, such Member shall cease to be a member of the Company immediately following the transferee's admission to the Company as a member. ARTICLE 9 Exculpation and Indemnification 9.1 Exculpation. Notwithstanding any other provisions of this Agreement, whether express or implied, or obligation or duty at law or in equity, none of the Member, Managers, or any officers, directors, stockholders, partners, employees, representatives or agents of any of the foregoing, nor any 17 368183.02-New York Serve 3A - MSW officer, employee, representative or agent of the Company or any Of its affiliates (individually, a "Covered Person" and, collec- tively, the "Covered Persons") shall be liable to the Company or any other Covered Person for any act or omission (in relation to the Company, this Agreement, any related document or any transaction or investment contemplated hereby or thereby) taken or omitted by a Covered Person in the reasonable belief that such act or omission is in or is not contrary to the best interests of the Company and is within the scope of authority granted to such Covered Person by the Agreement, provided such act or omission does not constitute fraud, willful misconduct, bad faith, or gross negligence. 9.2 lon. To the by law, the Companyihallaindemnify and holdest harmlessteach permfitted Covered Person from and against any and all losses, claims, demands, liabilities, expenses, judgments, fines, settlements and other amounts arising from any and all claims, demands, actions, suits or proceedings, civil, criminal, administrative or investigative ("Claims"), in which the Covered Person may be involved, or threatened to be involved, as a party or otherwise, by reason of its management of the affairs of the Company or which relates to or arises out of the Company or its property, business or affairs. A Covered Person shall not be entitled to indemnification under this Section 9.2 with respect to W any Claim with respect to which such Covered Person has engaged in fraud, willful misconduct, bad faith or gross negligence or (ii) any Claim initiated by such Covered Person unless such Claim (or part thereof) (A) was brought to enforce such Covered Person's rights to indemnification hereunder or (B) was authorized or consented to by the Manager. Expenses incurred by a Covered Person in defending any Claim shall be paid by the Company in advance of the final disposition of such Claim upon receipt by the Company of an undertaking by or on behalf of such Covered Person to repay such amount if it shall be ultimately determined that such Covered Person is not entitled to be indemnified by the Company as authorized by this Section 9.2. 9.3 Amendments. Any repeal or modification of this Article IX by the Member shall not adversely affect any rights of such Covered Person pursuant to this Article IX, including the right to indemnification and to the advancement of expenses of a Covered Person existing at the time of such repeal or modification with respect to any acts or omissions occurring prior to such repeal or modification. ARTICLE 10 Miscellaneous 18 368183.02-N" Ymk Server 3A - MSW 10.1 Amendments. Subject to the provisions of Section 2.7.7 herein, amendments to this Agreement and to the Certificate of Formation shall be approved in writing by the Member. An amendment shall become effective as of the date specified in the approval of the Member or if none is specified as of the date of such approval or as otherwise provided in the Act. 10.2 Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, such Provision shall be ineffective to the extent of such invalidity or unenforceability; provided, however, that the remaining provisions will continue in full force without being impaired or invalidated in any way unless such invalid or unenforceable provision or clause shall be so significant as to materially affect the expectations of the Member regarding this Agreement. Otherwise, any invalid or unenforceable provision shall be replaced by the Member with a valid provision which most closely approximates the intent and economic effect of the invalid or unenforceable provision. 10.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware without regard to the principles of conflicts of laws thereof. 10.4 Limited Liability Company. The Member intends to form a limited liability company and does not intend to form a Partnership under the laws of the State of Delaware or any other laws. 10.5 _Binding Agreement. Notwithstanding any other provision of this Agreement, the Member agrees that this Agreement constitutes a legal, valid and binding agreement of the Member, and is enforceable against the Member by the Independent Manager, in accordance with its terms. In addition, the Independent Manager shall be intended beneficiary of this Agreement. 10.6 Effectiveness. Pursuant to Section 18-201(d) of the Act, this Agreement shall be effective as of the time of the filing of the Certificate of Formation with the office of the Secretary of State of the State of Delaware. THE BALANCE OF THIS PAGE INTENTIONALLY LEFT BLANK 19 3681 R3.02-New York Server 3A. MSW IN WITNESS WHEREOF, the undersigned has duly executed this Agreement as of the day first above written. ARC MEZZ 2 LLC By: Name: SCOTT D. JACKSON Title: MANAGER Independent Manager/Special Member CC arrrie Tillma 20 C:\WINDOWS\Tamperary Internet Files\0=136\0perating Agree40nt"0C IN WITNESS WHEREOF, the undersigned has duly executed this Agreement as of the day first above written. ARC MEZZ 2 LLC By: Name: SCOTT D. JACKSON Title: MANAGER Independent Manager/Special Member Carrie L. Tillman PFI 368183.02-New Yolk Server 3A - MSW 11111II II IN III 111111 l l �11111111111111 LSCOTT ARIMER COOUNTYLCOK "`°T"" 2006-0084190 16 04:02� PAGES - 27 FEE $136.00 DOC $0.00 #656365 DECLARATION OF JOINT ACCESS EASEMENT THIS DECLARATION is made on the date hereinafter set forth by HARMONY EXECUTIVE PARK LLC, a Colorado Limited Liability Company ("Executive Park") and AVG HARMONY, LLC, a Delaware Limited Liability Company ("AVG"). Executive and AVG are sometimes hereinafter referred to jointly as "Declarants." RF.rTTAT..4 A. Executive Park is the owner of that certain parcel of real property (hereinafter referred to as the "Executive Park Property") situate in the City of Fort Collins, County of Larimer, State of Colorado, legally described as set forth on Exhibit "A" attached hereto and incorporated herein by this reference. B. AVG is the owner of that certain parcel of real property (hereinafter referred to as the "AVG Property") situate in the City of Fort Collins, County of Larimer, State of Colorado, legally described as set forth on Exhibit "B" attached hereto and incorporated herein by this reference. 'C.- Declarants desire to establish a temporary non- exclusive easement and right-of-way over and across that portion of the Executive Park Property described on Exhibit "C" attached hereto and incorporated herein by this reference (which easement is hereinafter referred to as the Temporary Easement"), and to establish a perpetual, reciprocal non-exclusive easement and right-of-way over and across that portion of the Executive Park Property described on Exhibit "E" attached hereto and incorporated herein by this reference (which easement is hereinafter referred to as the "East Easement"), and to establish a perpetual, reciprocal non-exclusive easement and right-of-way over and across that portion of the AVG Property described on Exhibit "D" attached hereto and incorporated herein by this reference (which easement is hereinafter referred to as the "West Easement"). The East Easement and the West Easement are sometimes hereinafter referred to collectively as the "Access Easement." HASLER, FONFARA AND MAXWELL 125 SOUTH HOWES, 6TH FLOOR POST OFFICE BOX 2267 FORT COLLINS, CO 80522 AGREEMENT NOW, THEREFORE, for Ten Dollars ($10.00) and other valuable consideration, the receipt and adequacy of which are hereby confessed and acknowledged, Declarants do hereby create, declare, dedicate and establish (i) a temporary, non-exclusive easement on, over and across the Temporary Easement, and (ii) a perpetual, reciprocal non-exclusive easement on, over and across the Access Easement, for the purpose of providing joint and reciprocal vehicular and pedestrian access to the Executive Park Property and the AVG Property, subject to the terms and conditions set forth below. 1. The owner of the Executive Park Property and the owner of the AVG Property shall have the right at any time and from time to time to construct, install, maintain and repair a temporary paved access driveway and appurtenant improvements over and upon the Temporary Easement, and a permanent paved access driveway, pedestrian trail and appurtenant improvements over and upon the Access Easement. Prior to commencement of construction of any such improvements, the constructing party shall have received the written approval of the plans for such improvements from the other party, which approval shall not be unreasonably withheld or delayed, as well as final approval by the City of Fort Collins ("City") of the plans for such construction, and any building and other permits required by the City. All work performed on any of the driveway and appurtenant improvements shall be performed by the constructing party in a good and workmanlike manner, and in accordance with the approved plans and all applicable laws, rules, orders and regulations of the City and other applicable governmental authorities, if any. Upon completion of such improvements, the party completing same shall notify the other party in writing of the amount of the total costs incurred in constructing such improvements (including with such notice copies of all invoices or other documentation evidencing the costs incurred for such work) and a lien release for work performed on the Temporary Easement or the Access Easement, as applicable, releasing any lien for services rendered and materials supplied on the Access Easement or the Temporary Easement. With respect to any temporary paved access driveway and appurtenant improvements (which shall not be installed more than fifteen [15] days prior to the anticipated issuance of the first certificate of occupancy for building improvements constructed on the AVG Property following the date hereof), AVG shall bear all cost of installation, maintenance and removal (and restoration of the Executive Park Property, if applicable). With respect to permanent improvements constructed pursuant to the foregoing, the non -constructing party W&H 10/16/06) 2 shall reimburse the constructing party for the non -constructing party's pro rata share of the actual cost of construction of such improvements within thirty (30) days following receipt of notice, invoices and lien waivers in accordance with the following: (i) AVG shall bear the entire cost of construction of improvements on and with respect to the West Easement; and (ii) Executive Park shall bear 2/3 of the actual cost and AVG shall bear 1/3 of the actual cost of construction of improvements upon and with respect to the East Easement (AVG's share of such cost shall also be deemed to include 1/3 of the actual cost of City -required improvements to Snow Mesa Drive). Notwithstanding the foregoing, AVG's share of such actual costs for permanent improvements shall not exceed $150,000.00. Notwithstanding the foregoing, in the event that Executive Park benefits from any contribution by the City, in the form of paybacks, repays, cost reimbursements, cost participations or other financial benefits, AVG shall share in the benefit of such contributions in the same proportion in which it has borne the actual cost of the improvements for which such contribution is made. Declarants agree that an owner performing any construction of improvements contemplated by this Declaration shall have a temporary non-exclusive construction easement (the "Construction Easement") over and across those portions of the other owner's property which are adjacent to the Access Easement or the Temporary. Easement as are reasonably necessary to permit the owner perf6rmng the work to construct such improvements (the "Construction Easement Area"). The use of the Construction Easement Area by the owner constructing the driveway improvements and its use of the Construction Easement shall not materially interfere with the rights of the other owner relating to such other owner's use and development of its property, and the two owners hereby agree to cooperate in the scheduling and completion of such work to minimize any inconvenience such work may cause. Upon substantial completion of the driveway improvements, including, but not limited to, the approval of such construction by the City, if applicable, the owner performing such work shall restore those portions of the Construction Easement Area which are not part of the improved Access Easement or Temporary Easement to substantially the same condition they were in on the date the construction was started. This Construction Easement shall terminate automatically and shall be of no further force and effect upon the completion of the driveway improvements and the final restoration of the Construction Easement Area. (HFaM 10/16/06) 3 Neither the owner of the Executive Park Property nor the owner of the AVG Property shall at any time install, construct, maintain, operate or place any improvements or other obstructions upon any portion of the Access Easement or the Temporary Easement which would obstruct or interfere with the use of same by Declarants or their respective successors and assigns. 2. Notwithstanding any other terms or conditions of this Declaration to the contrary, the Temporary Easement shall become null and void and cease to exist, and to the extent necessary be deemed abandoned and vacated, upon the earlier of (i) completion of construction of improvements over and upon the "East Easement", or (ii) two (2) years from the date of this Declaration. While it is the intent of the parties that abandonment and vacation of the Temporary Easement shall be self -effectuating, each of the parties agrees to execute such further or additional documents as may be necessary to evidence the abandonment and vacation of the Temporary Easement. 3. The easements hereby created and conveyed shall be for the mutual benefit of Declarants, and their respective successors, legal representatives, assigns, employees, tenants, subtenants, licensees, guests, business invitees or any other person having an interest in the Executive Park Property or the AVG Property, respectively. 14." The owner of each property and each owner's respective successors and assigns, shall secure and maintain general public liability insurance, including insurance from claims against personal injury, death or property damage occurring in, or on or about the Access Easement or the Temporary Access of Easement, at the sole cost and expense of such owner. Each owner granted an easement herein ("Indemnifying Owner") shall indemnify, defend and hold the other owner and its officers, directors, members, managers, successors and assigns ("Protected Owner") harmless from and against any and all claims, suits, demands, actions, judgments, damages, liens, losses, costs and expenses, including, without limitation, reasonable attorneys' fees and court costs, suffered or incurred by the Protected Owner as a result of or in connection with the use, improvement or maintenance of the easements granted herein by the Indemnifying Owner and its contractors, agents, employees, servants, customers, guests, tenants, licensees or invitees, during the period of such Indemnifying Owner's ownership of its property (it being the intent of the parties that an Indemnifying Owner shall have liability under this indemnification only with respect to events occurring during such party's ownership of a property). The (HFLM 10/16/06) 4 foregoing indemnity shall not apply to the extent that any such claims, suits, demands, actions, judgments, liens, damages, losses, costs or expenses are the result of the negligence or intentional misconduct of the Protected Owner, its contractors, agents, employees, servants, customers, guests, tenants, licensees or invitees. 5. Until such time as certificates of occupancy have been issued with respect to the improvements located on both the Executive Park Property and the AVG Property, the owner of either such property shall have the right to install improvements for the purpose of use and enjoyment of the easements herein granted (as set forth in paragraph 1, above), and the installing owner shall have the duty and obligation, at its sole cost and expense, to repair and maintain all improvements constructed and installed within the Access Easement or Temporary Access Easement in such a manner as is reasonably necessary and appropriate for the proper use of vehicular and pedestrian ingress, egress and access within, over and across the Access Easement or Temporary Access Easement. Such repair and maintenance shall be completed in a commercially reasonable manner as determined by that owner from time to time. Such repair and maintenance shall include, but is not necessarily limited to, the following: general maintenance, repairs, replacements, resurfacing, repainting, repaving, restriping, cleaning,.. sweeping, snow removal, directional signs and other markers -and bumpers, and provision for personnel or independent contractors to implement the foregoing services. Following the issuance of certificates of occupancy with respect to improvements located on both the Executive Park Property and the AVG Property, the owner of the Executive Park Property shall thereafter repair and maintain the East Easement as set forth above, but shall be entitled to reimbursement from the owner of the AVG Property for 1/3 of the expenses for repairs, improvements and other capital expenses incurred in providing such services with respect to the East Easement (but excluding any obligation on the part of the owner of the AVG Property to reimburse any portion of the cost of routine day-to-day maintenance of the East Easement). Such repair and maintenance obligations, and the obligation to reimburse same, shall also include similar repair and maintenance of any and all improvements installed, used and/or maintained to provide access to or over Snow Mesa Drive (including, without limitation, cost of maintaining and repairing all City -required improvements to Snow Mesa Drive, to the extent not undertaken by the City). Such reimbursement shall be due within thirty (30) days after issuance of a notice of assessment of same from the owner of the Executive W&M 10/16/06) 5 5.) Scott Lawrence as Vice President and Controller, Kit Maxwell as Vice President and Controller, Darren Parmenter as Vice President and Controller and Mary French. as Vice President — Tax, with authority to open and close bank accounts, deposit and withdraw money, pay accounts, file tax returns and take such other actions as may be reasonable and necessary to effectuate any of the foregoing. 6.) Janine Tollett. Mark Schwenker and Dick Wells as Regional Vice Presidents - Community Operations with authority to conduct the business of ARC in accordance with the terms of the Agreement. 7.) Michael Meacham Todd Neel, Mike Powell, Benton Bo vd Kyle Williams. Michael Watson, Aaron Anderson, Craig Tucker, Gary Fleming Dave Fieel and Jimmie Eesleston as District Managers, with authority to take such actions on behalf of ARC as may be necessary with respect to the day to day operations of its owned properties. 8.) David Preiean, as Project Manager, with authority to engage contractors and approve contractor's bills with respect to projects associated with ARC properties. 9.) Tracey M. Finn as Vice President and Director of Human Resources, with authority to take such action as may be reasonable and necessary to conduct the business of ARC in accordance with the terms of the Agreement. 10.) Michele Peffiev and Dimitris Rentzios as Property Set -Up Specialists, with authority to open and close bank accounts on behalf of ARC. 11.) Chad Stafford and Brandon May as Vice Presidents, with authority to take such actions as may be reasonable and necessary to address the needs of ARC, and in accordance with the terms of the Agreement. Any action of any of the foregoing officers taken prior to the date of this Consent, and consistent with the authority granted hereunder and by the Agreement, is hereby ratified and affirmed. IN WITNESS WHEREOF, the Manager has executed this Consent effective as of the 17a` day of November, 2004. .n Manager L10paatiomI\AkC Communitia 2 LLC\2004\Consort Agents & OHicen 111604 Comm 2.doc Park Property to the owner of the AVG Property. If the owner of the AVG Property fails to pay any such assessment when due, the owner of the AVG Property shall be liable to the owner of the Executive Park Property for all unpaid assessments, plus interest accruing thereon at the rate of eighteen percent (18%) per annum until paid, together with costs of collection, including, without limitation, reasonable attorneys' fees incurred, and the owner of the Executive Park Property shall have all other remedies set forth in this Declaration for the collection of such expenses from the owner of the AVG Property. If the owner of the Executive Park Property shall fail to properly maintain the East Easement as hereinabove provided, the owner of the AVG Property shall have the right, but not the obligation, to maintain and repair the East Easement upon fifteen (15) days prior written notice to the owner of the Executive Park Property of its intention to do so. Thereupon, the owner of the AVG Property may expend such monies as may be required to properly maintain the East Easement, and the owner of the Executive Park Property shall, within thirty (30) days after receipt of notice from the owner of the AVG Property, reimburse the owner of the AVG Property for 2/3 of the total expenses incurred in connection with such activities. In the event of the failure of the owner of the Executive Park Property to pay any such assessment when due, the owner of .the Executive Park Property shall be liable to the owner of the AVG Property for all unpaid assessments, plus interest accruing, thereon at the rate of eighteen percent (18%) per annum until paid, together with costs of collection, including, without limitation, reasonable attorneys' fees incurred, and the owner of the AVG Property shall have all of the remedies set forth in this Declaration for the collection of such expenses from the owner of the Executive Park Property. Following the issuance of certificates of occupancy with respect to improvements located on both the Executive Park Property and the AVG Property, the owner of the AVG Property shall thereafter repair and maintain the West Easement as set forth above, at the sole cost and expense of the owner of the AVG Property. If the owner of the AVG Property shall fail to properly maintain the West Easement as hereinabove provided, the owner of the Executive Park Property shall have the right, but not the obligation, to maintain and repair the West Easement upon fifteen (15) days prior written notice to the owner of the AVG Property of its intention to do so. Thereupon, the owner of the Executive Park Property may expend such monies as may be required to (HF&M 10/16/06) 6 properly maintain the West Easement, and the owner of the AVG Property shall, within fifteen (15) days after receipt of notice from the owner of the Executive Park Property, reimburse the owner of the Executive Park Property for all of the expenses incurred in connection with such activities. In the event of the failure of the owner of the AVG Property to pay such expenses then, in such event, the owner of the Executive Park Property shall have all of the remedies set forth in this Declaration for the collection of such expenses from the owner of the AVG Property. 6. Without limiting the availability of any other remedy provided at law or in equity, or by this Declaration, in the event of failure of any party to pay any assessment hereunder when due, the owner of the other property shall be entitled to a lien against the property of the nonpaying owner to secure payment of such amount, which lien may be evidenced, at the non -defaulting owner's election, by notice of lien setting forth the amount due and rate of interest accruing thereon, which lien may be recorded in the real property records of Larimer County, Colorado, until such lien is paid and discharged, and which lien may be foreclosed in the same manner as a real estate mortgage under Colorado law. 7. Notwithstanding any other provisions herein to the contrary, the owner of each respective property shall be responsible for and shall hold the other owner harmless from any costs or damages to and expense for repair of the Access Easement or temporary Access Easement caused by extraordinary use thereof by such owner (including, without limitation, use of the Access Easement or Temporary Access Easement for ingress and egress for construction equipment or similar heavy use) and any damage to the driveway improvements caused by the negligence or willful acts of such owner, its guests or business invitees. 8. Each of the parties shall keep the Access Easement and the Temporary Access Easement free and clear of any prior liens or encumbrances, or any mechanics or materialmen liens, resulting from the activities of such party. Each of the owners of the Executive Park Property and the AVG Property agree to pay or cause to be paid directly to the appropriate taxing authorities, prior to delinquency, all real property taxes and assessments which are levied against their respective properties. 9. The easements hereby created and conveyed are non- exclusive and shall furthermore be subject to the rights of any pre-existing grants of easements appearing of record in the Larimer County, Colorado real estate records. Furthermore, in the event the City requires any easement in favor of the City to (HF&M 10/16/06) 7 confirm such access, or emergency access or similar right, the parties shall cooperate as reasonably necessary to grant such additional easements as may be required by the City, but this Declaration shall nevertheless remain in full force and effect as between Declarants, and their respective successors and assigns. 10. Notwithstanding any other provision of this Declaration, Executive Park shall have the right, at its sole election at any time and from time to time, to realign, reconfigure or relocate the course of the East Easement, provided only that it shall do so at its sole cost and expense, and further provided that such realignment, reconfiguration or relocation shall not unreasonably interfere with the use and enjoyment of the East Easement by AVG or its successors in interest as owners or users of the AVG Property. Notwithstanding any other provision of this Declaration, AVG shall have the right, at its sole election at any time and from time to time, to realign, reconfigure or relocate the course of the West Easement, provided only that it shall do so at its sole cost and expense, and further provided that such realignment, reconfiguration or relocation shall not unreasonably interfere with the use and enjoyment of the West Easement by Executive Park or its successors in interest as owners or users of the Executive Park Property. 11.° Subject to paragraphs 2 and 10, above, the various easements hereby created and conveyed may be amended, vacated, released, abandoned or terminated in whole or in part by instrument executed by the then owners of the Executive Park Property and the AVG Property, together with the holders of any first mortgages encumbering any portions of said properties. Any such instrument must be recorded in the Office of the Clerk and Recorder of Larimer County, Colorado, to be effective, valid and binding. 12. Any notice or other communication given by either party to the other relating to this Agreement shall be in writing, and shall be delivered in person, sent by certified mail, return receipt requested, or sent by reputable overnight courier, to such other party at the respective addresses set forth below (or at such other address as may be designated from time to time by written notice given in the manner provided herein). Such notice shall, if hand delivered or personally served, be effective immediately upon receipt. If sent by certified mail, return receipt requested, such notice shall be deemed given on the third business day following deposit in the United States mail, postage (HF&M 10/16/06) 8 prepaid and properly addressed; and if delivered by overnight courier, shall be deemed effective on the first business day following deposit with such courier: If to Executive Park, to: Harmony Executive Park LLC 114 North Mason Street, Suite 4 Fort Collins, Colorado 80524 If to AVG, to: AVG Harmony, LLC 9595 Wilshire Boulevard, Suite 710 Beverly Hills, California 90212 13. This Declaration shall be governed by and construed in accordance with the laws of the State of Colorado. 14. Nothing in this Declaration shall be construed to make the parties hereto partners or joint venturers or to render either of said parties liable for the debts or obligations of the other party. 15.- To the extent necessary to give effect to the terms hereof, and the declaration and dedication herein made, this Declaration shall constitute a covenant against the Executive Park Property and the AVG Property, and the Executive Park Property and the AVG Property shall hereafter be held, sold, conveyed, transferred, leased, subleased or occupied subject to the terms, conditions, covenants or limitations set forth herein, which shall run with said properties, and be binding upon all parties who have any right, title or interest in said properties, or any portion thereof. 16. The terms and provisions contained in this Declaration of Joint Access Easement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. (HFSM 10/16/06) 9 IN WITNESS WHEREOF, the parties hereto have executed this Declaration of Joint Access Easement as of the day and year first above written. HARMONY EXECUTIVE PARK LLC, a Colorado Limited Liability Company By: 6Campana, Manage AVG HARMONY, LLC, a Delaware Limited Liability Company By: " / e rance 1.1 Fa gma7 Jr., Agent for Owner STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) the foregoing instrument was acknowledged before me this oZ�JA day of I , 2006, by Gino Campana as Manager of HARMONY EXECUTIVE PARK LLC, a Colorado Limited Liability Company. WITNESS my hand and official seal. My commission expires: ,JQr1-1� x3 ,a-o t0 ��OTARl�•. V N>'•.A 010 y� •.,UBV�:Q�0 FOF COO (HF&M 10/16/06) Notary Cublic 10 STATE OF n@ rr ,. ) ) ss. COUNTY OFy,Jr,t ) The foregoing instrument was _q.� day of (Q)Ao, , 2006, Agent for Owner of AVG HARMONY LLC, Company. acknowledged before me this by Terrance L. Fangman, Jr. as a Delaware Limited Liability WITNESS my hand and official seal. My commission expires: oENgK mornrrr • smm oy N&asm JESSICA COOPER _ My Comm. Epp. Jan. 31, "M Notar ublic (HF&M 10/16/06) 11 RATIFICATION (Lender - Executive Park Property) The undersigned, having a security interest in or lien upon all or any part of the real property described on Exhibit "A" attached hereto and incorporated herein by reference, hereby approves, ratifies, confirms, and consents to the foregoing Declaration of Joint Access Easement. IN WITNESS WHEREOF, the undersigned has caused its name to be hereunto subscribed by its ✓r-e ChAJrm4.n this Q7m day of h)UTJyef , 2006. (-cn144 WP5r¢.rn tahJ a 4 PCF IAfiVA A 6A t1AJ d nnILA-Pl 6 Title: (/lGE L�if72MHTJ STATE OF COLORADO ) ^� ) ss. COUNTY OF :JenU� ) The foregoing instrument was acknowledged beforg me this ^�1 da of %£r 06,E by LVIIIrC)m ,( p5111 4�@f ` as h of �-LjJ&U—�� a s aA-..- WITNESS my hand and official seal. My commission expires: IINDA A. S US Notary Public ►yCamnUM W&M 10/16/06) 12 RATIFICATION (Lender - AVG Property) The undersigned, having a security interest in or lien upon all or any part of the real property described on Exhibit "B" attached hereto and incorporated herein by reference, hereby approves, ratifies, confirms, and consents to the foregoing Declaration of Joint Access Easement. IN WITNESS WHEREOF, the undersigned has caused its name to be hereunto subscribed by its {kVV .i- Vlp_ Prcaic t4,t this S-11 day of Stnk.,,,, p4Ar , 2006. • By: Tit e • AfrYtttuvt V)zc Rettidf STATE OF NEBRASKA ) ) ss. COUNTY OF Q8Aa6t4,y ) The foregoing instrument was acknowledged before me this WITNESS my hand and official seal. My commission expires: 1-8-09' rP, &gf-77 ,m. NotaryliDublic BENEML NOTARY -Slats of Nebraska GREG T. NELSON My Comm. Eq. Jury 8, 2008 W&M 08/22/06) 12 EXHIBIT "A" ATTACHED TO AND MADE A PART OF THE DECLARATION OF JOINT ACCESS EASEMENT BETWEEN HARMONY EXECUTIVE PARK LLC, A COLORADO LIMITED LIABILITY COMPANY ("EXECUTIVE PARK") AND AVG HARMONY, LLC, A DELAWARE LIMITED LIABILITY COMPANY ("AVG"). Legal Description of the Executive Park Property A parcel of land located in the East 1i of the Southwest 14 of Section 32, Township 7 North, Range 68 West of the 6u' Principal Meridian, City of Fort Collins, County of Larimer, State of Colorado, being more particularly described as follows: Considering the East line of the East 14 of the Southwest k of Section 32, Township 7 North, Range 68 West as bearing South 00°12'21" West with all bearing contained herein relative thereto. Commencing at the Northeast corner of the East ;I of the Southwest 14 of Section 32, Township 7 North, Range 68 West of the 6`° Principal Meridian, County of Larimer, State of Colorado; .Thence run South 00*12121" West along the East :line of the said East It for a distance of 2,652.87 feet to the Southeast corner of said East 1i; Thence leaving said East line run North 89027104" West along the South line of said East 'i for a distance of 661.67 feet to the Point of Beginning; Thence continue North 89027104" West along said South line for a distance of 662.89 feet to the Southwest corner of said East 14; Thence leaving said South line run North 00015146" East along the West line of said East 14 for a distance of 30.78 feet to the North right of way line of State Highway #68 (East Harmony Road); Thence leaving said North right of way line continue North 00°15146" East along said West line for a distance of 265.87 feet; Thence leaving said West line run North 89045116" East for a distance of 691.37 feet; Thence run South 00°59'33" West for a distance of 14.19 feet to the beginning of a curve concave to the East having a radius of 548.68 feet and a chord bearing of South 04048150" West; Thence run Southerly along the arc of said curve through a central angle of 7°38'34" for a distance of 73.19 feet to the end of said curve; Thence run South 09008100" West for a distance of 89.73 feet to the beginning of a curve concave to the East having a radius of 589.50 feet and a chord bearing of South 05°37'27" West; Thence run Southerly along the arc of said curve through a central angle of 7*01'06" for a distance of 72.21 feet to the end of said curve; Thence run South 02°06'54" West for a distance of 26.83 feet to the aforesaid North right of way line; Thence leaving said North right of way line continue South 02006154" West for a distance of 31.69 feet to the Point of Beginning. Together with a non-exclusive Limited Entry Easement appurtenant to the above -described property, as set forth in that certain Declaration and Reciprocal Easement Agreement dated November 15, 2004, by and between ARC Communities 2, LLC and Nominee Services, Inc. recorded December 27, 2004, at Reception No. 20040123056, County of Larimer, State of Colorado. LIMITED LIABILITY COMPANY AGREEMENT OF ARC Communities 2 LLC THIS LIMITED LIABILITY COMPANY AGREEMENT (the "Agreement") of ARC Communities 2 LLC (the "Company") dated as of this 24 day of April, 2002, by ARC MEZZ 2 LLC, as the sole member of the Company (the "Member"). RECITAL The Member has formed the Company as a limited liability company under the laws of the State of Delaware and desires to enter into a written agreement, in accordance with the provisions of the Delaware Limited Liability Company Act and any successor statute, as amended from time to time (the "Act"), governing the affairs of the,Company and the conduct of its business. ARTICLE 1 The Limited Liability Companv 1.1 Formation. The Member has previously formed the Company as a limited liability company pursuant to the provisions of the Act. A certificate of formation for the Company (the "Certificate of Formation") has been filed in the Office of the Secretary of State of the State of Delaware in conformity with the Act. The rights and liabilities of the Member shall be as provided under the Act, the Certificate of Formation, and this Agreement. 1.2 Name. The name of the Company shall be "ARC Communities 2 LLC" and its business shall be carried on in such name with such variations and changes as the Manager (as hereinafter defined) shall determine or deem necessary to comply with requirements of the jurisdictions in which the Company's operations are conducted, consistent with the terms of this Agreement. 1.3 Business Purpose; Powers. The Company is formed for the purpose of owning the Properties (as hereinafter defined) and to engage in any lawful business, purpose or activity for which limited liability companies may be formed under the Act. The Company shall possess and may exercise all the powers and privileges granted by the Act or by any other law or by this Agreement, together with any powers incidental thereto, so far as 1 368183.02-New York Server 3A -MSW EXHIBIT "B" ATTACHED TO AND MADE A PART OF THE DECLARATION OF JOINT ACCESS EASEMENT BETWEEN HARMONY EXECUTIVE PARK LLC, A COLORADO LIMITED LIABILITY COMPANY ("EXECUTIVE PARK") AND AVG HARMONY, LLC, A DELAWARE LIMITED LIABILITY COMPANY ("AVG"). Legal Description of the AVG Property Lots 1, 2, 3, 4, 5, 6, 7, 8 and 9, and Tract A, Harmony School Shops 4th Filing, in the City of Fort Collins, County of Larimer, State of Colorado. EXHIBIT "C" ATTACHED TO AND MADE A PART OF THE DECLARATION OF JOINT ACCESS EASEMENT BETWEEN HARMONY EXECUTIVE PARK LLC, A COLORADO LIMITED LIABILITY COMPANY (-EXECUTIVE PARK") AND AVG HARMONY, LLC, A DELAWARE LIMITED LIABILITY COMPANY ("AVG"). Legal Description of the Temporary Easement LEGAL DESCRIPTION ACCESS EASEMENT A PORTION OF THE SOUTHWEST ONE -QUARTER OF SECTION 32, TOWNSHIP 7 NORTH, RANGE 68 WEST OF THE 6th PM, CITY OF FORT COLLINS, COUNTY OF LARIMER, STATE OF COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARING; THE EAST LINE OF LOT 6, HARMONY SCHOOL SHOPS 4TM FILING, IS ASSUMED TO BEAR N00012'57"E. COMMENCE AT THE SOUTHEAST CORNER OF LOT 6, HARMONY SCHOOL SHOPS 4TM FILING; THENCE N 00-12'57"E, ON THE EAST LINE OF SAID LOT 6, A DISTANCE OF 2IOA4 FEET TO THE POINT OF BEGINNING; THENCE NOV12'57"E, ON THE EAST LINE OF LOT 4, HARMONY SCHOOL SHOPS 47" FILING, A DISTANCE OF 34.00 FEET; THENCE S89°2619"E, A DISTANCE OF 678.14 FEET, TO A POINT OF CURVATURE; THENCE ON THE ARC OF A TANGENT CURVE TO THE LEFT, SAID CURVE HAVING A DELTA OF 54°573 V AND A RADIUS OF 14.00 FEET, A DISTANCE OF 13.43 FEET, THE CHORD OF SAID CURVE BEARING N63°0438"E, WITH A LENGTH OF 12.92 FEET TO THE WEST RIGHT-OF-WAY LINE OF SNOW MESA DRIVE, ANDA POINT OF CURVATURE; THENCE ON SAID WEST RIGHT-OF-WAY LINE AND THE ARC OF A NON -TANGENT CURVE TO THE LEFT, CURVE HAVING A DELTA OF 405349" AND A RADIUS OF 348.68 FEET, A DISTANCE OF'46.89 FEET, THE CHORD OF SAID CURVE BEARING SO4°58'51 "W, WITH A LENGTH OF 46.88 FEET; THENCE N87°28'05"W, A DISTANCE OF 5.17 FEET TO A POINT OF CURVATURE, THENCE ON THE ARC OF A NON -TANGENT CURVE TO THE LEFT, CURVE HAVING A DELTA OF 96.3132" AND A RADIUS OF 5.93 FEET, A DISTANCE OF 9.99 FEET, THE CHORD OF SAID CURVE BEARING N4I'IV14"W, WITH A LENGTH OF 8.85 FEET, TO A POINT OF TANGENCY; THENCE N89"26'19"W, A DISTANCE OF 674.74 FEET TO THE POINT OF BEGINNING. CONTAINING AN OVERALL AREA OF 23,430 SQUARE FEET. L CHAD R. WASHBURN, A COLORADO LICENSED HEREBY STATE THAT THE ABOVE LEGAL DESCRI PREPARED UNDER MY RESPONSIBLE CHARGE/ INFORMATION, AND BELIEF, ARE CORRECT. CHAD R. WASHBURN, PROFESSIONAL LAND SURVE COLORADO PIS NO.37963 FOR AND ON THE BEHALF OF JR ENGINEERING LLC 2620 EAST PROSPECT ROAD, SUITE 190 FORT COLLINS, CO. 80525 LAND SURVEYOR, DO kCHED EXHIBIT WERE OF MY KNOWLEDGE, T7HS LEGAL DESCRIPTION DOES NOT CONSTITUTE A TITLE SEARCH BYJR ENGINEERING TO DETERMINE OWNERSHIP 3F THIS TRACTOR YERIFY EASEMENTS OF RECORD. JR ENGINEERING AND THE SURVEYOR OF RECORD ASSUMES NO SESPONSIBILITYFOR OWNERSHIP RIGHTS OR EXISTING EASEMENT RIGHTS AND RECOMMENDS CONSULTATION WITH lNATMRNEY 11 9NIV AUP SoMY i OhVS tA49 Vh' 1107 ar Molt z i b m F 2 dz a ib'OLZ SDNIW38 d0 S6Y8 ;,d1 " RIP SWAT VOWS .4AV YYM' 9107 z tn $ s V w g. <_ to w 0 M'VS (HF&M 10/16/06) 18 EXHIBIT "D" ATTACHED TO AND MADE A PART OF THE DECLARATION OF JOINT ACCESS EASEMENT BETWEEN HARMONY EXECUTIVE PARK LLC, A COLORADO LIMITED LIABILITY COMPANY ("EXECUTIVE PARK") AND AVG HARMONY, LLC, A DELAWARE LIMITED LIABILITY COMPANY ("AVG"). Legal Description of the West Easement LINE TABLE LINE I BEARING LENGTH LI s60'09'G7'W 7.42 L2 S87'36'42'W 9.72 L3 N89'26'19'W 7.30 L4 NB928'19'W 18.06 L5 NO(nW28'E 1.45 L6 S89'31'50'W 17.94 L7 N60'09'01'E 7.42 CURVE TABLE CURVE DELTA RADIUS LENGTH CHORD BEARING C1 302440' 30.00 15.92 15.74 S7521'21'W C2 27'OSOB' 70.00 3105 32.74 573'4O'35'W C3 55ZS29' 25.00 24.24 23.30 S62'46'57'W C4 23'02'54' 218.00 87.69 87.10 N11'44'18'E C5 8'46'29' 447.71 6&56 68.50 N31'38'31'E co 2710YOB' 50.00 23.61 23.39 N73'40'35'E C7 302440' 50.00 26.54 26.23 - N7521'21'E PUBLIC AND EMERGENCY '. ACCESS EASEMENT D(HIBIT - JOB NO. 39347.00 IOTICE: SHT 16 EE0E 2 _7`,MNO TO COLORADO I" YD.. MUST CCMMEVCE AYY LEGAL ACTION ;W70 LrON ANY DEFECT LY M'S SLRVTY VAP44 THREE WARS t TEi YW F.RST DISCOVER SUCH DEFECT. IN NO EVENT. MAY ANY ACIION BASl:) U"GI ANY DEFEC" IN 1fR SUH�tY BE COMMENCED MORE J'R ENCMBF.NI YT Iav TA YEARS AFTER -11CFM DATE CrCF T-f CERTATON ;NK HOHEREON •rre... �wwrreB.taM+rram rr LEGAL DESCRIPTION ACCESS EASEMENT A TRACT OF LAND IN PORTIONS OF LOTS 4 THROUGH 8, HARMONY SCHOOL SHOPS 4n' FILING, LOCATED IN THE SOITIIiWEST ONE -QUARTER OF SECTION 32, TOWNSHIP 7 NORTH, RANGE 68 WEST OF THE 67H PM, CITY OF FORT COLLINS, COUNTY OF LARIMER, STATE OF COLORADO, MORE PARTICULARLY DESCRIBED AS FOLLOWS: BASIS OF BEARING: THE EASTERLY BOUNDARY OF HARMONY SCHOOL SHOPS 4TH FIIJNG, IS ASSUMED TO BEAR N00"12'57-L COMMENCING AT THE SOUTHEAST CORNER OF SAID HARMONY SCHOOL SHOPS 4T"FII.IIVG, THENCE NOV 12'57"E, ON SAID EASTERLY LINE, A DISTANCE OF 223.44 FEET TO THE POINT OF BEGIIVNING; THENCE N89026'19"W, A DISTANCE OF 166.75 FEET, TO A POINT OF CURVATURE; THENCE ON THE ARC OF A TANGENT CURVE TO THE LEFT, SAID CURVE HAVING A DELTA OF 30024'40" AND A RADIUS OF 30.00 FEET, AN ARC LENGTH OF 15.92 FEET, THE CHORD OF SAID CURVE BEARING S75"2121 "W, WITH A DISTANCE OF 15.74 FEET, TO A POINT OF TANGENCY; THENCE MV09'01"W, A DISTANCE OF 7.42 FEET, TO A POINT OF CURVATURE, THENCE ON THE ARC OF A TANGENT CURVE TO THE RIGHT, SAID CURVE HAVING A DELTA OF 27"03'N" AND A RADIUS OF 70.00 FEET, AN ARC LENGTH OF 33.05 FEET, THE CHORD OF SAID CURVE BEARING S73"40'35"W, WITH A DISTANCE OF 32.74 FEET, TO A POINT OF TANGENCY; THENCE 987012", A DISTANCE OF 87.13 FEET; THENCE N89026419"W, A DISTANCE OF 97.10 FEET; THENCE S8703642"W, A DISTANCE OF 9.72 FEET; THENCE N89"26'19"W, A DISTANCE OF 7.30 FEET; TO A POINT OF CURVATURE; THENCE ON THE ARC OF A TANGENT CURVE TO THE LEFT, SAID CURVE HAVING A DELTA OF 55033'29" AND A RADIUS OF 25.00 FEET, AN ARC LENGTH OF 24.24 FEET, THE CHORD OF SAID CURVE BEARING S62"46'57"W, WITH A DISTANCE OF 23.30 FEET, TO A POINT OF COMPOUND CURVATURE; THENCE ON THE ARC OF A TANGENT COMPOUND CURVE TO THE LEFT, SAID CURVE HAVING A DELTA OF 34047'22" AND A RADIUS OF 182.00 FEET, AN ARC LENG* OF 110.51 FEET, THE CHORD OF SAID CURVE BEARING S17°36'32"W, WITH A DISTANCE OF 108.92 FEET, TO A POINT OF TANGENCY; THENCE S00"12�1 "W, A DISTANCE OF 85.54 FEET TO THE NORTH RIGHT-OF- WAY OF HARMONY ROAD; THENCE ON SAID NORTHERLY RIGHT-OF-WAY THE FOLLOWING THREE (3) COURSES: (HP&M 10/16/06) 20 1) THENCE N89026' 19"W, A DISTANCE OF 18.06 FEET; 2) THENCE N000162M A DISTANCE OF 1.45 FEET; 3) THENCE S89031'50"W, A DISTANCE OF 17.94 FEET; THENCE N00012'51'E, A DISTANCE OF 84.19 FEET, TO A POINT OF CURVATURE; THENCE ON THE ARC OF A TANGENT CURVE TO THE RIGHT, SAID CURVE HAVING A DELTA OF 23002'54" AMID A RADIUS OF 218.00 FEET, AN ARC LENGTH OF 87.6.9 FEET, THE CHORD OF SAID CURVE BEARING N11°44'18"E, WITH A DISTANCE OF 87.10 FEET TO A POINT OF COMPOUND CURVATURE; THENCE ON THE ARC OF A NON -TANGENT CURVE TO THE RIGHT, SAID CURVE HAVING A DELTA OF 08"4629" AND A RADIUS OF 447.71 FEET, AN ARC LENGTH OF 68.56 FEET, THE CHORD OF SAID CURVE BEARING N31°38'31 "E, WITH A DISTANCE OF 68.50 FEET TO A POINT OF NON - TANGENCY; THENCE S82018' 15"E, A DISTANCE OF 68.44 FEET; THENCE S89026'.I M A DISTANCE OF 81.88 FEET; THENCE N87°12'09"E, A DISTANCE OF 86.54 FEET, TO A POINT OF CURVATURE; THENCE ON THE ARC OF A TANGENT CURVE TO THE LEFT, SAID CURVE HAVING A DELTA OF 27003'08" AND A RADIUS OF 50.00 FEET, AN ARC LENGTH OF 23.61 FEET, THE CHORD OF SAID CURVE BEARING N73°40'35"E, WITH A DISTANCE OF 23.39 FEET, TO A POINT OF TANGENCY; THENCE N600MI"E, A DISTANCE OF 7.42 FEET, TO A POINT OF CURVATURE; THENCE ON THE ARC OF A TANGENT CURVE TO THE RIGHT, SAID CURVE HAVING A DELTA OF 30-2N40" AND A RADIUS OF 50.00 FEET, AN ARC LENGTH OF 26.54 FEET, THE CHORD OF SAID CURVE BEARING N75.2121 "E, WIPH A DISTANCE OF 26.23 FEET, TO A POINT OF TANGENCY; THENCE S89°26'19"E, A DISTANCE OF 166.63 FEET, TO A POINT ON THE FAMM Y LINE OF SAID HARMONY SCHOOL SHOPS 4TH FILING; THENCE S0001257"W, ON SAID EASTERLY LIKE, A DISTANCE OF 20.00 FEET, TO THE POINT OF BEMNING, CONTAINING AN OVERALL CALCULATED AREA OF 17,265 SQUARE FEET. (HF&M 10/16/06) 21 I, CHAD R. WASHBURN, A LICENSED PROFESSIONAL LAND SURVEYOR IN THE STATE OF COLORADO, DO HEREBY STATE THAT THE ABOVE LEGAL DESCRIP17ON AND ATTACHED: EXHIBIT WERE PREPARED UNDER MY RESPONSIBLE CHARGE AND ON THE BASIS OF MY KNOWLEDGE, INFORMATION, AND BELIEF, ARE CORRECT_ COLORADO PIS NO.37963 FOR AND ON THE BEHALF OF JR ENGMERING LLC 2620 EAST PROSPECT ROAD, SUITE 190 FORT COLLINS, CO. 80525 h, %i[ I R.r r' v I ♦ r, I wI. \ r'At} / l y- r / I. Ir I /l' AV' • \V/: I • • .Y wv //' Y, I. 1I.\ / - l} Il wI. ! /} //\ II. \v I /. I. (HF&M 10/16/06) 22 r f O (HF&M a 0 z z Ou m O mw W�N W d N < �Wn9e�d N a N N N O UaDN / << W_*m mc>pm (/a In IL SR _ .i►'fZZ 3.L9,ZLOON n O J ALW 3.19.ZLOON W K W YW W K � U = W m N 7K N Z W W U WO O Z r a0 ZM OZ Z� c `m m 2 PUSO <rx Z J < Z } O J 2 y < Z O iF: ZW � ZZF :xZW O — U (F1�2 F- z W O O O} U < O < W J � _ O Y < U W _N J � < V K O' O O z U � a m EXHIBIT "E" ATTACHED TO AND MADE A PART OF THE DECLARATION OF JOINT ACCESS EASEMENT BETWEEN HARMONY EXECUTIVE PARK LLC, A COLORADO LIMITED LIABILITY COMPANY ("EXECUTIVE PARK") AND AVG HARMONY, LLC, A DELAWARE LIMITED LIABILITY COMPANY ("AVG"). Legal Description of the East Easement W&M 10/16/06) 24 l.EUAL ID CocaRJT'rll N ACCESS YASEbum A I'(XVFlON OF'r1lli m0lfTTTWT.9T ONE -QUARTER OF SECTION 32, TOVJNSHW 7 NCWtM 3iANOB 68 WES*l' Cll *IIJL' &us PM, C[TY Or. FART [Y)T,T TNS, COWn% T'Y OF LARIMER, STATE OF COLORAD0, ILORE PARTICL: LARLY DEQCVmr. D 4.S rOL.1-01% S_ BASS 07 RX ARiNG: THE EAST UWE OF TJARMONY 5VT TOOT, SHAPE 4m FTT.WO, 1S A.SSUk4ED TO SEAR V00"1237"H. CC)htNgKNCE AT THF. Scnm-TF.ACT' cX)RNF.R OF U3T 6. HARA.IOVY SCHOOL s iLx>5 4— N1LINu-, 1HENCII N 00-12-57-1d.. OJT 'l%lE JL%ST 1_.INO OF SAID HAXtAAONY SCHOOL SHOPS 4Tn FILSNG. A DISTANCE OF 2L&40 FEET TO THE V0I.TP OF 1BE4G1NNJU%ti; Tl llUq[:1 S NOD-] 3'57'Tr, ON 9 AM EAST LME. A DISTANCE OF 24.00 FEET; THENCE N89"45116^L', A ULS'1'ANCE OF 9_17 rrrT; THENCE NWS6146" E. A DISTANCE OY 141.76 FLhX.— rRT4%'.r. N89045116^E. A D[STANC:E OF 142.30 FEET; 'll IENCS N89'4931 ^r--., A DT9TANC r OF 142.50 FEET; THENC h N89"45.16"E, A llLSTANCE OF 118.25 Fr_r•.T; THENCE S98057152118, A DISTANCE ON 89.41 YbL''J'; THENCE-SW54S3"E, A DISTANCE OF 76.08 PEET, TO A PANT OF CTJRVAT[:Rn ANTI Tl IT% WrSTIUCIFlT-Or-WAY OF SNOW NJESA DRIVE; TITE24CE ON T11E ARC OVA MOW TANGT?J%Z' CURVE TO THE LEFT, SA.KD CLkLN'E HAVD40 A DELTA OF V W52" AND A RATM . R OF S42.4;8 FFFT, A D)STA_TCE Of 31.05 Fkel'. LHE CHORD OF SAW CURVE HEART'NG 90,V44'20-W, WrrH A LENQTH:OF 51.03 FRJ-T, TO A POWT OF VOK TANOANC: Y: THENCE 1 64 56'47"W, A DISTANCE OF 42.84 FEET. TO A POINT OF CURVA I'ULUt; 1'Hl;.NCl:: UV 1'ilH 1lILC UJ' A TAWCX3%T CURVE TO TJ•7E LF.Fr, SAID CURVE HAVLNO A DELTA OF 13°280B" ANJ) A lAADJVS OF 100.00 [;T[:T, A OURTA-407.OF 27.00 FEET THE CHORD OF SAID CURVE BEARL-40 N72'•40'S2- W, W717 J A Ll•:Vti7T [ J)r 2& 72 FT-r%T, TO A PDT. -T Or NON TANGENCY; I HENCE N86^3W2W W, A DISTANCE OF 65.24 FEET; THENCE 88" 5'01- W. A DJSi1:11NC'L OF 97_75 FTT:T; lrMT dCE S39045116"R . A DL'STAN4.'39 O 36-M FEIHl': 7111•NCE SII9"45.1 W W. A DLSTANC.R OT 251.7S FEET; THENCE S*V25-13"W, A J)i$1'ANC H OF 97.52 FCD3T4 THT.NCR S8880MVXV. ADISTANCE OF 51.31 FERl': rUL-4CE %89^45'76"W, A F)MYANC:F. OF 21.05 FEET; CONTAT41NG AN OVERALL AREA OF 17,368 SQ17.4RE 7T:TT- (HFSM 10/16/06) 25 such powers and privileges are necessary or convenient to the conduct, promotion or attainment of the business purposes or activities of the Company. Notwithstanding the foregoing, the Company is a single purpose bankruptcy -remote entity whose sole purpose shall be to own and operate manufactured home communities which are financed under that certain credit facility with Morgan Stanley Dean Witter Mortgage Capital Inc., a New York corporation as Lender ("Lender") (the "Morgan Stanley Facility"), or are otherwise permitted to be owned by the Company under the terms of that certain Loan Agreement dated May 2, 2002, between Lender and the Company (the "Loan Agreement") (all such manufactured home communities being hereinafter referred to as the "Properties"). The Company shall at all times fully comply with all of the terms, conditions and agreements contained in the Loan Documents (as that term is defined in the Loan Agreement). (a) Specific Authorization. The Company, and any Manager, Member or any officer on behalf of the Company may enter into and perform the Loan Agreement, dated May 2, 2002, among the Company and the Lender, as amended from time to time by agreement of the parties, the Note, the Property and Asset Management Agreement, the Assignment of Management Agreement and Subordination of Management Fees, the Hazardous Material Guaranty and Indemnification Agreement, the Cash Management Agreement, the Fee and Cooperation Agreement, the Interest Rate Cap Agreement, any Letter Agreements by the Company, the Consent of Manager and Subordination Agreement and all documents, agreements, certificates, or financing statements contemplated thereby or related thereto all without any further act, vote or approval of any Member, Manager or other Person notwithstanding any other provision of this Agreement, the Act, or applicable law, rule or regulation. The foregoing authorization shall not be deemed a restriction on the powers of the Member or the Manager to enter into other agreements on behalf of the Company as may be expressly permitted herein. 1.4 Registered Office and A ent. The location of the registered office of the Company in the State of Delaware shall be c/o Corporation Service Company, 2711 Centerville Road, Wilmington, Delaware 19808. The Company's Registered Agent at such address shall be Corporation Service Company. 1.5 Term. Subject to the provisions of Article VIII below, the Company shall have perpetual existence. The existence of the Company as a separate legal entity shall continue until cancellation of the Certificate of Formation as provided in the Act. 2 368183.02-New York Servo 3A - MSW T. CC(AD IL hAWMUPIL A COLOAADD STATE THAT 7W.. ABOVE. IF.CTAI. TIESCI U' Y F"MONMEL.Y CHAMA AHD ON 'M AREMRRECT. A COLORAD0FL5N0.Y?9W -Ufta®O FOR AND OK71W ATMAT FOF YX MCHNTMTKG LLC 2020EAST PROSPECT ROAD. SUITE 190 FARTCOTX.INS, CO. W325 W-VZ RIM)VAI. I AKO !AMW..Vt^ IJCT Nr.Krnr ATTAOTED EXHIBIT WERE PRFPARFD LTSDEA kX XNI)WI.MWW Fh FTJKVAY LCJF, ASU BTiTAF.F. TIUS LhU-%L DkSUUI'IION DOi:S N(YI' CUNSTITVTZ A TTTLE SEARCH BY JR ENCYINEERWO'IUDEIER)ANEOWNERSHIPOFTHISTRACT ORVERIFY EASEhnEJ iM OF RECORD. JR EKGDMERIKG AKD THE SURVEYOR OF RECORD ASSU'VMS NTO "SPOVSIBILIT'Y FOR Cyp•NERSFP RIGHTS(.IRTDCFSTTN(i PASI"ML I'Rici[TJSAVD RRCOMMT O9 CONSM.TATION W'[TII AN ATTORNEY (HF&M 10/16/06) 26 K'.Yp�tdM�]�M�/L9��W1Aw.6bITC[N.�,�.1M sae awicaaP wl v�n �cwrsaHax 9,rrs sn[ /L,ea�o�,r, �n7os' ♦Ar /twc ( _ ems OF rrOwres rwmrs� me.�o' t — 9 a n � ( p Z x o $ 4 o ho 3 (HF&M 10/16/06) 27 PRIVATE DEVELOPMENT AGREEMENT THIS PRIVATE DEVELOPMENT AGREEMENT (this "Agreement") is made and entered into this 171�' day of JAttwj 7 , 200.8 ? by and between HARMONY EXECUTIVE PARK, LLC, a Colorado Limited Liability Company, the mailing address of which, for purposes of this Agreement is 144 North Mason Street, Suite 4, Fort Collins, Colorado 80524 ("Executive Park") and FRONT RANGE RETAIL COMPANY, L.L.C., a Delaware Limited Liability Company, the mailing address of which, for purposes of this Agreement is 2222 Arlington Avenue, Birmingham, Alabama 35205 ("FRRC"). RECITALS A. Executive Park is the owner of that certain parcel of real property (hereinafter referred to as the "Executive Park Property") situate in the City of Fort Collins, County of Larimer, State of Colorado, legally described as set forth on Exhibit "A" attached hereto and incorporated herein by this reference. Br FRRC is the owner of that certain parcel of real property (hereinafter referred to as the "FRRC Property") situate in the City of Fort Collins, County of Larimer, State of Colorado, legally described as set forth on Exhibit "B" attached hereto and incorporated herein by this reference. C. Executive Park and FRRC contemplate the development of their respective properties, and have entered into various agreements and undertakings with respect to such development, and in order to provide for the installation and construction of certain infrastructure and related improvements in connection with such development, and the establishment of certain easements in connection with such development. D. The parties hereto desire to set forth and define the terms and conditions for payment and discharge of their respective agreements and obligations with respect to the installation and construction of certain infrastructure, and granting the easements in connection with the development of their respective properties. 1 AGREEMENT NOW, THEREFORE, in consideration of the promises herein contained, the mutual benefits to be derived therefrom, and other good and valuable consideration, the receipt and adequacy of which are hereby confessed and acknowledged, the parties hereto agree as follows: 1. Access Easements. The parties hereto agree to create and dedicate certain joint access easements for pedestrian and vehicular access over and across their respective properties on the terms and conditions set forth in the form of Declaration of Joint Access Easement attached hereto as Exhibit "C" and incorporated herein by this reference. 2. Storm Drainage Detention and Discharge. The parties hereto acknowledge that FRRC intends to design, construct and install a storm drainage pipeline running from south to north along the westerly portion of the FRRC Property, discharging into a detention facility located behind the proposed Lowe,s store site on the FRRC Property (generally referred to by the parties as the "Western Storm Line"). FRRC hereby grants to Executive Park, after or during construction of the Western Storm Line, the right and privilege to enter upon the FRRC Property to connect to the Western Storm Lipe,:,'or to construct a separate storm drainage pipeline parallel to the Western Storm Line, and in either case, the right to discharge storm drainage from the Executive Park Property into the detention facility located on the FRRC Property. The owner of the Executive Park Property shall be responsible for all costs of design and engineering of the improvements and system necessary to convey and discharge storm water from the Executive Park Property (provided that Executive Park shall not be required to reimburse FRRC for any costs incurred by FRRC in the design and engineering of the Western Storm Line and the detention facility). In the event that Executive Park elects to connect to the Western Storm Line, Executive Park shall, as a condition to connecting, reimburse FRRC for one hundred percent (100%) of the incremental charge properly allocated to the Executive Park Property for oversizing the pipeline to accommodate the storm drainage from the Executive Park Property. In the event that Executive Park elects to construct its own parallel pipeline, Executive Park will bear one hundred percent (100%) of the cost and expense of doing so. 2 Any connection or other construction activities undertaken by Executive Park on the FRRC Property shall be accomplished in a good and workmanlike manner, and Executive Park shall exercise diligent and commercial reasonable efforts to conduct all such activities in a manner so as not to interfere with the construction activities by FRRC on the FRRC Property, or with improvements theretofore constructed on the FRRC Property. All such construction activities by Executive Park on the FRRC Property shall be completed prior to the time on which the shopping center to be located on the FRRC Property is open and operating. FRRC agrees to keep Executive Park advised of the progress of FRRC's construction activities in order to facilitate appropriate coordination of Executive Park's construction on the FRRC Property. Executive Park shall indemnify and hold FRRC harmless from and against any loss, damage, cost, obligation, liability or other claim arising out of or in connection with construction activities conducted by Executive Park on the FRRC Property pursuant to this Agreement. In any event, FRRC shall grant, dedicate and convey to Executive Park such easement or easements as may be reasonably required to accommodate the storm drainage improvements constructed or used by Executive Park, and to permit discharge of, storm drainage from the Executive Park Property on or through such storm drainage facilities (including, without limitation, the detention pond located on the FRRC Property). Any design and engineering prepared by or for Executive Park in accordance with the foregoing storm drainage improvements shall be subject to review and approval by FRRC, provided that such review and approval shall not be unreasonably withheld or delayed, and provided that such approval shall be given provided only that Executive Park's improvements will not materially interfere with FRRC's ability to convey and detain storm water drainage from the FRRC Property. 3. Joint Construction. The parties agree to cooperate in the joint construction of infrastructure and improvements contemplated by this Agreement to the extent reasonably feasible, with a view towards maximizing the efficient and economical completion of such infrastructure and improvements in a timely and orderly manner. Notwithstanding any such joint efforts, each of the parties hereto shall retain all authority granted in this Agreement with respect to making final decisions 3 affecting each party's respective property. The parties agree to reasonably cooperate with respect to scheduling and sequencing of construction activities with respect to the infrastructure and improvements which are the subject matter of this Agreement with a view towards maximizing the efficient and economical completion of such infrastructure and improvements in a timely and orderly manner, as well as to accommodate any scheduling or sequencing of construction required by the City of Fort Collins. Without limiting the foregoing, any construction activities undertaken by Executive Park on the FRRC Property shall be accomplished in a good and workmanlike manner, and Executive Park shall exercise diligent and commercial reasonable efforts to conduct all such activities in a manner so as not to interfere with the construction activities by FRRC on the FRRC Property, or with improvements theretofore constructed on the FRRC Property. All such construction activities by Executive Park on the FRRC Property shall be completed prior to the time on which the shopping center to be located on the FRRC Property is open and operating. FRRC agrees to keep Executive Park advised of the progress of FRRC's construction activities in order to facilitate appropriate coordination of Executive Park's construction on the FRRC Property. g. Temporary Construction Easements. Each of the parties hereto agrees to deliver to the other party or the agents and contractors of the other party, such temporary grants or dedications of rights -of -way or access (including, without limitation, any required emergency access) as may be reasonably necessary for the purpose of designing, engineering and constructing the improvements contemplated by this Agreement. 5. Warranty Issues. The parties acknowledge that Development Agreements entered into with the City may contain certain warranties with respect to some or all of the improvements contemplated by this Agreement. All warranty obligations pertaining to any such improvements shall be in accordance with the respective Development Agreements of the parties. In other words, Executive Park shall be responsible for any and all warranties and warranty issues arising out of its Development Agreement with the City with respect to the Executive Park Property, and FRRC will be responsible for any and all warranties and warranty issues arising out of its Development Agreement with the City with respect to the FRRC Property. 4 6. Remedies. Each and every term of this Agreement shall be deemed to be a material element hereof. In the event that either party fails to perform according to the terms of this Agreement, such party may be declared in default by written notice from the non -defaulting party to the defaulting party specifying the nature of such default and allowing a period of five (5) days from receipt of such notice within which to cure such default. In the event such default remains uncorrected, the party declaring the default may elect to terminate this Agreement and seek damages, treat the Agreement as continuing and require specific performance and/or damages, or avail itself of any other remedy at law or in equity. In the event of any default hereunder by either party which shall require the party not in default to commence legal or equitable action against said defaulting party, the defaulting party shall also be liable to the non -defaulting party for all reasonable attorneys, fees and costs incurred by the non - defaulting party by reason of such default. 7. Severability. If any provision of this Agreement shall be held unlawful, void or for any reason unenforceable, such provision shall be deemed separate from, and shall in no way effect the validity or enforceability of, the remaining provisions of this Agreement. 8. Non -Waiver. The failure to enforce any provision of this Agreement at any time shall not constitute a waiver of the right thereafter to enforce such provision or any other provision hereof. 9. Notice. Any notice or other communication given by either party to the other relating to this Agreement shall be personally delivered or sent by certified mail, return receipt requested, addressed to such other party at the respective addresses set forth below (or such other address as may be designated from time to time by notice given pursuant to this paragraph 7); and if mailed, such notice or other communication shall be deemed given two (2) business days after being placed in the United States mail: If to Executive Park, to: Harmony Executive Park LLC 114 North Mason Street, Suite 4 Fort Collins, Colorado 80524 5 If to FRRC, to: Front Range Retail Company, L.L.C. c/o Bayer Properties, L.L.C. 2222 Arlington Avenue Birmingham, Alabama 35205 10. Time is of the Essence. The parties agree that time is of the essence with respect to this Agreement. However, any delays in, or failure of, performance by any party of its obligations under this Agreement shall be excused if and to the extent that such delays or failure or result of acts of God, fires, flood, strikes, labor disputes, accidents, regulations or orders of civil or military authorities, acts of war or terrorism, shortages of labor or materials, other causes, whether similar or dissimilar, which are beyond the control of such party. 11. No Third Party Beneficiary. This Agreement shall not be construed as creating any rights for the benefit of any other parties, including, without limitation, the City of Fort Collins. 12. Headings. Paragraph headings used herein are for convenience of reference and shall in no way define, limit or prescribe the scope or intent of any provision of this Agreement. 13. Entire Agreement. This Agreement sets forth the entire understanding of the parties with respect to the subject matter hereof and may not be changed except by written document signed by both parties hereto. There should be deemed to be no other terms, conditions, promises, understandings, statements or representations, express or implied, concerning this Agreement unless set forth in writing and signed by both parties hereto. 14. Assignment. Except for an assignment to an affiliate thereof or to a lender for security purposes, no party hereto shall have the right to assign this Agreement of any of its rights or obligations hereunder to any persons, corporations or other entity without the written approval of the other party, which approval shall not be unreasonably withheld or delayed. For purposes of this Agreement, an "affiliate" shall be defined as any corporation, limited liability company or partnership in which a party either holds a fifty percent (SOU equity interest or to which a party is otherwise contractually obligated for the 0 development of the Executive Park Property or the FRRC Property, respectively, and the performance of all obligations under this Agreement. In the event either party assigns this Agreement in accordance with this paragraph, the assigning party shall remain fully liable under this Agreement, unless otherwise agreed in writing by the non -assigning party hereto. 15. _Binding Effect. This Agreement and the covenants contained herein shall run with the respective properties and shall be binding upon the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF, the parties hereto have executed this Private Development Agreement as of the day and year first above written. HARMONY EXECUTIVE PARK LLC, a Colorado Limited Liability Company By: Zino mpana, tanager, FRONT RANGE RETAIL COMPANY, L.L.C., a Delaware Limited Liability Company By: DAM L.siwVzsrau A"W4za oAf*gT- STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) AThe foregoing instrument was acknowledged before me this a a n9Tday of November, 2006, by Gino Campana as Manager of HARMONY EXECUTIVE PARK LLC, a Colorado Limited Liability Company. WITNESS my hand and official seal. My commission expires: 1-1� a311Z010 P QTAt ? *L C s< Notary lic • 0.0 STATE OF ALABAMA ) ss. COUNTY OF J0Ftxfc5op,1 ) The foregoing instrument was acknowledged before me this I?TM day of ToNuA(" 200;, by L14VIpL•SIW Iv as &4TRO(meo ASCN r I of FRONT RANGE RETAIL COMPANY, L.L.C. , a Delaware Limited Liability Company. WITNESS my hand and official seal. P10TAAY PUBLIC STATI O7 ALIUAIIA AY I.A14I My commission expires: MYcomMIS5IONBXPINSlI � "01 KW4=THRU NOTAIT 191e4jC UNOCI1yylVy . L-�- / Notary u . 1.6 Representations by Member. The Member hereby represents, warrants and agrees that (i) all transactions contemplated by this Agreement to be performed by it have been duly authorized by all necessary action of its officers, directors, shareholders, partners, or members, if required, (ii) the consummation of such transactions will not to the best of its knowledge result in a breach or violation of, or a default under, its organizational documents or any other agreement by which it or any of its properties is bound or any statute, regulation, order or other law to which it is subject, (iii) this Agreement is a binding and enforceable agreement on the part of such party in accordance with its terms, (iv) that such Member, if owed any money or other obligation by the Company, will take no action to seek an involuntary bankruptcy receiver or liquidation of the Company; and (v) said Member shall not take any other action which could reasonably be expected to lead to consolidation of the assets of the Company in any bankruptcy or reorganization of the Member, or affiliate of the Member. 2.1 as follows: Name ARC MEZZ 2 LLC ARTICLE 2 The Member The Member. The name and address of the Member is such place as the Member Member was admitted to t upon its execution of a Agreement. Address 600 Grant Street, Suite 900 Denver, Colorado 80203 shall from time to time designate. The he Company as a member of the Company counterpart signature page to this 2.2 Actions by the Member; Meetings. The Member may approve a matter or take any action at a meeting or without a meeting by the written consent of the Member. Meetings of the Member may be called at any time by the Member. 2.3 Liability of the Member. All debts, obligations and liabilities of the Company, whether arising in contract, tort or otherwise, shall be solely the debts, obligations and liabilities of the Company, and the Member shall not be obligated personally for any such debt, obligation or liability of the Company solely by reason of being a member. 2.4 Power to Bind the Company. Subject to the terms of this Agreement, the Member (acting in its capacity as such) 3 368183.02-New York Server 3A- MSW EXHIBIT "A" ATTACHED TO AND MADE A PART OF THE PRIVATE DEVELOPMENT AGREEMENT BETWEEN HARMONY EXECUTIVE PARK LLC, A COLORADO LIMITED LIABILITY COMPANY ("EXECUTIVE PARK") AND FRONT RANGE RETAIL COMPANY, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY ("FRRC"). Legal Description of the Executive Park Property A parcel of land located in the East 1/2 of the Southwest 1/4 of Section 32, Township 7 North, Range 68 West of the 6th Principal Meridian, City of Fort Collins, County of Larimer, State of Colorado, being more particularly described as follow: Considering the East line of the East 1/2 of the Southwest 1/4 of Section 32, Township 7 North, Range 68 West as bearing S 00012121/, W with all bearings contained herein relative thereto. COMMENCING at the Northeast corner of the East 1/2 of the Southwest 1/4 of Section 32, Township 7 North, Range 68 West, of the 6th Principal Meridian, County of Latimer, State of Colorado; thence run S 00012121/, W along the East line of the said East 1/2 for a distance of 2353.03 feet to the POINT OF BEGINNING; thence continue S 00012'21" W along said East line for a distance of 270.05 feet to the North right of way line of State Highway #68 (East Harmony Road); thence leaving said North right of way line continue S 0002121" W along said East line for a distance of 29.79 feet to the Southeast corner of said East 1/2; thence leaving said East line run N 89027104" W along the South line of said East 1/2 for a distance of 571.64 feet; thence leaving said South line run N 02006154" E for a distance of 29.79 feet to the aforesaid North right of way line; thence leaving said North right of way line continue N 02006154" E for a distance of 26.28 feet to the beginning of a curve concave to the East having a radius of 499.50 feet and a chord bearing of N 05037127/1 E; thence run Northerly along the arc of said curve through a central angle of 7001106" for a distance of 61.18 feet to the end of said curve; thence run N 09008'00" E for a distance of 89.73 feet to the beginning of a curve concave to the West having a radius of 575.50 feet and a chord bearing of N 05002146" E; thence run Northerly along th through a central angle distance of 82.11 feet to the thence run S 87°52105" E 267.67 feet; thence run N 00042-34" E for feet; e arc of said curve of 8010'28" for a end of said curve; for a distance of a distance of 20.54 thence run S 89017'26" E for a distance of 275.46 feet to the Point of Beginning. TOGETHER WITH a non-exclusive limited Entry Easement, appurtenant to the above -described property, as set forth in that certain Declaration and Reciprocal Easement Agreement dated December 21, 2004, at Reception No. 20040121628, County of Larimer, State of Colorado. AND A parcel of land located in the East # of the Southwest X of Section 32, Township 7 North, Range 68 West of the 6`h Principal Meridian, City of Fort Collins, County of Larimer, State of Colorado, being more particularly described as follows: Considering the East line of the East % of the Southwest 'A of Section 32, Township 7 North, Range 68 West as bearing South 000121210 West with all bearing contained herein relative thereto. Commencing at the Northeast corner of the East M of the Southwest % of Section 32, Township 7 North, Range 68 West of the 6th Principal Meridian, County of Larimer, State of Colorado; Thence run South 00012'21" West along the East line of the said East % for a distance of 2,652.87 feet to the Southeast corner of said East %; Thence leaving said East line run North 89027104" West along the South line of said East % for a distance of 661.67 feet to the Point of Beginning; Thence continue North 89027104" West along said South line for a distance of 662.89 feet to the Southwest corner of said East %; Thence leaving said South line run North 00015'46" East along the West line of said East y, for a distance of 30.78 feet to the North right of way line of State Highway #68 (East Harmony Road); Thence leaving said North right of way line continue North 00015'46" East along said West line for a distance of 265.87 feet; Thence leaving said West line run North 890451160 East for a distance of 691.37 feet; Thence run South 00059133" West for a distance of 14.19 feet to the beginning of a curve concave to the East having a radius of 548.68 feet and a chord bearing of South 04048150" West; Thence run Southerly along the arc of said curve through a central angle of 7038'34" for a distance of 73.19 feet to the end of said curve; Thence run South 09008100" West for a distance of 89.73 feet to the beginning of a curve concave to the East having a radius of 589.50 feet and a chord bearing of South 05037127" West; Thence run Southerly along the arc of said curve through a central angle of 7001'06" for a distance of 72.21 feet to the end of said curve; Thence run South 02006,54" West for a distance of 26.83 feet to the aforesaid North right of way line; Thence leaving said North right of way line continue South 02006154" West for a distance of 31.69 feet to the Point of Beginning. Together with a non-exclusive Limited Entry Easement appurtenant to the above -described property, as set forth in that certain Declaration and Reciprocal Easement Agreement dated November 15, 2004, by and between ARC Communities 2, LLC and Nominee Services, Inc. recorded December 27, 2004, at Reception No. 20040123056, County of Larimer, State of Colorado. EXHIBIT "B" ATTACHED TO AND MADE A PART OF THE PRIVATE DEVELOPMENT AGREEMENT BETWEEN HARMONY EXECUTIVE PARK LLC, A COLORADO LIMITED LIABILITY COMPANY ("EXECUTIVE PARK") AND FRONT RANGE RETAIL COMPANY, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY ("FRRC"). Legal Description of the FRRC Property STATEMENT OF OWNERSHIP AND SUBDIVISION KNOW ALL MEN BY THESE PRESENTS, THAT THE UNDERSIGNED, BEING OWNERS OF THE FOLLOWING DESCRIBED LAND: DESCRIPTION: A TRACT OF LAND LOCATED IN THE SOUTHEAST QUARTER OF SECTION 32, TOWNSHIP 7 NORTH, RANGE 68 WEST OF THE 6TH PRINCIPAL MERIDIAN, CITY OF FORT COLLINS, COUNTY OF LARIMER, STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTH QUARTER CORNER OF SAID SECTION 32 FROM WHICH THE SOUTHEAST CORNER OF SAID SECTION BEARS S 89026'04" E A DISTANCE OF 2647.26 FEET, SAID LINE ALSO BEING THE BASIS OF BEARINGS FOR THIS DESCRIPTION; TIJENCE' N 00011'll" E ALONG THE WEST LINE OF SAID SOUTHEAST QUARTER A DISTANCE OF 32.65 FEET TO THE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE N 00011'11" E ALONG SAID WEST LINE A DISTANCE OF 2188.30 FEET; THENCE N 89056127" E A DISTANCE OF 851.76 FEET; THENCE S 00033'57" W A DISTANCE OF 399.83 FEET; THENCE S 89048'24" E A DISTANCE OF 1768.07 FEET TO A POINT 30.00 FEET WEST OF THE EAST LINE OF SAID SOUTHEAST QUARTER OF SECTION 32; THENCE S 00011'07" W A DISTANCE OF 1096.90 FEET TO A POINT 30.00 FEET WEST OF THE EAST LINE OF SAID SOUTHEAST QUARTER OF SECTION 32; THENCE N 89048'11" THENCE S 00010149" THENCE S 44058'32" THENCE S 45000'40" THENCE S 00003'42" THENCE S 89045'30" THENCE N 88023'15" W A DISTANCE OF 876.88 FEET; W A DISTANCE OF 219.53 FEET; W A DISTANCE OF 187.18 FEET; E A DISTANCE OF 108.86 FEET; E A DISTANCE OF 281.26 FEET; W A DISTANCE OF 57.66 FEET; W A DISTANCE OF 163.00 FEET; THENCE N 89026130" W A DISTANCE OF 607.00 FEET; THENCE N 89021'44" W A DISTANCE OF 22.14 FEET; THENCE N 89019141" W A DISTANCE OF 477.84 FEET; THENCE N 89012'30" W A DISTANCE OF 153.00 FEET; THENCE N 89019'30" W A DISTANCE OF 206.38 FEET TO THE POINT OF BEGINNING; SAID PARCEL CONTAINS AN AREA OF 4,400,970 SQ. FT. OR 101.032 ACRES MORE OR LESS. THE UNDERSIGNED HAVE CAUSED THE ABOVE DESCRIBED LAND TO BE SURVEYED AND SUBDIVIDED INTO LOTS, TRACTS, STREETS AS SHOWN ON THIS PLAT TO BE KNOWN AS FRONT RANGE VILLAGE, SUBJECT TO ALL EASEMENTS AND RIGHTS -OF -WAY NOW ON RECORD OR EXISTING OR INDICATED ON THIS PLAT. EXHIBIT "C" ATTACHED TO AND MADE A PART OF THE PRIVATE DEVELOPMENT AGREEMENT BETWEEN HARMONY EXECUTIVE PARK LLC, A COLORADO LIMITED LIABILITY COMPANY ("EXECUTIVE PARK") AND FRONT RANGE RETAIL COMPANY, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY ("FRRC"). Form of Declaration of Joint Access Easement DECLARATION OF JOINT ACCESS EASEMENT THIS DECLARATION is made on the date hereinafter set forth by HARMONY EXECUTIVE PARK LLC, a Colorado Limited Liability Company ("Executive Park") and FRONT RANGE RETAIL COMPANY, L.L.C., a Delaware Limited Liability Company ("FRCC"). Executive and FRRC are sometimes hereinafter referred to jointly as "Declarants." RECITALS A. Executive Park is the owner of that certain parcel of real property (hereinafter referred to as the "Executive Park Property") situate in the City of Fort Collins, County of Larimer, State of Colorado, legally described as set forth on Exhibit "A" attached hereto and incorporated herein by this reference. B. FRRC is the owner of that certain parcel of real property (hereinafter referred to as the "FRRC Property") situate in the City of Fort Collins, County of Larimer, State of Colorado, legally described as set forth on Exhibit "B" attached hereto and incorporated herein by this reference. C. Declarants desire to establish a perpetual, reciprocal non-exclusive easement and right-of-way over and across that portion of the Executive Park Property described on Exhibit "C,, attached hereto and incorporated herein by this reference (which easement is hereinafter referred to as the "West Easement"), and to establish a perpetual, reciprocal non-exclusive easement and right-of-way over and across that portion of the FRRC Property described on Exhibit "D" attached hereto and incorporated herein by this reference (which easement is hereinafter referred to as the "East Easement"). The East Easement and the West Easement are sometimes hereinafter referred to collectively as the "Access Easement." AGREEMENT NOW, THEREFORE, for Ten Dollars ($10.00) and other valuable consideration, the receipt and adequacy of which are hereby confessed and acknowledged, Declarants do hereby create, declare, dedicate and establish a perpetual, reciprocal non-exclusive easement on, over and across the Access Easement, for the purpose of providing joint and reciprocal vehicular and pedestrian access to and from the Executive Park Property and the FRRC Property, subject to the terms and conditions set forth below. 1. The owner of the Executive Park Property and the owner of the FRRC Property shall each, at their own cost and expense (without reimbursement from the other party) have the right at any time and from time to time to construct, install, maintain and repair a permanent or temporary paved access driveway, pedestrian trail and appurtenant improvements over and upon the Access Easement. Prior to commencement of construction of any such improvements, the constructing party shall have received the written approval of the plans for such improvements from the other party, which approval shall not be unreasonably withheld or delayed, as well as final approval by the City of Fort Collins ("City") of the plans for such construction, and any building and other permits required by the City. All work performed on any of the driveway and appurtenant improvements shall be performed by the constructing party in a good and workmanlike manner, and in acFordance with the approved plans and all applicable laws, rules, orders and regulations of the City and other applicable governmental authorities, if any. Declarants agree that an owner performing any construction of improvements contemplated by this Declaration shall have a temporary non-exclusive construction easement (the "Construction Easement") over and across those portions of the other owner's property which are adjacent to the Access Easement as are reasonably necessary to permit the owner performing the work to construct such improvements (the "Construction Easement Area"). The use of the Construction Easement Area by the owner constructing the driveway improvements and its use of the Construction Easement shall not materially interfere with the rights of the other owner relating to such other owner's use and development of its property, and the two owners hereby agree to cooperate in the scheduling and completion of such work to minimize any inconvenience such work may cause. Upon substantial completion of the driveway improvements, including, but not limited to, the approval of such construction by the City, if applicable, the owner performing such work shall restore those portions of the Construction Easement Area which are not part of the improved Access Easement to substantially the same condition they were in on the date the construction was started. This Construction Easement shall terminate automatically and shall be of no further force and effect upon the completion of the driveway improvements and the final restoration of the Construction Easement Area. Neither the owner of the Executive Park Property nor the owner of the FRRC Property shall at any time install, construct, maintain, operate or place any improvements or other obstructions upon any portion of the Access Easement which would materially obstruct or interfere with the use of same by Declarants or their respective successors and assigns. 2. The easements hereby created and conveyed shall be for the mutual benefit of Declarants, and their respective successors, legal representatives, assigns, employees, tenants, subtenants, licensees, guests, business invitees or any other person having an interest in the Executive Park Property or the FRRC Property, respectively. 3. The owner of each property and each owner's respective successors and assigns, shall secure and maintain general public liability insurance, including insurance from claims against personal injury, death or property damage occurring in, or on or abput.,the Access Easement, at the sole cost and expense of such owner. Each owner granted an easement herein ("Indemnifying Owner") shall indemnify, defend and hold the other owner and its officers, directors, members, managers, successors and assigns ("Protected Owner") harmless from and against any and all claims, suits, demands, actions, judgments, damages, liens, losses, costs and expenses, including, without limitation, reasonable attorneys' fees and court costs, suffered or incurred by the Protected Owner as a result of or in connection with the use, improvement or maintenance of the easements granted herein by the Indemnifying Owner and its contractors, agents, employees, servants, customers, guests, tenants, licensees or invitees, during the period of such Indemnifying Owner's ownership of its property (it being the intent of the parties that an Indemnifying Owner shall have liability under this indemnification only with respect to events occurring during such party's ownership of a property). The foregoing indemnity shall not apply to the extent that any such claims, suits, demands, actions, judgments, liens, damages, losses, costs or expenses are the result of the negligence or intentional misconduct of the Protected Owner, its contractors, agents, employees, servants, customers, guests, tenants, licensees or invitees. 4. Until such time as certificates of occupancy have been issued with respect to the improvements located on both the Executive Park Property and the FRRC Property, the owner of either such property shall have the right to install improvements for the purpose of use and enjoyment of the easements herein granted (as set forth in paragraph 1, above), and the installing owner shall have the duty and obligation, at its sole cost and expense, to repair and maintain all improvements constructed and installed within the Access Easement in such a manner as is reasonably necessary and appropriate for the proper use of vehicular and pedestrian ingress, egress and access within, over and across the Access Easement. Such repair and maintenance shall be completed in a commercially reasonable manner as determined by that owner from time to time. Such repair and maintenance shall include, but is not necessarily limited to, the following: general maintenance, repairs, replacements, resurfacing, repainting, repaving, restriping, cleaning, sweeping, snow removal, directional signs and other markers and bumpers, and provision for personnel or independent contractors to implement the foregoing services. Following the issuance of certificates of occupancy with respect to improvements located on both the Executive Park Property and the FRRC Property, the owner of the Executive Park Property shall thereafter repair and maintain the West Easement at its sole cost and expense, and the owner of the FRRC Property shall thereafter repair and maintain the East Easement at its sole cost and expense. If the owner of the Executive Park Property shall fail to properly maintain the West Easement as hereinabove provided, the owner of the FRRC Property shall have the right, but not the obligation, to maintain and repair the West Easement upon fifteen (15) days prior written notice to the owner of the Executive Park Property of its intention to do so. Thereupon, the owner of the FRRC Property may expend such monies as may be required to properly maintain the West Easement, and the owner of the Executive Park Property shall, within fifteen (15) days after receipt of notice from the owner of the FRRC Property, reimburse the owner of the FRRC Property for the expenses actually incurred in connection with such activities. If the owner of the FRRC Property shall fail to properly maintain the East Easement as hereinabove provided, the owner of the Executive Park Property shall have the right, but not the obligation, to maintain and repair the East Easement upon fifteen (15) days prior written notice to the owner of the FRRC Property of its intention to do so. Thereupon, the owner of the Executive Park Property may expend such monies as may be required to properly maintain the East Easement, and the owner of the FRRC Property shall, within fifteen (15) days after receipt of notice from the owner of the Executive Park Property, reimburse the owner of the Executive Park Property for the expenses actually incurred in connection with such activities. Without limiting the availability of any other remedy provided at law or in equity, or by this Declaration, in the event of failure of any party to pay any reimbursement hereunder when due, the owner of the other property shall be entitled to a lien against the property of the nonpaying owner to secure payment of such amount, which lien may be evidenced, at the non -defaulting owner's election, by notice of lien setting forth the amount due and rate of interest accruing thereon, which lien may be recorded in the real property records of Larimer County, Colorado, until such lien is paid and discharged, and which lien may be foreclosed in the same manner as a real estate mortgage under Colorado law. 5-. Notwithstanding any other provisions herein to the contrary, the owner of each respective property shall be responsible for and shall hold the other owner harmless from any costs or damages to and expense for repair of the Access Easement caused by extraordinary use thereof by such owner (including, without limitation, use of the Access Easement for ingress and egress for construction equipment or similar heavy use) and any damage to the driveway improvements caused by the negligence or willful acts of such owner, its guests or business invitees. 6. Each of the parties shall keep the Access Easement free and clear of any prior liens or encumbrances, or any mechanics or materialmen liens, resulting from the activities of such party. Each of the owners of the Executive Park Property and the FRRC Property agree to pay or cause to be paid directly to the appropriate taxing authorities, prior to delinquency, all real property taxes and assessments which are levied against their respective properties. 7. The easements hereby created and conveyed are non- exclusive and shall furthermore be subject to the rights of any pre-existing grants of easements appearing of record in the shall have the authority to bind the Company to any third party with respect to any matter. 2.5 Admission of Members. New members shall be admitted only upon the approval of the Member. 2.6 Special Member. Upon the occurrence of any event that causes the Member to cease to be a member of the Company (other than pursuant to a transfer of all of its limited liability company interests in the Company pursuant to this Agreement and the admission of the transferee as a substitute Member), each person or entity acting as an Independent Manager (as defined herein) shall, without any action of any person or entity and simultaneously with the Member ceasing to be a member of the Company, automatically be admitted to the Company as a member of the Company (a "Special Member^) and shall continue the Company without dissolution. Upon such event, the Company shall provide the Special Member with appropriate and reasonable compensation. No Special Member may resign from the Company or transfer its rights as Special Member unless (i) a successor Special Member has been admitted to the Company as Special Member by executing a counterpart to this Agreement, and (ii) such successor has also accepted its appointment as Independent Manager; provided, however, a Special Member shall automatically cease to be a member of the Company upon the admission to the Company of a substitute Member. Each Special Member shall be a member of the Company that has no interest in the profits, losses and capital of the Company and has no right to receive any distributions of Company assets. Pursuant to Section 18-301 of the Act, a Special Member shall not be required to make any capital contributions to the Company and shall not receive a limited liability company interest in the Company. A Special Member, in its capacity as Special Member, may not bind the Company. Except as required by any mandatory provision of the Act, each Special Member, in its capacity as Special Member, shall have no right to vote on, approve or otherwise consent to any action by, or matter relating to, the Company, including, without limitation, the merger, consolidation or conversion of the Company. In order to implement the admission to the Company of each Special Member, each person or entity acting as an Independent Manager shall execute a counterpart to this Agreement. Prior to its admission to the Company as Special Member, each person or entity acting as an Independent Manager shall not be a member of the Company. 2.7 Powers of Member. Subject to the Provisions of Article II and Article III of this Agreement, the powers of the Member shall include but not be limited to: 4 368183.02-New Ywk Saver 3A - MSW Larimer County, Colorado real estate records. Furthermore, in the event the City requires any easement in favor of the City to confirm such access, or emergency access or similar right, the parties shall cooperate as reasonably necessary to grant such additional easements as may be required by the City, but this Declaration shall nevertheless remain in full force and effect as between Declarants, and their respective successors and assigns. 8. The easements hereby created and conveyed may be amended, vacated, released, abandoned or terminated in whole or in part by instrument executed by the then owners of the Executive Park Property and the FRRC Property, together with the holders of any first mortgages encumbering any portions of said properties. Any such instrument must be recorded in the Office of the Clerk and Recorder of Larimer County, Colorado, to be effective, valid and binding. 9. Any notice or other communication given by either party to the other relating to this Agreement shall be in writing, and shall be delivered in person, sent by certified mail, return receipt requested, or sent by reputable overnight courier, to such other_ party at the respective addresses set forth below (or at such other address as may be designated from time to time by written notice given in the manner provided herein). Such notice shall, if hand delivered or personally served, be effective immediately upon receipt. If sent by certified mail, return receipt requested, such notice shall be deemed given on the third business day following deposit in the United States mail, postage prepaid and properly addressed; and if delivered by overnight courier, shall be deemed effective on the first business day following deposit with such courier: If to Executive Park, to: Harmony Executive Park LLC 114 North Mason Street, Suite 4 Fort Collins, Colorado 80524 If to FRCC, to: Front Range Retail Company, L.L.C. c/o Bayer Properties, L.L.C. 2222 Arlington Avenue Birmingham, Alabama 35205 10. This Declaration shall be governed by and construed in accordance with the laws of the State of Colorado. 11. Nothing in this Declaration shall be construed to make the parties hereto partners or joint venturers or to render either of said parties liable for the debts or obligations of the other party. 12. To the extent necessary to give effect to the terms hereof, and the declaration and dedication herein made, this Declaration shall constitute a covenant against the Executive Park Property and the FRRC Property, and the Executive Park Property and the FRRC Property shall hereafter be held, sold, conveyed, transferred, leased, subleased or occupied subject to the terms, conditions, covenants or limitations set forth herein, which shall run with said properties, and be binding upon all parties who have any right, title or interest in said properties, or any portion thereof. 13. The terms and provisions contained in this Declaration of Joint Access Easement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF, the parties hereto have executed this Declaration of Joint Access Easement as of the day and year first above written. HARMONY EXECUTIVE PARK LLC, a Colorado Limited Liability Company By: Gino Campana, Manager FRONT RANGE RETAIL COMPANY, L.L.C., a Delaware Limited Liability Company UZ STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) The foregoing instrument was acknowledged before me this day of 20Q6, by Gino Campana as Manager of HARMONY EXECUTIVE PARK LLC, a Colorado Limited Liability Company. WITNESS my hand and official seal. My commission expires: Notary Public STATE OF ) ss. COUNTY OF ) The foregoing instrument wag acknowledged before me this day of , 2006, by as of FRONT RANGE RETAIL COMPANY, L.L.C., a Delaware Limited Liability Company. WITNESS my hand and official seal. My commission expires: Notary Public RATIFICATION (Lender - Executive Park Property) The undersigned, having a security interest in or lien upon all or any part of the real property described on Exhibit "A" attached hereto and incorporated herein by reference, hereby approves, ratifies, confirms, and consents to the foregoing Declaration of Joint Access Easement. IN WITNESS WHEREOF, the undersigned has caused its name to be hereunto subscribed by its this day of 2006, a M Title: STATE OF COLORADO ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this day of 2006, by as of a WITNESS my hand and official seal. My commission expires: Notary Public RATIFICATION (Lender FFRRC Property) The undersigned, having a security interest in or lien upon all or any part of the real property described on Exhibit °B" attached hereto and incorporated herein by reference, hereby approves, ratifies, confirms, and consents to the foregoing Declaration of Joint Access Easement. IN WITNESS WHEREOF, the undersigned has caused its name to be hereunto subscribed by its this day of , 2006. STATE OF COLORADO COUNTY OF The foregoing day of WACHOVIA BANK, a National Association M Title: ss. instrument was acknowledged before me 2006, by Of WACHOVIA BANK, a National Association. WITNESS my hand and official seal. My commission expires: Notary Public this as EXHIBIT "A" ATTACHED TO AND MADE A PART OF THE DECLARATION OF JOINT ACCESS EASEMENT BETWEEN HARMONY EXECUTIVE PARK LLC, A COLORADO LIMITED LIABILITY COMPANY ("EXECUTIVE PARK") AND FRONT RANGE RETAIL COMPANY, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY ("FRRC"). Legal Description of the Executive Park Property A parcel of land located in the East 1/2 of the Southwest 1/4 of Section 32, Township 7 North, Range 68 West of the 6th Principal Meridian, City of Fort Collins, County of Larimer, State of Colorado, being more particularly described as follow: Considering the East line of the East 1/2 of the Southwest 1/4 of Section 32, Township 7 North, Range 68 West as bearing S 00012121" W with all bearings contained herein relative thereto. COMMENCING at the Northeast corner of the East 1/2 of the Southwest 1/4 of Section 32, Township 7 North, Range 68 West, of the 6th Principal Meridian, County of Latimer, State of Colorado; thence run S 00012,21" W along the East line of the said East 1/2 for a distance of 2353.03 feet to the POINT OF BEGINNING; thence continue S 00012'21" W along said East line for a distance of 270.05 feet to the North right of way line of State Highway #68 (East Harmony Road); thence leaving said North right of way line continue S 0002121" W along said East line for a distance of 29.79 feet to the Southeast corner of said East 1/2; thence leaving said East line run N 89027104" W along the South line of said East 1/2 for a distance of 571.64 feet; thence leaving said South line run N 02006154" E for a distance of 29.79 feet to the aforesaid North right of way line; thence leaving said North right of way line continue N 02006'54" E for a distance of 26.28 feet to the beginning of a curve concave to the East having a radius of 499.50 feet and a chord bearing of N 05037127" E; thence run Northerly along the arc of said curve through a central angle of 7001106" for a distance of 61.18 feet to the end of said cuxva thence run N 09008'00" E for a dizLrance of ". 73 feet to the icytnaq �rve concave to h - --We3L paving a radius of 575.50 feet and-,a__eimxd --_ bearing of N 05002146" E; thence run Northerly along the arc of said curve through a central angle of 8010128" for a distance of 82.11 feet to the end of said curve; thence run S 87052105" E for a distance of 267.67 feet; thence run N 00042134" E for a distance of 20.54 feet; thence run S 89017/260 E for a distance of 275.46 feet to the Point of Beginning. TOGETHER WITH a non-exclusive limited Entry Easement, appurtenant to the above -described property, as set forth in that certain Declaration and Reciprocal Easement Agreement dated December 21, 2004, at Reception No. 20040121628, County of Larimer, State of Colorado. AND A parcel of land located in the East % of the Southwest % of Section 32, Township 7 North, Range 68 West of the 6th Principal Meridian, City of Fort Collins, County of Larimer, State of Colorado, being more particularly described as follows: Considering the East line of the East M of the Southwest % of Section 32, Township 7 North, Range 68 West as bearing South 00012121" West with all bearing contained herein relative thereto. Commencing at the Northeast corner of the East M of the Southwest % of Section 32, Township 7 North, Range 68 West of the 6th Principal Meridian, County of Larimer, State of Colorado; Thence run South 00112'21" West along the East line of the said East M for a distance of 2,652.87 feet to the Southeast corner of said East %; Thence leaving said East line run North 89027'04" West along the South line of said East % for a distance of 661.67 feet to the Point of Beginning; Thence continue North 89027'04" West along said South line for a distance of 662.89 feet to the Southwest corner of said East %; Thence leaving said South line run North 00015'46" East along the West line of said East % for a distance of 30.78 feet to the North right of way line of State Highway #68 (East Harmony Road); Thence leaving said North right of way line continue North 00015146" East along said West line for a distance of 265.87 feet; Thence leaving said West line run North 89045116" East for a distance of 691.37 feet; Thence run South 00°59133" West for a distance of 14.19 feet to the beginning of a curve concave to the East having a radius of 548.68 feet and a chord bearing of South 04048'50" West; Thence run Southerly along the arc of said curve through a central angle of 7038'34" for a distance of 73.19 feet to the end of said curve; Thence run South 09008100" West for a distance of 89.73 feet to the beginning of a curve concave to the East having a radius of 589.50 feet and a chord bearing of South 05037127" West; Thence run Southerly along the arc of said curve through a central angle of 7001'06" for a distance of 72.21 feet to the end of said curve; Thence run South 02006154" West for a distance of 26.83 feet to the aforesaid North right of way line; Thence leaving said North right of way line continue South 02006154" West for a distance of 31.69 feet to the Point of Beginning. Together with a non-exclusive Limited Entry Easement appurtenant to the above -described property, as set forth in that certain Declaration and Reciprocal Easement Agreement dated November 15, 2004, by and between ARC Communities 2, LLC and Nominee Services, Inc. recorded December 27, 2004, at Reception No. 20040123056, County of Larimer, State of Colorado. EXHIBIT "B" ATTACHED TO AND MADE A PART OF THE DECLARATION OF JOINT ACCESS EASEMENT BETWEEN HARMONY EXECUTIVE PARK LLC, A COLORADO LIMITED LIABILITY COMPANY ("EXECUTIVE PARK") AND FRONT RANGE RETAIL COMPANY, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY ("FRRC"). Legal Description of the FRRC Property STATEMENT OF OWNERSHIP AND SUBDIVISION KNOW ALL MEN BY THESE PRESENTS, THAT THE UNDERSIGNED, BEING OWNERS OF THE FOLLOWING DESCRIBED LAND: DESCRIPTION: A TRACT OF LAND LOCATED IN THE SOUTHEAST QUARTER OF SECTION 32, TOWNSHIP 7 NORTH, RANGE 68 WEST OF THE 6TH PRINCIPAL MERIDIAN, CITY OF FORT COLLINS, COUNTY OF LARIMER, STATE OF COLORADO, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS: COMMENCING AT THE SOUTH QUARTER CORNER OF SAID SECTION 32 FROM WHICH THE SOUTHEAST CORNER OF SAID SECTION BEARS S 89026104" E A DISTANCE OF 2647.26 FEET, SAID LINE ALSO BEING THE BASIS OF BEARINGS FOR THIS DESCRIPTION; THENCE N 00-11'11" E ALONG THE WEST LINE OF SAID SOUTHEAST QUARTER A DISTANCE OF 32.65 FEET TO THE POINT OF BEGINNING OF THIS DESCRIPTION; THENCE N 00011'11" E ALONG SAID WEST LINE A DISTANCE OF 2188.30 FEET; THENCE N 89056'27" E A DISTANCE OF 851.76 FEET; THENCE S 00033'57" W A DISTANCE OF 399.83 FEET; THENCE S 89048'24" E A DISTANCE OF 1768.07 FEET TO A POINT 30.00 FEET WEST OF THE EAST LINE OF SAID SOUTHEAST QUARTER OF SECTION 32; THENCE S 000111071, W A DISTANCE OF 1096.90 FEET TO A POINT 30.00 FEET WEST OF THE EAST LINE OF SAID SOUTHEAST QUARTER OF SECTION 32; THENCE N 89048111" THENCE S 00010'49" THENCE S 44058'32" THENCE S 45000140" THENCE S 00003'42" THENCE S 89045'30" W A DISTANCE OF W A DISTANCE OF W A DISTANCE OF E A DISTANCE OF E A DISTANCE OF W A DISTANCE OF 876.88 FEET; 219.53 FEET; 187.18 FEET; 108.86 FEET; 281.26 FEET; 57.66 FEET; THENCE N 88023'15" THENCE N 89026'30" THENCE N 89021'44" THENCE N 89019'41" THENCE N 89012'30" THENCE N 89019130" BEGINNING; W A DISTANCE OF 163.00 FEET; W A DISTANCE OF 607.00 FEET; W A DISTANCE OF 22.14 FEET; W A DISTANCE OF 477.84 FEET; W A DISTANCE OF 153.00 FEET; W A DISTANCE OF 206.38 FEET TO THE POINT OF SAID PARCEL CONTAINS AN AREA OF 4,400,970 SQ. FT. OR 101.032 ACRES MORE OR LESS. THE UNDERSIGNED HAVE CAUSED THE ABOVE DESCRIBED LAND TO BE SURVEYED AND SUBDIVIDED INTO LOTS, TRACTS, STREETS AS SHOWN ON THIS PLAT TO BE KNOWN AS FRONT RANGE VILLAGE, SUBJECT TO ALL EASEMENTS AND RIGHTS -OF -WAY NOW ON RECORD OR EXISTING OR INDICATED ON THIS PLAT. 2.7.1 The right and power to elect and remove a Manager as provided in Section 3.1 hereof and the obligation to .elect an Independent Manager (as hereinafter defined) upon the death, resignation or other disqualification of the then current Independent Manager; 2.7.2 The right and power to approve any new investment or Purchase by the Company, and any other transaction that may require an additional capital contribution by the Members. 2.7.3 The right and power to approve the sale, mortgage, exchange or other disposition of any of the Company's material assets or property outside of the ordinary course of business as described in Section 1.3 when such sale, lease, exchange, or other disposition is, or is part of, a single transaction or plan and includes fifty percent (50%) or more of the Company's assets or property; 2.7.4 The right and power to dissolve, liquidate or the Company subject to Article III; 2.7.5 The right and power to admit a substitute Member in connection with the sale of a Common Interest except for permitted transfers as provided in Article VIII hereof; 2.7.6 Subject to the prior unanimous written approval of the Manager and all of the Independent Managers (as hereinafter defined), the filing or the consent to filing of any bankruptcy or insolvency petition, any general assignment for the benefit of creditors, or the institution of any other insolvency proceeding, on behalf of the Company provided, however, that no such approval shall be granted unless there are at least two Independent Managers then serving in such capacity; and 2.7.7 The approval of any amendment to this Agreement, subject also to the written consent of the Lender, which consent shall not unreasonably be withheld. ARTICLE 3 The Manager 3.1 Management By A Manager. (a) Subject to such matters which are expressly reserved hereunder or under the Act to the Member for decision, the business and affairs of the Company shall be managed by a Manager (the "Manager"), and shall be responsible for policy setting, approving the overall direction of the Company and making all decisions affecting the business and affairs of the 5 368183.02-New York Server 3A - NSW EXHIBIT "C" ATTACHED TO AND MADE A PART OF THE DECLARATION OF JOINT ACCESS EASEMENT BETWEEN HARMONY EXECUTIVE PARK LLC, A COLORADO LIMITED LIABILITY COMPANY ("EXECUTIVE PARK") AND FRONT RANGE RETAIL COMPANY, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY ("FRRC"). Legal Description of the West Easement [TO BE DETERMINED] EXHIBIT "D" ATTACHED TO AND MADE A PART OF THE DECLARATION OF JOINT ACCESS EASEMENT BETWEEN HARMONY EXECUTIVE PARK LLC, A COLORADO LIMITED LIABILITY COMPANY ("EXECUTIVE PARK") AND FRONT RANGE RETAIL COMPANY, L.L.C., A DELAWARE LIMITED LIABILITY COMPANY ("FRRC"). Legal Description of the East Easement [TO BE DETERMINED] IHF&M 08/28/06) 27 FIRST AMENDMENT TO DECLARATION AND RECIPROCAL EASEMENT AGREEMENTS THIS FIRST AMENDMENT TO DECLARATION AND RECIPROCAL EASEMENT AGREEMENTS is made and entered into this _ _ day of 2007, by and between ARC COMMUNITIES 2, LLC, a Delaware Limited Liabili Company ("ARC") and HARMONY EXECUTIVE PARK LLC, a Colorado Limited Liability Company ("Harmony"). RECITALS A. ARC and Nominee Services, Inc., a Colorado Corporation (predecessor in interest to Harmony), were parties to that certain Declaration and Reciprocal Easement Agreement (Harmony Road) (Parcel 1-Westerly Parcel) dated as of December 15, 2004, recorded December 27, 2004, under Reception No. 2004013056 of the Larimer County, Colorado records. B. ARC and Imago Enterprises, Inc. (predecessor in interest to Harmony) were parties to that certain Declaration and Reciprocal Easement Agreement (Harmony Road) (Parcel 2-Easterly Parcel) dated as of December 6, 2004, recorded December 21, 2004, under Reception No. 20040121628 of the Larimer County, Colorado records. C. The Declaration and Reciprocal Easement Agreements identified in Recitals A and B, above, are hereinafter referred to collectively as the "Easement Agreements." D. ARC continues to be the record owner of that certain real property located in Larimer County, Colorado, described as the "C ommunity" in the Easement Agreements. E. Harmony is now the record owner of those real properties identified as the "Frontage Property" in the Easement Agreements. F. ARC and Harmony have agreed to amend the Easement Agreements in certain respects as more fully set forth herein; notwithstanding any provision of the Easement Agreements to the contrary, the Easement Agreements shall not be extinguished or terminated by virtue of the dedication of Snow Mesa Drive, and the covenants and conditions in the Easement Agreement shall survive such dedication. AGREEMENT NOW, THEREFORE, in consideration of the mutual covenants and conditions herein contained, and other good and valuable consideration, the receipt and adequacy of which are hereby confessed and acknowledged, ARC and Harmony hereby agree as follows: 1. Paragraph 1 of the Easement Agreements is hereby amended and supplemented to reflect that ARC agrees to the expansion of the scope of the Entry Easement and dedication of the Entry Easement to the City of Fort Collins (the "City"), as reflected on the proposed Plat of the Pads at Harmony, Filing 1, City of Fort Collins, County of Latimer, State of Colorado, and the construction and improvements thereon as more fully reflected on the Project Development Plan for the Pads at Harmony prepared by Land Images, Inc., Job No. 06-19, dated 08.13.06, revised 10.16.06. Without limiting the foregoing, ARC agrees to join in the execution of the Plat dedicating Snow Mesa Drive to the City in accordance with the foregoing, and ARC furthermore consents to construction of the improvements reflected on the Project Development Plan, provided that the same are constructed in complete conformity with same (including, without limitation, reconfiguration of the improvements to include island -medians, traffic circle, pedestrian crossings, and curb and gutter as reflected on the Project Development Plan. 2. ARC hereby agrees to grant and dedicate to the City an additional right-of-way as reflected on Exhibit "A" attached hereto and incorporated herein by this reference, on form acceptable to the City, provided that ARC shall have no obligation, responsibility or liability with respect to maintenance of the improvements to be constructed on said right -of --way. Said additional right-of-way shall constitute a part of the "Entry Easement" as defined in the Easement Agreements. 3. ARC acknowledges and agrees that provided that reasonable access to the Community is maintained at all times, the Entry Easement, as dedicated to the City, shall also permit the construction, maintenance, repair and replacement of utility lines and services, including, without limitation, water, sanitary sewer, gas, storm drainage, telephone and other communication lines, electrical lines and conduits which service the Community or persons residing therein, or which service the Frontage Property or persons occupying same. 4. ARC hereby grants, remises and establishes for the benefit of Harmony, a non- exclusive temporary construction easement (the "Construct ion Easement") on, over and across that portion of the Community identified on Exhibit " B" attached hereto and incorporated herein by this reference for the purpose of undertaking construction of the improvements contemplated by the Project Development Plan for the Pads at Harmony and the Plat of the Pads at Harmony, Filing 1. Such Construction Easement shall terminate and thereafter be null and void upon completion of construction of such improvements and acceptance of same by the (HF&M 12/07/06) 2 City. Harmony hereby agrees to indemnify and hold ARC harmless from and against any cost, expense, loss, obligation, damage, claim or liability arising out of any activities on ARC's Community or the Construction Easement. Provided that there is no default by Harmony hereunder, ARC furthermore hereby covenants and agrees to grant and dedicate a temporary construction easement over and upon that portion of the Community identified on Exhibit " B" attached hereto and incorporated herein by this reference to the City, if required by the City, which grant of construction easement shall expire on or before December 1, 2007. 5. Harmony covenants and agrees that it shall, at all times during the course of construction of improvements over and upon the Entry Easement/Snow Mesa Drive, phase all work so as to at all times maintain reasonable complete access between East Harmony Road and the Community. 6. All costs and expenses incurred in connection with the creation of the foregoing easements and the construction, repair and/or maintenance of any improvements thereon shall, as between ARC and Harmony, be borne in their entirety by Harmony. 7. Harmony hereby covenants and agrees to extend the existing driveway located to the east of Snow Mesa Drive from its current westerly termination point to the curb line of the realigned Snow Mesa Drive, in accordance with plans approved by ARC (which approval shall not be unreasonably withheld), all at the sole cost and expense of Harmony. 8. Except as expressly amended and modified herein, all of the terms and provisions of the Easement Agreements shall remain the same, and in full force and effect, and the validity of the Easements Agreement is hereby reaffirmed by the parties. 9. This First Amendment may be executed in any one or more counterparts, each of which shall be deemed an original, and all of which shall constitute one and the same instrument. 10. This Amendment shall be binding upon and inure to the benefit of the parties hereto and their successors and assigns. (HF&M 12/07/06) 3 IN WITNESS WHEREOF, the parties hereto have executed this First Amendment to Declaration and Reciprocal Easement Agreements as of the day and year first above written. ARC COMMUNITIES 2, LLC, a Delaware Limiteedd/ Liability Company By: /ScjOtt GeAg1>C,,' Vice President HARMONY EXECUTIVE PARK LLC, a Colorado Limited Liability Company By: Campana Manager (HF&M 12/07/06) 4 CONSENT AND APPROVAL BY LIENHOLDER The undersigned, having a security interest in the property described on Exhibit "A," hereby subordinates its interest to, and approves, ratifies, confirms and consents to, the foregoing Deed of Dedication for Easement. LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR MORGAN STANLEY DEAN WITTER MORTGAGE CAPITAL I INC., COMMERCIAL MORTGAGE PASS -THROUGH CERTIFICATES, SERIES 2002-IQ2 By: KeyCorp Real Estate Capital Markets, Inc., Authorized Agent By: Q me: John Sanborn itle: Vice President ACKNOWLEDGMENT FOR NOTEHOLDER STATE OF TEXAS § 5 COUNTY OF DALLAS § , This instrument was ACKNOWLEDGED before me, on the s y�day of 2007, by John Sanborn as Vice President for KeyCorp Real Estate Capital Markets, Inc., Authorized Agent for LASALLE BANK NATIONAL ASSOCIATION, AS TRUSTEE FOR MORGAN STANLEY DEAN WITTER MORTGAGE CAPITAL I INC., COMMERCIAL MORTGAGE PASS -THROUGH CERTIFICATES, SERIES 2002-IQ2.- z-tom-.-� �—Notary Publi , Sfate of as MY Commission Expires: /\ �.v, ,,,^G Y` Printed Name of Notary Public (12/07/06) 4 EXHIBIT "A" ATTACHED TO AND MADE A PART OF THE FIRST AMENDMENT TO DECLARATION AND RECIPROCAL EASEMENT AGREEMENTS BY AND BETWEEN ARC COMMUNITIES 2, LLC, A DELAWARE LIMITED LIABILITY COMPANY ("ARC") AND HARMONY EXECUTIVE PARK LLC, A COLORADO LIMITED LIABILITY COMPANY ("HARMONY"). Leal Description of the Additional Ri ht-Of-Way [SEE ATTACHED] EXHIBIT A LEGAL DESCRIPTION A PORTION OF THAT PARCEL OF LAND AS DESCRIBED UNDER RECEPTION NUMBER 2002057099 OF THE LARIMER COUNTY RECORDS AND LOCATED IN THE SOUTHWEST QUARTER OF SECTION 32. TOWNSHIP 7 NORTH, RANGE 68 WEST OF THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF WUM STATE OF COLORADO. AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS, BASIS OF BEARINGS; THE EAST LINE OF THE SOUTHWEST QUARTER OF SECTION 32, TOWNSHIP 7 NORTH, RANGE 68 WEST OF THE SIXTH PRINCIPAL MERIDIAN BEARS N 0011'11" E; COMMENCING AT THE SOUTH QUARTER CORNER OF SAID SECTION 32; THENCE N 001111' E, ALONG THE EAST LINE OF THE SOUTHWEST QUARTER OF SAID SECTION 32. A DISTANCE OF 270.06 FEET; THENCE N 8918'36" W, A DISTANCE OF 275.46 FEEL - THENCE S 00'41'24" W, A DISTANCE OF 20.54 FEET; THENCE N 87WIS' W, A DISTANCE OF 267.67 FEET; THENCE N 02'06'45' E, A DISTANCE OF 20.05 FEET; THENCE S 89'44'06" W. A DISTANCE OF 7.53 FEET TO THE POINT OF BEGINNING; THENCE CONTINUING S 89'44'06' W, A DISTANCE OF 76.63 FEET; THENCE N 00'4031" E, A DISTANCE OF 15.27 FEET; THENCE S 90-00'00" E. A DISTANCE OF 76.59 FEET; THENCE S 00'3258" W, A DISTANCE OF 1492 FEET 70 THE POINT OF BEGINNING CONTAINING AN AREA OF 1.156 SQUARE FEET OR 0.027 ACRES. MORE OR LESS. SURVEYOR'S STATEMENT I HEREBY STATE THAT THE ATTACHED LEGAL DESCRIPTION WAS PREPARED BY ME OR UNDER MY RESPONSIBLE CHARGE AND IS ACCURATE TO THE BEST OF MY KN011LLEDGE AND BELIEF. GARY FASELT, PLS 25942 FOR AND ON BEHALF OF STANTEC CONSULTING INC. Stantec Consulting Inc. 2000 S Colorado Blvd Suite 2-300 Denver, 00 80222 Tel. 303.758.4058 Fax. 303.758.4828 www.stantec.com LEGAL DESCRIPTION SW 1/4 OF SECTION 32 T 7 N. R 68 W OF THE 6TH PM CITY OF FORT COLLINS COUNTY OF LARIMER STATE OF COLORADO ECT NO.: 1870 10510 11/1/O6 awx: sNo=r: GF 1 OF 2 Ilk ¢ }/$/ % z §k ��k |f/ƒfs k§ \ji7� n �csp �7� 2 Sj k 100E7:00F @®>m§§§mpg zp °} /g G$ # §= 2 SNO SEED B K \ % ~��o@r \§§)lvrOq ` 0k § 4_ 0 : q ` 2 §}■ & En Z 0 3e co �0@� r- ° [ 0.09 E «$ \§ f 2 a �§ §(£d 7 §/)� 2 k� V z ay •§ .§ k# To -� 00 � 0 � B . § ) o q _Mm7 °IF z # Company. The Manager is hereby designated as a "manager" within the meaning of the Act. ( ber and shall seveuntilahisMoraher successor ehas ted y been duly elected ted and qualified, or until his or her earlier removal, resignation, death or disability. The Member may remove any Manager from any capacity with the Company at any time, with or without cause. The Manager may resign at any time upon written notice to the Member. (c) Any vacancy occurring in the Manager as a result of the resignation, removal, death or disability of a Manger shall be filled by the Member. A Manager chosen to fill a vacancy resulting from the resignation, removal, death or disability of a Manager shall serve the unexpired term of his or her predecessor in office. 3.2 General Powers. Except as otherwise provided by this Agreement, the Manager shall have exclusive authority to manage the operations and affairs of the Company and to make all decisions regarding the business of the Company independent of, and not dictated by, any Member or any affiliate of any Member, and take such actions as he deems necessary and appropriate to accomplish the purpose of the active management of the business and operations of the Company. The Manager's duties with respect to the Company may be delegated by the Manager to other officers, agents or employees of the Company on such terms as the Manager may deem appropriate from time to time. Pursuant to the foregoing, it is understood and agreed that the Manager shall have all of the rights and powers of a manager as provided in the Act and as otherwise provided by law, and any action taken by the Manager shall constitute the act of and serve to bind the Company. The expression of any power or authority of the Manager in this Agreement shall not in any way limit or exclude any other power or authority which is not specifically or expressly set forth in this Agreement. Notwithstanding any of the foregoing, the Company shall be operated in such a manner as the Manager deems reasonable and necessary or appropriate to preserve the limited liability of the Member, the separateness of the Company from the business of the Member, and the special-purpose, bankruptcy -remote status of the Company. 3.3 Reliance by Third Parties. Except as limited by the terms of this Agreement and subject to the limitations of this Agreement and by the terms of the Loan Agreement, third parties dealing with the Company may rely conclusively upon any certificate of the Manager to the effect that the Manager (or his designee) is acting on behalf of the Company. Subject to the 6 368133.02-New Yoh Savo 3A - MSW EXHIBIT "B" ATTACHED TO AND MADE A PART OF THE FIRST AMENDMENT TO DECLARATION AND RECIPROCAL EASEMENT AGREEMENTS BY AND BETWEEN ARC COMMUNITIES 2, LLC, A DELAWARE LIMITED LIABILITY COMPANY ("ARC") AND HARMONY EXECUTIVE PARK LLC, A COLORADO LIMITED LIABILITY COMPANY ("HARMONY"). Leal Description of the Temporary Construction Easement (SEE ATTACHED] EXHIBIT �, EASEMENT DESCRIP71ON A TEMPORARY CONSTRUCTION EASEMENT OVER AND ACROSS A PORTION OF THAT PARCEL OF LAND AS DESCRIBED UNDER RECEPTION NUMBER 2002057099 OF THE LARIMER COUNTY RECORDS AND LOCATED IN THE SOUTHWEST QUARTER OF SECTION 32, TOWNSHIP 7 NORTH. RANGE 68.WEST OF THE SIXTH PRINCIPAL MERIDIAN, COUNTY OF LARIMER. STATE OF COLORADO. AND BEING MORE PARTICULARLY DESCRIBED AS FOLLOWS; - BASIS OF BEARINGS: THE EAST LINE OF THE SOUTHWEST QUARTER OF SECTION 3$ TOWNSHIP 7 NORTH, RANGE 68 WEST OF THE SIXTH PRINCIPAL MERIDIAN BEARS N 0011'11' E; COMMENCING AT THE SOUTH QUARTER CORNER OF SAID SECTION 32; THENCE N 00'11'11' E. ALONG THE EAST LINE OF THE SOUTHWEST QUARTER OF SAID SECTION 32. A DISTANCE OF 270.06 FEET; THENCE N 89'18'36' W, A DISTANCE OF 275.46 FEET; THENCE S 00'41'24' W. A DISTANCE OF 20.54 FEET; THENCE N 87'53'15' W. A DISTANCE OF 249.65 FEET TO THE POINT OF BEGINNING, THENCE CONTINUING N 8753'15' W. A DISTANCE OF 1&02 FEET; THENCE N 02'06'45' E, A DISTANCE OF 20.05 FEET; THENCE S 89'44'06' W. A DISTANCE OF 109.16 FEET; THENCE N 00'40'31' E, A DISTANCE OF 100.40 FEET; THENCE S 90'00'00' I, A DISTANCE OF 126.40 FEET; THENCE S 0012'58' W. A DISTANCE OF 120.59 FEET TO THE POINT OF BEGINNING; CONTAINING AN AREA OF 13.026 SQUARE FEET OR 0.299 ACRES, MORE OR LESS. SURVEYOR'S STATEMENT I HEREBY STATE THAT THE ATTACHED EASB04T DESCRIPTION WAS PREPARED BY ME OR UNDER MY RESPONSIBLE CHARGE AND IS ACCURATE TO THE BEST OF MY KNOWLEDGE AND BELIEF. GARY FASELT, PLS 25942 FOR AND ON BEHALF OF STANTEC CONSULTING INC. Stantec Consulting Inc. 2000 S Colorado Blvd Suite 2-300 Denver. CO 80222 Tel. 303.758.4058 Fax. 303.758.4828 www.etantec.com EASEMENT DESCRIPTION SW 1/4 OF SECTION 32 T 7 N, R 68 W OF THE 6TH PM CITY OF FORT COLLINS COUNTY OF LARIMER STATE OF COLORADO 14W 11 /2/O6 CAD CPRa �g� o � �» Do �E� ® i i moo /tam \)Z OW Ko . !B § 0 # )§J# o = A ®@eeƒf � �/ )` jCL °TOPpi } °ƒ RE mo ° � \ 0 k � # k.gp` § § m�%i; 0_�. wq ) ■ � �§�; §k$ z§ cu qk\ 0 §/� k} 20 n 222) 2 V:� _0 OD q�� § z i2 $ J60 .012 "k .g 2_ �£ § k ■� §) \\) . © � . of ® § o 9 _,mP z * — — - DECLARATION OF JOINT ACCESS EASEMENT THIS DECLARATION is made on the date hereinafter set forth by HARMONY EXECUTIVE PARK LLC, a Colorado Limited Liability Company ("Executive Park") and FRONT RANGE RETAIL COMPANY, L.L.C., a Delaware Limited Liability Company ("FRCC"). Executive and FRRC are sometimes hereinafter referred to jointly as"Declarants." RECITALS A. Executive Park is the owner of that certain parcel of real property (hereinafter referred to as the "Executive Park Property") situate in the City of Fort Collins, County of Larimer, State of Colorado, legally described as set forth on Exhibit "A" attached hereto and incorporated herein by this reference. B. FRRC is the owner of that certain parcel of real property (hereinafter referred to as the "FRRC Property") situate in the City of Fort Collins, County of Larimer, State of Colorado, legally described as set forth on Exhibit `B" attached hereto and incorporated herein by this reference. C. Declarants desire to establish a perpetual, reciprocal non-exclusive easement and right-of-way over and across that portion of the Executive Park Property depicted on Exhibit "C" attached hereto and incorporated herein by this reference (which easement is hereinafter referred to as the "West Easement'), and to establish a perpetual, reciprocal non-exclusive easement and right-of-way over and across that portion of the FRRC Property depicted on Exhibit "D" attached hereto and incorporated herein by this reference (which easement is hereinafter referred to as the "East Easement"). The East Easement and the West Easement are sometimes hereinafter referred to collectively as the "Access Easement." NOW, THEREFORE, for Ten Dollars ($10.00) and other valuable consideration, the receipt and adequacy of which are hereby confessed and acknowledged, Declarants do hereby create, declare, dedicate and establish a perpetual, reciprocal non-exclusive easement on, over and across the Access Easement, for the purpose of providing joint and reciprocal vehicular and pedestrian access to and from the Executive Park Property and the FRRC Property, subject to the terms and conditions set forth below. 1. The owner of the Executive Park Property and the owner of the FRRC Property shall each, at their own cost and expense (without reimbursement from the other party) have the right at any time and from time to time to construct, install, maintain and repair a permanent or temporary paved access driveway, pedestrian trail and appurtenant improvements over and upon the Access Easement. Prior to commencement of construction of any such improvements, the constructing party shall have received the written approval of the plans for such improvements from the other party, which approval shall not be unreasonably withheld or delayed, as well as final approval by the City of Fort Collins ("City") of the plans for such construction, and any building and other permits required by the City. All work performed on any of the driveway and appurtenant improvements shall be performed by the constructing party in a good and workmanlike manner, and B C1P 738197 v3 1018182-021001 220/2007 in accordance with the approved plans and all applicable laws, rules, orders and regulations of the City and other applicable governmental authorities, if any. Declarants agree that an owner performing any construction of improvements contemplated by this Declaration shall have a temporary non-exclusive construction easement (the "Construction Easement") over and across those portions of the other owner's property which are adjacent to the Access Easement as are reasonably necessary to permit the owner performing the work to construct such improvements (the "Construction Easement Area"). The use of the Construction Easement Area by the owner constructing the driveway improvements and its use of the Construction Easement shall not materially interfere with the rights of the other owner relating to such other owner's use and development of its property, and the two owners hereby agree to cooperate in the scheduling and completion of such work to minimize any inconvenience such work may cause. Upon substantial completion of the driveway improvements, including, but not limited to, the approval of such construction by the City, if applicable, the owner performing such work shall restore those portions of the Construction Easement Area which are not part of the improved Access Easement to substantially the same condition they were in on the date the construction was started. This Construction Easement shall terminate automatically and shall be of no further force and effect upon the completion of the driveway improvements and the final restoration of the Construction Easement Area. Neither the owner of the Executive Park Property nor the owner of the FRRC Property shall at any time install, construct, maintain, operate or place any improvements or other obstructions upon any portion of the Access Easement which would materially obstruct or interfere with the use of same by Declarants or their respective successors and assigns. 2. The easements hereby created and conveyed shall be for the mutual benefit of Declarants, and their respective successors, legal representatives, assigns, employees, tenants, subtenants, licensees, guests, business invitees or any other person having an interest in the Executive Park Property or the FRRC Property, respectively. 3. The owner of each property and each owner's respective successors and assigns, shall secure and maintain general public liability insurance, including insurance from claims against personal injury, death or property damage occurring in, or on or about the Access Easement, at the sole cost and expense of such owner. Each owner granted an easement herein ("Indemnifying Owner") shall indemnify, defend and hold the other owner and its officers, directors, members, managers, successors and assigns ("Protected Owner") harmless from and against any and all claims, suits, demands, actions, judgments, damages, liens, losses, costs and expenses, including, without limitation, reasonable attorneys' fees and court costs, suffered or incurred by the Protected Owner as a result of or in connection with the use, improvement or maintenance of the easements granted herein by the Indemnifying Owner and its contractors, agents, employees, servants, customers, guests, tenants, licensees or invitees, during the period of such Indemnifying Owner's ownership of its property (it being the intent of the parties that an Indemnifying Owner shall have liability under this indemnification only with respect to events occurring during such party's ownership of a property). The foregoing indemnity shall not apply to the extent that any such claims, suits, demands, actions, judgments, liens, damages, losses, costs or expenses are the result of the negligence or intentional misconduct of the Protected Owner, its contractors, 2 B C.7P 738197 v3 1018182-021001 2/20/2007 agents, employees, servants, customers, guests, tenants, licensees or invitees. 4. Until such time as certificates of occupancy have been issued with respect to the improvements located on both the Executive Park Property and the FRRC Property, the owner of either such property shall have the right to install improvements for the purpose of use and enjoyment of the easements herein granted (as set forth in paragraph 1, above), and the installing owner shall have the duty and obligation, at its sole cost and expense, to repair and maintain all improvements constructed and installed within the Access Easement in such a manner as is reasonably necessary and appropriate for the proper use of vehicular and pedestrian ingress, egress and access within, over and across the Access Easement. Such repair and maintenance shall be completed in a commercially reasonable manner as determined by that owner from time to time. Such repair and maintenance shall include, but is not necessarily limited to, the following: general maintenance, repairs, replacements, resurfacing, repainting, repaving, restriping, cleaning, sweeping, snow removal, directional signs and other markers and bumpers, and provision for personnel or independent contractors to implement the foregoing services. Following the issuance of certificates of occupancy with respect to improvements located on both the Executive Park Property and the FRRC Property, the owner of the Executive Park Property shall thereafter repair and maintain the West Easement at its sole cost and expense, and the owner of the FRRC Property shall thereafter repair and maintain the East Easement at its sole cost and expense. If the owner of the Executive Park Property shall fail to properly maintain the West Easement as hereinabove provided, the owner of the FRRC Property shall have the right, but not the obligation, to maintain and repair the West Easement upon fifteen (15) days prior written notice to the owner of the Executive Park Property of its intention to do so. Thereupon, the owner of the FRRC Property may expend such monies as may be required to properly maintain the West Easement, and the owner of the Executive Park Property shall, within fifteen (15) days after receipt of notice from the owner of the FRRC Property, reimburse the owner of the FRRC Property for the expenses actually incurred in connection with such activities. If the owner of the FRRC Property shall fail to properly maintain the East Easement as hereinabove provided, the owner of the Executive Park Property shall have the right, but not the obligation, to maintain and repair the East Easement upon fifteen (15) days prior written notice to the owner of the FRRC Property of its intention to do so. Thereupon, the owner of the Executive Park Property may expend such monies as may be required to properly maintain the East Easement, and the owner of the FRRC Property shall, within fifteen (15) days after receipt of notice from the owner of the Executive Park Property, reimburse the owner of the Executive Park Property for the expenses actually incurred in connection with such activities. Without limiting the availability of any other remedy provided at law or in equity, or by this Declaration, in the event of failure of any party to pay any reimbursement hereunder when due, the owner of the other property shall be entitled to a lien against the property of the nonpaying owner to secure payment of such amount, which lien may be evidenced, at the non -defaulting owner's election, by notice of hen setting forth the amount due and rate of interest accruing thereon, which lien may be recorded in the real property records of Larimer County, Colorado, until such lien is 3 B CJP 738197 v3 1018182-021001 2/20/2007 paid and discharged, and which lien may be foreclosed in the same manner as a real estate mortgage under Colorado law. 5. Notwithstanding any other provisions herein to the contrary, the owner of each respective property shall be responsible for and shall hold the other owner harmless from any costs or damages to and expense for repair of the Access Easement caused by extraordinary use thereof by such owner (including, without limitation, use of the Access Easement for ingress and egress for construction equipment or similar heavy use) and any damage to the driveway improvements caused by the negligence or willful acts of such owner, its guests or business invitees. 6. Each of the parties shall keep the Access Easement free and clear of any prior liens or encumbrances, or any mechanics or materialmen liens, resulting from the activities of such party. Each of the owners of the Executive Park Property and the FRRC Property agree to pay or cause to be paid directly to the appropriate taxing authorities, prior to delinquency, all real property taxes and assessments which are levied against their respective properties. 7. The easements hereby created and conveyed are non-exclusive and shall furthermore be subject to the rights of any pre-existing grants of easements appearing of record in the Larimer County, Colorado real estate records. Furthermore, in the event the City requires any easement in favor of the City to confirm such access, or emergency access or similar right, the parties shall cooperate as reasonably necessary to grant such additional easements as may be required by the City, but this Declaration shall nevertheless remain in full force and effect as between Declarants, and their respective successors and assigns. 8. The easements hereby created and conveyed may be amended, vacated, released, abandoned or terminated in whole or in part by instrument executed by the then owners of the Executive Park Property and the FRRC Property, together with the holders of any first mortgages encumbering any portions of said properties. Any such instrument must be recorded in the Office of the Clerk and Recorder of Latimer County, Colorado, to be effective, valid and binding. 9. Any notice or other communication given by either party to the other relating to this Agreement shall be in writing, and shall be delivered in person, sent by certified mail, return receipt requested, or sent by reputable overnight courier, to such other party at the respective addresses set forth below (or at such other address as may be designated from time to time by written notice given in the manner provided herein). Such notice shall, if hand delivered or personally served, be effective immediately upon receipt. If sent by certified mail, return receipt requested, such notice shall be deemed given on the third business day following deposit in the United States mail, postage prepaid and properly addressed; and if delivered by overnight courier, shall be deemed effective on the first business day following deposit with such courier: If to Executive Park, to: Harmony Executive Park LLC 114 North Mason Street, Suite 4 Fort Collins, Colorado 80524 4 B CJP 738197 v3 1018182-021001 2/20/2007 If to FRCC, to: Front Range Retail Company, L.L.C. c/o Bayer Properties, L.L.C. 2222 Arlington Avenue Birmingham, Alabama 35205 10. This Declaration shall be governed by and construed in accordance with the laws of the State of Colorado. 11. Nothing in this Declaration shall be construed to make the parties hereto partners or joint venturers or to render either of said parties liable for the debts or obligations of the other party. 12. To the extent necessary to give effect to the terms hereof, and the declaration and dedication herein made, this Declaration shall constitute a covenant against the Executive Park Property and the FRRC Property, and the Executive Park Property and the FRRC Property shall hereafter be held, sold, conveyed, transferred, leased, subleased or occupied subject to the terms, conditions, covenants or limitations set forth herein, which shall run with said properties, and be binding upon all parties who have any right, title or interest in said properties, or any portion thereof. 13. The terms and provisions contained in this Declaration of Joint Access Easement shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns. IN WITNESS WHEREOF, the parties hereto have executed this Declaration of Joint Access Easement as of the day and year first above written. HARMONY EXECUTIVE PARK LLC, a Colorado Limited Liability Company B. pans, Manag r FRONT RANGE RETAIL COMPANY, L.L.C., a Delaware Limited Liability Company M. B CJP 738197 v3 1018182-021001 2/20/2007 STATE OF COLORADO ) ) ss. COUNTY OF LARIMER ) ZThe foregoing instrument was acknowledged before me this o7/ 10 day of � 2007, by Gino Campana as Manager of HARMONY EXECUTIVE PARK LLC, a Colorad united Liability Company. WITNESS my hand and official seal. My commission expires: STATE OF ) ) ss. COUNTY OF ) 114A-14A , .23, ao/o p / The foregoing instrument was acknowledged before me this 2007, by as RANGE RETAIL COMPANY, L.L.C., a Delaware Limited Liability Company. WITNESS my hand and official seal. My commission expires: Notary Public 6 B CJP 738197 v3 1018182-021001 2n0/2007 day of of FRONT RATIFICATION (Lender — FRRC Property) The undersigned, having a security interest in or lien upon all or any part of the real property described on Exhibit'B" attached hereto and incorporated herein by reference, hereby approves, ratifies, confirms, and consents to the foregoing Declaration of Joint Access Easement. IN WITNESS WHEREOF, the undersigned has caused its name to be hereunto subscribed by its this day of 2007. WACHOVIA BANK, a National Association STATE OF COLORADO ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this 2007, by National Association. WITNESS my hand and official seal. My commission expires: Notary Public day of of WACHOVIA BANK, a B CJP 738197 v3 1019182-021001 2/20/2007