HomeMy WebLinkAboutLand Use Case.CU.700 Sneaky Ln.A83-95GOLDSBURY CARETAKER DWELLING UNIT
2735-122-01-006 �N A83-95
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CASELOAD SUMMARY SHEET
City of Aspen
DATE RECEIVED: 6 /19/95 PARCEL ID AND CASE NO.
DATE COMPLETE: 2735-122-01-006 A 9,�95
STAFF MEMBER: LL
PROJECT NAME: GOLDSBURY kDU
Project Address: 700 S AKY LANE
Legal Address: LOT A, BEN DEANE LOT SPLIT
APPLICANT: KIT GOLDSBURY
Applicant Address: 200 CONCORDE PLAZA, SAN ANTONIO, TX 78216
REPRESENTATIVE: FINHOLM ARCHITECTS 925-5713
Representative Address/Phone: 111-L AABC
Aspen, CO 81611
--------------------------------------------------------------
--------------------------------------------------------------
FEES: PLANNING $ 425 # APPS RECEIVED 6
ENGINEER $ # PLATS RECEIVED 6
HOUSING $
ENV. HEALTH $
TOTAL $ 425
TYPE OF APPLICATION: STAFF APPROVAL: 1 STEP. XX 2 STEP:
P&Z Meeting Date. PUBLIC HEARING: YES NO
VESTED RIGHTS: Y NO
CC Meeting Date
PUBLIC HEARING:
YES NO
VESTED RIGHTS:
YES NO
DRC Meeting Date
REFERRALS:
City Attorney
Parks Dept.
School District
City Engineer
Bldg Inspector
Rocky Mtn NatGas
Housing Dir.
Fire Marshal
CDOT
Aspen Water
Holy Cross
Clean Air Board
City Electric
Mtn. Bell
Open Space Board
Envir.Hlth.
ACSD
Other
Zoning
Energy Center
Other
DATE REFERRED:
INITIALS: ��'
DUE: r
----------------------------------------=-----------------------
I�'
FINAL ROUTING:
DATE ROUTE
INITIAL:
City Atty City
Engineer Zoning
Env. Health
Housing Open
Space Other:
FILE STATUS AND LOCATION:
LJ
MEMORANDUM
TO: Stephen Kanipe, Chief Building Official
FROM: ' Stan Clauson, Community Development Director
DATE: June 20, 1996
RE: Goldsbury Accessory Dwelling Unit Conditional Use
Insubstantial Amendment of Development Order
71
ASPEN • PITKIN
COMMUNITY DEVELOPMENT DEPARTMENT
The architectural plans submitted to the Building Department for the Goldsbury residence
included an accessory dwelling unit (ADU) having over 800 s.f. of net livable area. The
unit exceeded both the general provisions for ADU's (300-700 s.f.) and the conditions
(516 s.f. located within a bedroom -wing of the house) approved via Resolution 95-22.
The applicant has revised the ADU plan to comply with the Land Use Regulations and
the intent of the approved conditional use. The redesigned ADU contains 695 s.f. of net
livable area and is located within the garage -wing of the residence.
Having reviewed the proposed changes, the Community Development Director finds the
proposal to be an Insubstantial Amendment to an approved Development Order for a
conditional use, pursuant to Section 26.60.080, Amendment of development order:
1. The change will not cause negative impacts on pedestrian and vehicular traffic
circulation, parking or noise; and
2. The change will not substantially affect the tourist or local orientation of the
conditional use; and
3. The change will not affect the character of the neighborhood in which the use
is located; and
4. The change will not substantially alter the use',s employee base or the retail
square footage in the structure (not applicable); and
5. The change will not substantially alter the external visual appearance of the
building or its site.
The processing of the building permit application, -including the approved changes, for
the Goldsbury residence at 700 Sneaky Lane, City of Aspen, shall proceed pursuant
Section 26.52.070, Certificate of compliance and building permit issuance.
APPROVED
AN 21. 1996
Stan Clauson, Comm pity Development Director
COMMUNITY DEVELC,`AIENT DIRECTOR
CITYOFASPEN
130 SOUTH GALENA STREET • ASPEN, COLORALa 81611-1975 • PHONE 970.920.5090 FAX 970.920.5439
Printed on Recycled Paper
JUN 19 196 00:59AM ASPE0USING OFC P•
M11MORANDO <
TO: Bob Nevins, Community Development Dept.
FROM: Cindy Christensen, Housing Office
DATE: June 19, 1996
RE: Goldsbury ADU Review
Parcel m Wo. 2735-122-01-006
ISSUE: The applicant is requesting to increase the size of the
ADU approved in 1995 and change the location. The size of the
unit still falls within the Code:
Accessory dwelling units shall oontain not leas ton tree hundred (300) square feet of allowable floor
area and not more than seven hundred (700) square feet of allowable floor area. The unit shall be
deed restricted, meeting the housing wAhorfty's guidelines for resident occupied units and shall be
limited to rental periods of not less than six (B) months in duration. Owners of the principal residence
shall have the right to place a qualified employee or employees of his or her choosing in the
accessory dwelling unit.
The applicant states that the proposed accessory dwelling unit is
to consist of approximately 695 net livable square feet and moved
next to the garage.
RECOMMEMATION: The location and size are better than the
original approval, therefore, the Housing Office would recommend
approval of the request.
The kitchen must also be built to the following specifications:
Kit! - For Accessory Dwelling Units and Caretaker Dwelling Units, a minimum of a two -burner
stove with oven, standard sink, and a B-Cubic foot refrigerator plus freezer.
Before the applicant can receive building permit approval, the
applicant must provide to the Housing office a signed and recorded
Deed Restriction, which can be obtained from the Reusing office.
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18
1996
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PERRY & GIRARD ARCM fE(,'fURF ANI) IN"I HUOR I)ESIGN 2815 FFRNUAI l: ST. 110USToN,'1'FXAS 77098
GOLDSSURY RESIDENCE
PROJECT NO. 2195
06-04-96
1-,0 LOT F,A.R. CALCULATIONS
Lot area A - 3.2308 ac. a
Lees area for river =
Area for use for F.A.R. calculations =
Allowable area 50,000 SF
Additional floor area 2 SF/100SF
TOTAL ALLOWABLE F.A.R.
FAR CALCULATIONS
Page 1
140,734.00 SF
16., 406.00 SF
134,328.00 SF
2.0 SQUARE FOOTAGE/F.A.R. CALCULATIONS FOR NEW CONSTRUCTION
Master wing heated area and enclosed Spa
Connector to main house
6 x 10 credit
Main house heated area (1274 + 889 + 1130)
Connector to playroom w/stair
6 x 10 credit
Playroom/bunkroom heated area
Garage/Storage with credit (616-500) + 250
Accessory dwelling unit with credit
(890 - 700) + (350) "
Connector to guest house
6 x 10 credit
Guest house
TOTAL F.A.R. @ NEW CONSTRUCTION
6,600.00 SF
1,687.00 SF
8,287.00 SF
1050.00 SF
150.75
94.00
(60.00)
3293.00
270.00
(60.00)
1496.00
366.00 '
4540.00 1
233.00
(60.00)
973.00
8285.75 SF
m xd" I
TFI, (71 3) 523-8494
FAX (713) 523.8497
OOLDSBURY RESIDENCE
PROJECT NO. 2195
3_0 AREA AT BALCONIES & TERRACES
06-04-96
FAR CALCULATIONS
Page 2
2 balconies at master bedroom (61.67 + 125.4) 187.07
Terrace at living room & kitchen 480.32
Balcony at guest rooms 01 & 12 228.13
Balcony at playroom/bunkroom 145.13
Terrace at guest house (74.25 + 74.25) 148.50
Patio at kitchen/barbecue/entry to connector 53.90
TOTAL AREA BALCONIES & TERACES 1243.05 SF
4_0 GROSS AREA NOT INCLUDING 3.0 ABOVE:
Master bedroom 1049.72 SF
Connector to main house 93.47
SPA dressing/shower/toilet 150.75
Living room 1273.90
Kitchen 889.34
Guest rooms it & 12 1129.76
Playroom/bunkroom 1496.50
Connector to playroom with stair 269.92
Caretaker/garage/storage (890 + 484 + 132) 1506.00
Guest house 973.36
Connector to guest house 232.86
TOTAL GROSS AREA NOT INCLUDING ITEM 3.0 9,065.58 SF
5_0 ALLOWABLE AEA FOR DECKS, BALCONIES TERRACES STAIRS:
8287.00 x 15% =
1243.05
SF
Total area balconies & terraces =
1243.05
SF
6_0 PORCHES UNDERCOVER NOT INCLUDED IN F.A.R.*
Entry porch (94.42 + 28) =
122.42
SF
SPA porch (56.38 + 75 + 4)
135.38
SF
Kitchen back porch (4.0 x 6.5) =
26.00
SF
Guest house porch (50.75 + 50.75) =
101.50
SF
Caretaker porch (revised 06-13-96)
48.24
SF
7_0 CARETAKER ACCESSORY DWELLING UNIT
Living unit (revised 06-13-96) *671.24-SF•
�47
* Per Aspen Municipal Code
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RESOLUTION OF THE ASPEN PLANNING AND ZONING COMMISSION FOR THE
APPROVAL OF A CONDITIONAL USE FOR AN ACCESSORY DWELLING UNIT AT THE
GOLDSBURY RESIDENCE, 700 SNEAKY LANE (LOT A, BEN DEAN LOT SPLIT)
CITY OF ASPEN
Resolution No. 95-
WHEREAS, pursuant to Section 24-5-510 of the Aspen Municipal
Code accessory dwelling units may be approved by the Planning and
Zoning Commission as conditional uses in conformance with the
requirements of said Section; and
WHEREAS, the Planning Office received an application from
Kit Goldsbury for a Conditional Use review to legitimize an
existing 516 s.f. above grade accessory dwelling unit at his
residence; and
WHEREAS, the proposed unit is 100% above grade, therefore
the site is allowed an FAR bonus not to exceed one half of the area
of the accessory dwelling unit pursuant to the definition of Floor
Area "Accessory Dwelling Unit", Section 3-101 of the Aspen Land Use
Code; and
WHEREAS, the Housing Office, City Engineer, and the Planning
Office reviewed the proposal and recommended approval with
conditions; and
WHEREAS, during a public hearing at a regular meeting on
August 8, 1995 the Planning and Zoning Commission approved by a
7-0 vote the Conditional Use review for the above grade existing
accessory dwelling unit with the conditions recommended by the
Planning Office.
NOW, THEREFORE BE IT RESOLVED by the Commission:
That the Conditional Use for a 516 s.f. net livable, above grade
accessory dwelling unit is approved with the following conditions:
1. Prior to issuance of any building permits the applicant shall:
a. verify the net livable square footage of the ADU and the
floor area for the floor area bonus purposes;
b. upon approval of the deed restriction by the Housing
Office, the applicant shall record the deed restriction
with the Pitkin County Clerk and Recorder's Office with
proof of recordation to the Planning Department. The
deed restriction shall state that the accessory unit
meets the housing guidelines for such units, meets the
definition of Resident Occupied Unit, and if rented,
shall be rented for periods of six months or longer; and
C. kitchen plans shall be verified by the Housing Office to
ensure compliance with specifications for kitchens in
•
•
ADUs.
2. The applicant shall agree to join any future improvement
districts which may be formed for the purpose of constructing
improvements in the public right-of-way.
3. The ADU shall be clearly identified as a separate dwelling
unit on Building Permit plans and shall comply with U.B.C.
Chapter 35 sound attenuation requirements.
4. Prior to the issuance of any building permits, a new site plan
indicating on -street parking shall be provided and a drainage
plan that confirms historic run-off shall be maintained on -
site.
5. The applicant shall consult city engineering for design
considerations of development within public right-of-way,
parks department for vegetation species, and shall obtain
permits for any work or development, including landscaping,
within public rights -of -way from city streets department.
6. Prior to the issuance of any building permits, the applicant
shall consult the Aspen Parks Department to review the
condition of the trail easement that was provided at the time
of the lot split.
7. The 24 foot access and utility easement may not be used for
new surface utility needs.
8. All material representations made by the applicant in the
application and during public meetings with the Planning and
Zoning Commission shall be adhered to and considered
conditions of approval, unless otherwise amended by other
conditions.
APPROVED by the Commission at its regular meeting on August 8,
1995.
Attest:
Sharon Carrillo, Deputy City
%-[-7 -4S'
Planning and Zoning commission:
Clerk Clerk�Iq
- 2 -2
MEMORANDUM
TO: Aspen Planning and Zoning Commission
FROM: Leslie Lamont, Deputy Director
RE: Goldsbury Conditional Use Review - Public Hearing
DATE: August 8, 1995
SUMMARY: The applicant seeks to legalize an existing above grade
accessory dwelling unit. Because the unit is above grade the
applicants are eligible for a floor area bonus of 250 square feet
or half the size of the unit whichever is less. The unit is
located within a single family residence. Staff recommends
approval of the conditional use for an accessory dwelling unit with
conditions.
APPLICANT: Kit Goldsbury, represented by Nicole Finholm, Finholm
Architects
LOCATION: 700 Sneaky Lane
ZONING: R-30 PUD
APPLICANT'S REQUEST: To legalize an above grade accessory dwelling
unit that is approximately 516 square feet.
REFERRAL COMMENTS: Please find the referral comments from the
Housing Office and Engineering Department, exhibit A.
STAFF COMMENTS:
Conditional Use Review - Pursuant to Section 24-7-304 the criteria
for a conditional use review are as follows:
A. The conditional use is consistent with the purposes, goals,
objectives and standards of the Aspen Area Comprehensive Plan,
and with the intent of the Zone District in which it is
proposed to be located;
RESPONSE: The existing unit has been occupied for years by an on -
site caretaker of the property. Mr. Goldsbury proposes an
extensive remodel of his home and is required to legalize the
bandit unit before submitting plans for the remodel.
B. The conditional use is consistent and compatible with the
character of the immediate vicinity of the parcel proposed
for development and surrounding land uses, or enhances the
mixture of complimentary uses and activities in the immediate
vicinity of the parcel proposed for development;
RESPONSE: There are several accessory dwelling units in the
neighborhood. The residence is at the dead end of Sneaky Lane and
is extremely private with little impact to surrounding neighbors.
C. The location, size, design and operating characteristics of
the proposed conditional use minimizes adverse effects,
including visual impacts, impacts on pedestrian and vehicular
circulation, parking, trash, service delivery, noise,
vibrations and odor on surrounding properties;
RESPONSE: A private access to the ADU is provided on the side of
the structure. As part of the remodel the front door of,the unit
will be upgraded. The entrance is protected by a covered front
porch.
The kitchen must meet the specifications of the housing guidelines.
D. There are adequate public facilities and services to serve
the conditional use including but not limited to roads,
potable water, sewer, solid waste, parks, police, fire
protection, emergency medical services, hospital and medical
services, drainage systems, and schools;
RESPONSE: No new services are required for the ADU. However,
storm drainage is problematic in this area of town, therefore
historic run-off must be maintained on -site.
E. The applicant commits to supply affordable housing to meet
the incremental need for increased employees generated by the
conditional use; and
RESPONSE: The dwelling unit must be deed restricted for resident
occupancy. The unit is currently occupied by a resident caretaker.
F. The proposed conditional use complies with all additional
standards imposed on it by the Aspen Area Comprehensive Plan
and by all other applicable requirements of this chapter.
RESPONSE: The conditional use is for the legalization of a
caretaker unit for a working resident of Pitkin County.
RECOMMENDATION: Staff recommends approval of the ADU with the
following conditions:
1. Prior to the issuance of any building permits the applicant
shall:
a. verify the net liveable square footage of the ADU and the floor
area for floor area bonus purposes;
b. upon approval of the deed restriction by the Housing Office,
the applicant shall record the deed restriction with the Pitkin
County Clerk and Recorder's Office with proof of recordation to the
2
JUL 18 '95 10: 14AM ASPEN HOUSING OFC
MEMORANDUM
TO: Leslie Lamont, Community Development
FROM: Cindy Christensen, Housing office
DATE: July le, 1995
P.1
EXHIBIT A
RE: Goldsbury conditional Use Review for an ADU
Parcel IQ No. 2735-122-01-006
ISSUE: The applicant is requesting to 516 square foot, one bedroom
accessory dwelling unit, to be located on the main floor of the
principal residence.
EACX(;ROUND: According to Section 5-510 of the Land Use Regulations
for the City of Aspen, an accessory dwelling unit shall contain not
less than 300 square feet of allowable floor area and not more than
700 square feet of allowable floor area. The unit shall be deed
restricted, meeting the Housing AuthorityyIs guidelines for resident
occupied units and shall be limited to rental periods of not less
than six months in duration. Owners of the principal residence
shall have the right to place a qualified employee or employees of
his or her choosing in the accessory dwelling unit.
BA992 0maTION: Staff recommends approval under the following
conditions:
1. An accessory dwelling unit deed restriction be recorded before
building permit approval.
2. The kitchen must meet the following criteria: contain a
minimum of a two -burner st6ve with oven, standard sink, and a
6-cubic foot refrigerator with freezer.
0
Planning Department. The deed restriction shall state that the
accessory unit meets the housing guidelines for such units, meets
the definition of Resident Occupied Unit, and if rented, shall be
rented for periods of six months or longer; and
c . kitchen plans shall be verified by the Housing Office to ensure
compliance with specifications for kitchens in ADUs.
2. The applicant shall agree to join any future improvement
districts which may be formed for the purpose of constructing
improvements in the public right-of-way.
3. The ADU shall be clearly identified as a separate dwelling unit
on building permit plans and shall comply with U.B.C. Chapter 35
sound attenuation requirements.
4. Prior to the issuance of any building permits, a new site plan
indicating on -site parking shall be provided and a drainage plan
that confirms historic run-off shall be maintained on -site.
5. The applicant shall consult city engineering for design
considerations of development within public rights -of -way, parks
department for vegetation species, and shall obtain permits for
any work or development, including landscaping, within public
rights -of -way from city streets department.
6. Prior to the issuance of any building permits, the applicant
shall consult the Aspen Parks Department to review the condition
of the trail easement that was provided at the time of the lot
split.
7. The 24 foot access and utility easement may not be used for new
surface utility needs.
8. All material representations made by the applicant in the
application and during public meetings with the Planning and Zoning
Commission shall be adhered to and considered conditions of
approval, unless otherwise amended by other conditions.
RECOMMENDED MOTION: "I move to approve the conditional use for 700
Sneaky Lane with the conditions as outlined in the Planning Office
memo dated August 8, 1995.11
ATTACHMENTS:
A. Referral Comments
B. Plans
97
r
k
is
MEMORANDUM
To: Leslie Lamont, Planning Office
From: Chuck Roth, Engineering Department C
Date: July 14, 1995
Re: Goldsbury Conditional Use Review for an Accessory Dwelling Unit (ADU)
(700 Sneaky Lane; Lot A, Ben Deane Lot Split)
Having reviewed the above referenced application, the Engineering Department has the following
comments:
I. Previous Approvals - Note that the Declaration of Covenants for the Ben Deane Lot Split in
paragraph 2 on the first page precludes additional units without GMP allotment.
2. Public Trail Easement - Is the Parks Department aware of the trail easement documented in the
Declarations and shown on the plat (Engineering Dept. Dwg No. 828-262)? It appears that the
dimensional and location aspects of the easement are substandard. Since the intent of providing a
trail easement is clear, it is recommended that any further land use approvals granted by the City be
conditioned on upgrading the dimensional and location aspects of the trail easement. The Parks
Department should be consulted for further information, but it is suggested that the 20 feet adjacent
to and outside of the 100-year floodplain is preferable for trail development purposes. Note that the
City Lot 4, Aspen Meadows Subdivision, is adjacent to this parcel. If it is unlikely that the public
will obtain additional easements for a riverside trail on adjacent lots, the applicant could be
requested to offer a trail easement along the southerly lot line in order for the riverside trail to
connect to Sneaky Lane, which carries a public pedestrian easement. Note the time limitation on
the conveyance of a final trail easement which is in paragraph 6 in the Declarations, after which the -
easement becomes void.
3. Site Drainage - One of the considerations of a development application for conditional use is
that there are adequate public facilities to service the use. One public facility that is inadequate is
the City street storm drainage system. The new development plan must provide for no more than
historic flows to leave the site. Any increase to historic storm run-off must be maintained on site.
•
0
4. Parldn - The application does not discuss parking. There is no on -street parking in the area,
therefore the final development plan must indicate parking for all bedrooms including the ADU.
5. Utilities - Any new surface utility needs for pedestals or other equipment must be installed on
an easement provided by the applicant and not in the 24 foot access and utility easement which may
be only intended for underground easements. This will protect 20 foot emergency access width
requirements and snow storage space.
cc: Cris Caruso, George Robinson, Kit Goldsbury, Nicole Piercy Finholm
M95.162
2
lick..
r 962
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1
DEED OF TRUST. ASSIGNMENT OF LEASES AND RENTS.
.:'
SECZ:RffY AGREEMENT AND FI!•fANCi`1G STATEMI.NT
r,
'
STATE 01' COLORADO §
� F:.`Ow ALL Si�N BY THESE PRESENTS:
i 4, e�•
v .
.
' -
COr: NTY OF Pi MN
I ,
:4
TIIAT. PACE FOODS. INC.. a Texas corpcxaL (hereinafter called 'Gra"). having its
San Antonio. Texas 79219. in order to secure
+F
principal office at i7i0 North Pan Am Expressway.
the indebtednessere hereinafter referred to and the pertormance of the obligations.
the pasxnent of
and undertakings of Grantor hcremaltcr described, does berets GRANT.
is
tenants, agreements
�tOP.TGAGE BAR SELL. CONVEY. TRANS FER• ASSIGN and SET OVER to the
called the Trust '} for
j
PUBLIC T?iUSTEE of PITKIN COUNTY. COLORADO (nercinafter
NCNB TEXAS NATIONAL BANK- a national banking �_sxxtation (hereinafter
t
the t.cnefit of
alktil "NCNB Texas having its principal office at WI Main Street. Dallas. Texas 75202. as the
NCNB Texas is called the 'Collateral
1
ullaecral agent (hereinafter r As capacity as collateral agent
TTIE PRU INSURANCE C Y OF
v„
agent") on hchaif of NCNB Texas and
11 officc in the
v-\iERICA (hereinafter cotkcttwly called 'L.enders"1. all ul the real estate situated is the County
`A" hereto and made a part hereof
of Prtkin and State of Colorado described in Exhibit attached
and rights described in items (i) through (z) of this
=•
f
1 the lanj% with (i) the Land and the property
below bang eferred to herein as the 'Real Property" and (ii) the Land and the property
to herein as
paragraph
and n¢hts described in items (i) through (xiii) o[ this paragraph below being referred
other improvements now on or that may to
i'
the "PropertY'). together with (i) all the buildings and
said Land: (III Grantor's interest in all materials. equipment, tortures or other
hereafter placed on n wi
property whatsoever, now or hereafter attached to, utstal:cd in. or used in connection th the
be Crated an said Land• including.
buildings and other improvements now erected or herraftcr to
but not limited to, all heating• plumbing. lighting, water heating, cooking• laundry, refrigerating,
disposals, dishwashers, refrigerators and
m-rating. vc-milating and air conditioning equipment,
lino and equipment (wether owned individually or jointly with others), sprinkler i
range_. u•ility
systems lire extinguishing apparatus and equipment, water tanks, c.tgtncs, mxhittors elevators.
doors. storm windows, awnings,
motors. cabinets, shades, blinds. partitions. window screens, screen
(loot ocrings• and all fixtures, accessary and appurtenances thereto•
d vv
drapes. and rugs another
and all renewals orreplaornrcnts of of substitutions for any of the foregoing all o[ which property
to the freehold and part
:r
and things are hereby declared to be peemanent fixtures and accessions
herein as security for the indebtedness herein mentioned. (iii) Grantors
? `
of the realty codve'yed
in in a'y�asetnents and rights of way now or hereafter used in connection with any of the
egg from said real estate: (iv) Grantor's
€
•
_
f yrc¢uing real estate or as a means of ingress to a
hereafter aogtiired, in and to any streets, ways. alkyl and/or strips and gores of
?
interest. now or
in
said airy 1 thereof. (v) Grantor's interest. now or hereafter acquired in
and materials• now Of
in plants
all minerals. crows. timber• trees, shrubs. [lowers and landscaping
all mineraladjoiinis. im
above the Land: (vi) Grantor's interest now or hereafter acquired.
hercafter located on. corder or
in all development rights associated with the Land. now existing Of hereafter transferred to the
hereafter acquired, in all water and
A •, a
){
Land ;tom other oral property (vii) Grantor's interest. now or
ditch rights, wells and well rights well permits springs and spring rights and
b ,
wane: righs• ditch and
rr. c n*oirs and reservoir rights appurtenant to or historically used in connection with the Land and
federal law to all water, and to use
s
all of C-itntor's rights and interests under applicable state or
in or available from any part of the yvatcr bearing fortnatiory
or consent to use all water, contained
dcrly�rg the Land together with associated casements and rights of way: (viii) Grantor's interest..,
sewer and other services from any
:Ktw or 'Icreafter acquired, in any and all rights to obtain water,
other servuc district: (a) Grantor's interest now or hereafter acquired, in any and
-
,pcciA' district or
all rights and estate& in reversion or rrmaindcr. (z) Grantor's interest. now or hereafter acquired.
or incident to the foregoing:
in all rights, estates. hereditaments, powers and prrvdeges appurtenant
interest, now or hcreaft=r acquired, in and to all good;
(xi) all of Grantor's right, title and
furnishings. artwork. Caturra• furniture chattels cw^ted by Grantor now or hereafter
equipment. fur buildings now erected or
•
attached a a(Tiscd to or used or in or about the building or
he On the Rod Pmp". or otherwise !neared on the Real Pmperty all
'Yi
hereaft.-r to erected ns
of Grantor's right utk and interest now or hereafter acquired, in and to all factures. accessions and
following: ( air) all of Grantor's right. risk and interest,
v
.Ipin;rtenurm of to any the foregoing or
of
in and to all renewals or replacements of of subs titutarts for artythe
now of hereafter acquired.
torce,iint or following: (xiv) an of Grantor's right, title and interest.w or hereafter acquired.:
delivered to said premises and
:Irxi to ::I bunWmR matenals and equipment now or ccrrafter
t, ra
De irywtied therein: (xv) all of Grantor's right. title and intcraw or hereafter
intcndod to
acquirc.i, in and to all occupancy agreements,'cases. rents (including security and other deposits
. cN
w
i
,3
^d r' In.x •t r,t Its undo +xc upan.v +¢rc: r..crrs ane 'c rc. I teI'M ^+s •• w or at inv time
r . if 1: 1, -c ring i-i + I ^.c !:+.• 1'r .,. .I held by or b:r 9.•• ^,•n,' I of Grantors.
`+,ntsrs.
.. .. is%ties. ;r'+(.:• .:•. c,•;..i ,ncomt- r i,rnftir% •t whatcccr navirC
, , „ r. ir•, non snit I'-c ht•.tl !•' !r r v. , ,•.1, ill ,+1 nit,•+ s r .hI vile and interest.
-rc•,f in -inn :,• ..i vwn, .•n dcl••. •,% wL„ h („ color n.t. Icc!: r:•,lu,rcd to twc
+
^,y ; r, Ile utility +lln respcct to uti'.:., u'r%i,es IL iuhed to the Real Property:
'
• u•r s right. :rile .,nd interest. row -r •r•—c dwr . uired, in and ui :ill rrrrnits,
• tn,.•s.:uln,ri:c. r, Itai;: I" ,ind ecrvements reli ••ih „+ ir;r lowk!-,ing, and Al I•ther rights and
/rn•;,:cs ,.ht:wicd :n.-nn`nccw,n +i,h ;tic Real I'r lrif,. i%,tit I •,II •I Grantor's right. title ar:1
r .atc•rest, new rr bcrcafic- acquired. in tm.l to ill plans. .(ruliCanotu, m.:ps, su•vcss, reports.
vcrmr•g :,nJ m:,nagcment contracts. .,rchit. clut.,l, enemcerine. construct,or and development
!r.ic:s. !.yoke :I accoint, :nsuranc:• f+ •,,,u:r.xs, warranties and ,nhct documents, of
tA'.%.
sit.rc,cr kind or cherae•cr. relating W thrwnrnhin. onstrurtien up,n, txcut,anLy, leasing,
.Ile or oncr.ttrin el the Real Pr,,rxrt%: ('vxi all ! rir.,r.tor's right, title ,Ind interest, now or
re.li cr a.: trial. in Ind to ail oil. lr:t. ,ind other h%d--irl„)ns and other minerals rroduccd from
.,r :Ili,•, ated to :he Reel Prop rty and all pnxficts pro cs.scd or ohtained therefrom. the proceeds
thcrvot. and .,II icc wras and gcner.0 !n!.tntil•hs under which such pr(weeds may arise, (Ion) all of
Grantor's right, title r,nd to+crest. non et hereafter acquired. in and it) all proceeds from the taking
>-
ar.% of the Real Property or .ins !s ripp-ricnant thereto by riQhl o; cmmcnl d,-main or by
r:rnaic or oihcr pt.rchaw ,n lieu thc•rc•oi ;xxn all of (;r.mtor's right, title and uncrest. now or
hcrc.ifter aequirH. in .Ind v) all p.occeds including premium refund%) of each r+ licy it( insurance
-elating to ;,we Rcal Property. Itxni ill ti t:trantor's rigano(itht, title Ind interest. now (it hereafter
.icouircd, in and ill at! g•aarantees. surc•lie� and other iercements assuring performance of any
rhLgatinn of any tcn:uit of the Rc.J Pr.+!xlts, .inJ Ixxiii) ,tit of (;rant,v's right, title ;cod imcrat.
cow or hcrc:tfte: icgv rcd. in and to 1;1 pitxccds arising from or by virtue of the sale, (case or
;other disposition of 'he Real Property and .11I pnv:cc- and products of t!:c Pr••perty. To have and
hold the Property with all and singular Ihd privileges, heredw-menta end appurtenances thereto
hclonK;rig unto the l,usicc and to kis success:irs and assigns forever. And (;ranter hereby grant
'o Collateral Agent a security interest and lice in •.irantors right. title and Interest in and to all
,
present and future Property in order to set urc th_ payment of the indebtedness hereinafter referred
to and the performance of the obligmions, covenants, agreements and undertakings hereinafter
t/t�tr
described.
AR'l V LE !.
!
Secured Indebtedness
`
11. Secured Indebtedness. This Deed of Trust. Assignment of teases andent.
I
Security A^.rcement and Financing Statemeht (hercioafter :ailed this -Deed of Trust') is made to
secure and enforce the payment of the following notct, agreement, documents. ohligati9ns,
indebtedness and Iiaoilitic.: (a) one certain note agreement of even date herewith by and between
The Prudential Insurance Company of America, as purchaser (hereinafter called "ante Prudentia'),
and Grantor as seller, (hcreinaticr said purchase agreement is called the •Prudentia! Note
N=ement•), whe:ebv The Prudential. sublcct to the to ins and conditions therein set forth, has
Itretd to purchaw these certain promisson notes of even date herewith in the original aggregate
principal amounr of Forty Five Million and no/IOO Dollars (S45,000,p(.000) executed by Grantor
j and payable to the .)rder of The Prudent al, with interest at the rates therein provided, both
principal and interest F)eing payable as therein provided and containing provisions for the payment
of attorneys' fees, as modified. renewed or �xtended from time to time, and all other notes given
in substitution therefor or in modification, arrangement, increase, renewal or extension thereof,
in whole or in part, said notes and all otherttes given in substitution therefor or in mo difiution,
rearrangement, increase, renewal or cxtens!an thereof, in whole nr in part (hereinafter called the
'Prudential Notes'): (b) one certain Irian a¢ cement of even date herewith by and between NCNB
yt,.
Texas, as lender, and Grantor, as herrower1(hcrcinafter called the 'Wan A¢rcement•), consisting
�.
of a term note in the principal amount of Ten Millrsn and no/lOCi Dollars (SIO.000.000.00),
executed by Grantor and pavable to the order of 14CNB Texas, with interest at the rates therein
T�r.
I.. !h p•:n:.iral and interest being � ayable as therein pro %ided, as modirted, renewed, or
C•trndcd from time to time thereinafter caliied i is 'rr_rm Vote'). and a revolving nc•tc, .hereby
NCNB Texas, subject ',I the terms and condixtions ;hc•rctn set forth. has abreed to make 'advanccs
to Borrower in the aggregate amount not t e.ced at an} time Ten Million and n,: 1f 0 Dollars
(Sii)OX)SX110.I10)• with interest at the rates)I therein provided, both principal and interest being
p,iyahle as !herein provided, as modified. renewed or c-tcnded from time to time (hereinafter called
t,
I
;•3i
!.i
r;
2
ik
2
0 �� n
i ncicmatter the P.-den' &I N01cz -he I"erm Nt-te. and the Revaluing Note
Ir
and !jdCbjcdne-,% .1ril 1,1-.4mi,incurred ur arising
!0 +,I this bved 'It 17.11t. r other Sm-uri:%. V--.umcrts m defined in the
J -
d N—c Ac-ec-ncr., and the lion\Z71',,,n-,nt :hereinafter , a.lt-the Sec,int% Documcnis"),
n. :net r, :..tine to the j—.. �c cubed andchtWness or tnv other instrument now
--cment
Coverning, c,:,,r:'-Ig ,I ihcrwtsc relating it, the above described
(I, inv T, it, thereof %hetrict ,!vhLs. .,hhvations or habditivs be d4rect or indirect.
'IT %Ccondirv. joint or several. I'Lxcd Or Lontincent. and %ht:;hcr orit!inally payable to
i or to ., !`,ird party and %uh,.equentiv i.quired by 1,criders ind whether such dehis.
-!I:.v:r,r.s and iia!�i!mcs are evidenced by m te. i)pcn tccount, o%etdtalt, endorsement, surety
.,,r,:cm.cnt. gt,,ii.iniv or -th,-rwisc. The Indebtedness, relerred to in this Paracraph 1. L is hetcinaftet
4.
-t1rn,-% . ii!,j the 'Fccurcd I dcbJtLt!!1cx�s'- This Deed of 'rrust and the Notes. ohs. Prudential
'!I,: IA,an Agreement. and - ,iher Sc rricurov Docuvni.s. executed of even date
th omens (;raptor and 1,cndcr< .,r 1-ct,xcen Grantor and Ihc Prudential or bctwceA Grahtor
I M \B rc%.Lv. ird all other insit orrients. cettitimales. ifl-ld wts or documents evidencing.
se, urwi:. g-..ir ti!cc.ni. or ocl tire to, t!tc Sec-,rcd IndO iLdnrio. a-c hereinafter called
'Lin.incify I hc rre[ytt'. (chain 'rights III Lenders in re%-4-CL �l the Financing Documents are
r.
—%crned bt, the terins of an ln,crtrcclitor Aercement, of oven date hcrcw.-.h. between The
l—:.1,:n:i.i I and V '.H echo bete I filiit,r :.i I lcd the IAM;�-CC Q,.'
AWIFICLE It.
F.c-)�cwn�at ions and Warranues
2.1. R!��)tgscntations and �.:iirintics. Grantor represents arid warrants; to the Ti-twe
zs�
. _—.
t,
— I
.Ind the Len('ers a., lollows:
I. I
1:
(a) Title and Authority. Grantor is the lawf I owner of good and indefeasible
fce %i.T1plc title to the Real Property subject only to the matters described in Exhibit
attached hereto and made a p6rt hereof (the 'Permitted Encumbrances") anti has good right
and aw.honty to grant, bargain• sell, minsfer, assign and mortgage the Real Property and
.
to grant a ;c curity interest in the personal property constituting a portion of the Property.
(M Corroiiancc % instruction, occupancy.
b-.h CovenAnu and Lais. T'he c(
operation and use cf the Property and :he intended use thereof by Grantor complies with
all le.ws, stitu!cs ordinanc--, rules. regulations. orders and determinations of any
goAcirnri-critai authority and arty Iviard of fire --inder*-titers (or at:y bMv exercising similar
funct I(: ris I and any restrictive 40ve na r Ls or deed restrictions (whether recorded or otherwise),
N.
including. without limitation. oil applicable zoning, sul[-Jiv�sion. plattii�g. licensing, building,
"
flood disaster, health and environmental laws, statutes, ordinances, rulc;, regulation--, ciders
nit cictti-mirviins of any govi--mmental authority (hereinafter sometimes collectively called
1,.g IE.11)le Laws*), except where the failure to so comply could rot have amatcria! adverse
effect on (i) the consolidated financial condition or pionect.5 of Grantor and any of its
subsidiaries taken as a whole, (ii) the value of the Prep" and the reil property described
in 1--xhihit -C- attached hereto and made a part hrro:)f for all purposes. tken as a whole.
f
or rii) the aliclity or eifcirccahllity of this Deed of Trust or the, Jens and security interests
hereunder (hereinafter collectively r-s!lcd 'Material Adverse Effect"): Grantor has
granted
obtained all requisite zoning. u6ity buildint health. operating and (X:Cupancv pet nits from
the governmental authorities hating jurisdiction mcr the Property, except where the failure tl
to obtain such caning and permits would not have Ti Material Adverse Effect.
(c) Nc Suits. Except for Civil Action case No. 3448 listed as item number 9
on Exhibit *B' attached hereto, there are no judicial or ;administrative actions, suits or
proceedings pending or. to the best of Grantor's knowledge threatened, affecting the
Property which, if adversely determined• would be reasonably likely ;o have a Material
Adverse Effect. or involving the validity, enforccanility or priority .3f Deed of Trust.
(d) Condition of Propgrty. The Real Property is served by electric. gas, storm
and %.initar, %cwvrs unitary water qupplv. telephone and other .1tiliiies required for the
Grantor's current use thereof on the date hereof at or within the boundary lines of the
Real Prore.-.v. AJI streets. altley% and casements (including without limitation casements for
M
-Igress a:- I ce•rm. cavrmcnts '.,r kvnt, ,tar iatTic and parking c,tscmcnls yor utilities, and
.•..srr.rntc ' r "t r, r: , .r ...c. - . •;• u•. ••, torte Grar:or's current usr of the Real Property
-rir• ,ct-n •,r-•'• •:. .red art- t. ct• cis. and casements have been
lcdl...rted wJ ., : ,',I ep ! ., ,c t• '•,'rnr. •• .d cnim s and ••r all ,igicements creating
..n ,.u:•m�^na F,oc• tx•rn ti ;.c,.r.1 •n ::c real potperv, of Pitkin County.
...r,r.io lie aril Fn,pct.It :� f, rc- is, •n+^Iv good cnnelitit:n tnd repair and proper
rdr•r. "rid a tree Iron: l.,rt,.,cc _w%•d 1,% fire ur ,thcr casualty Grantor has no
km'xiidic .•, tin I item ,r i,atent ttru• Ivr.tl or other significant Ilcfeet (ir deficiency
:n I`le R t' Pr:,;xrn thm ri),,IiI. ;Id maict:.ul:.utd .idier%ely ,utect Grantor's intended use
.4 the Re tl P:!`pc'rty of rlil p:t%e 1 Fffecl. None of ties R'el Property
is wrh.n .t Il,..xl plain. ccccpt as d!. Io ed ,n I,.c •.ury,-v of the Land delivered to the
('oll.tcrd Aeent. Nonc of the Impro%cmrnts on :hc Rcal Propctty cr,--jte an rncroachinent
,ver. ,, or upon .en% of the Rc.d Proper.v h•wridan lines. riehts of way •,r easements.
.Ind no huddings or, other tmpro%cr ents on adjoining land create such an encroachment.
c.cct•t as dttrloscd on the ur%ey ••I' the Lan! delivered to Colimcral Agent. There is, to
:he actual knowledge of Grantor. ;tn condcmnatior. prixecding pending or mv.-atened that
would effect ;hc Reel Propert%.
1 f
eel ty_I;r:mty. Grantor wl!I warrant and forever defend the title to the Rttal�t
Property azatnst the clams of all ,x:rc,1rLs whomsoc%cr claimmc or to claim the same or any
part thereat. sa,h)ec1 to the Permitta_d Fncumhranccs.
% ? Covenants and Ar yrecmcnts. Su lone as the Secured Indebtedness or any part
1XIreof remains unpaid. Grantor covenants and agrees %kith the Lenders as follows:
/ f a) ices on Lice].
In the event of the enactment after the date hereof of any law of the State of
Colorado or of any other governmental entity deducting from the value of property for the
puM,%c of :axatoon any lien security interest thereon, or impcxing upon the Trustee, the
Collateral Agent or either LLcr the payment of the whole or any part of the taxes (other
th-n taxes imposed on the overall income of Lenders) or assessments or charges or liens
herein required to he raid by Grantor, of changing in any way the laws relating to the
taxation of deeds of trust or mortgages or security agreements or debts secured by deeds
of trust or mortgages or security agreements or the interest of the trustee or heneftciary or
mortgagee or secured party in the property covered thereby, or the manner of collation
of such taxes, so as to affect this Deed of Trust or any 4 the Secured indebtedness or the
Trustee, the Collateral Agent or either Lender, that, and in any such event. Grantor, upon
demand by the Trustee. thc, Collateral Agent or either Under, sha!I to the extent not
prohibited by Applicable Law, pay such tares, assessments, ch-trecs or liens, or reimburse
the Trustee, the Collateral Agent or such Lender therefor.
(b) Ad Valnrem uuc-;. Grantor will cause tb t c paid prior to delinquency all
t.ixes and assessments �eretofFirc or hereafter levied or assessed against the Property. or any
pan `hereof, and will furnish the Collateral Agent with receipts showing payment of iuch
taxes and assessments at least 111 days prior to the applicable delinquency date therefor:
except that Grantor in good faith may contest, by appropriate proceedings, the validity,
applicability or amount of any asserted tax or assessment, and, pending such contest, Grantor
shall not he deemed in Default hereurxlcr if. prior to delinquency of the asserted tax or
assessment. Grantor establishes an escrow, or provides security reasonably acceptable to the
Collateral Agent, or reserves have been estah:ished in accordance with GAAP (as defined
in the Lt)an Agreement), adequate to cover the payment of such tax or assessment with
costs, interest and penalties and a resonably additional sum to cover possible costs, interest
and penalties (wnich escrow and'or security shall be returned to Grantor upor, payment of
all such taxes, assessments, costs, ;nterest and penalties), and if Grantor promptly causes to
be paid any amount adjudged by a court of competent surisdiction-to be du Ith all costs,
interest and penalties thereon. prrmptb: after such judgment becomes fina provided,
however. that in any event each such :o,:test shall be conca.dcd and the tar Imcssmcnt,
costs, interest and penalties shall he paid prior to the oate any writ nr order is issuer) under
who h I1-c Re.11 Property ma", he :old.
647
dc1 (,)Mratitm of Pv-per!I. Grantrb ..d' k:rp, ar;d woI cacKe the keeping of, the
Property oc,upied to the ex': r.c:essary n rapsir the Insur.ncc rarric! thereon.
Grantor will not use or J•t•c,tnv . r allow •be us- or :xcunancy of !h- Property in any
^tan-icr wht.h violates any Applicable I.tw. It crept -here the, 6!,ure !.t w oc any would
not have a Material Adverse Effect. which cons w,t . a put•uc •:r p:h.:ec na:%ante or which
makes void. .ridable or canceiable. any insurance tt:ett in fore wab resp-mt thereto.
Grantor will not, without the prior written corucnr of t r,llatera: Agent, initiate or pernuit
anv inning rrcla_mitication of the Pmncrty or %cck anv variance :Jndcr existing toning
.,rdtnances applicable to the Property or use or pt•rrtit the use of the Property to such a
manner as would result in such use becoming a nonconforming use under applicable coning
ordin;mites or other Applicable Laws. CJrantor will not, without the prior written :onseat
of Collateral Ageni. impose anv restricu:e cosrnants or cncunthrances upon the Proferty
which does not constitute a Permitted Encumbrance. execute or file any subdivision plat
atfectirit the Property or consent tp the annexation of the Property to any municipaoty.
Grantor shall not cause or permit ahy drilling or exploration for. or extrttion, removal or
production of, minerals from the surface or subsurface of the Property. Grantor will not
do or suffer to be done any act whereby the value of the Property materially may be
lessened. If Grantor rc;wives a written notice or claim from any federal, state or other
gtwernmental eneity pertaining to the Pt.operty, including specifically but without limitation
a notice that the Property is not in coin: ante with any Applicable Law. Grantor promptly
will furnish t copy of such notice or claim to the Collateral Agent.
(d) Cxbts for Construction. Grantor will cause all debts and liabilities of any
char.:cter, ricludiag without limitation all debts aid liabilities for labor, material and
equipment and ail debts and charges for utilities servicing the Property, incurred in the
construction, maintenance, operation and development of the Property to be paid before
the same become delinquent. Notwithstanding t:: foregoing, Grantor in good fad` may
contest. by appropriate proceedings, the validity, apphcahility or amount of any a ,ted
mechanics' or matenalntut's liens, and, pending such context. Grantor shall not he deefned
in Default hereunder if Grantor provides the Codaterzl Agent with security satisfactory to
the Collateral Agent in its reasrnaljle discretion and if Grantor promptly causes to be paid
any amount adjudged by a court df competent jurisdiction to be due, with all costs and
interest thereon, promptly alter suck judgment becomes final: provided, however, that in arty
event each such contest shall he cincluded and the lien, interest and touts shall be paid,
f' bonded around or otherwise rcfnttd prior to the date any'writ or order is issued under
/ which the Property may he sold.
(e) Repair and Maint n . Grantor will keep the Property reasonably in good
order, repair, operating condition d appearance, causi, . reasonably necessary repairs.
renewals, replacement.%, additions at)d improvements prong../ to be made, and will not allow
any of the Property to be misused, abused or wasted or to deteriorate, normal wear and tear
and casualty excepted. Grantor promptly will' replace zll worn-out or obsolete futures or
personal property covered by this feed of Trust that are necessary in the operation of the
Property with fixtures or personal Oroperty comparable to the replaced fixtures or personal
property when new, and will repitint the Property when needed. Notwithstanding the
foregoing. Grantor will not, without the prior written -anent of Collateral Agent do or
permit to he done anything to the, Property that materially may iml.air its value, including
but not limit- : to (i) removing froth the Property arp fixtures or personal property covered
by this Deed of Trust (but not including any persona; propctty in which Grantor is the
leasee thereof) which are necessa6 c,r desirable in the oitenetion of the Property, except
such as is replaced by Grantor by an article of equal suitability and vale, owned by
Grantor, free and clear of any lien ar security interest (except that created by this Dxd of
Trust or any other Security Docurlient) or such as is permitted to be remsred by a tenant
pursuant to such tenant's lease or (ii) making any structural or othe- alteration to the
Property that materially impairs ,lye value t`tcrcof. Nothing contained herein wt►l prevent
tenanu of the Property from making alterations and improvements expressly permitted
under their Leases. Upon request of the Collateral Agent, Grantor will deliver to Collatcra'
Agent an inventory .Describing and showing the make, model, serial number and location of
all factures and personal prt.pem used in the maintenance and operation of the Property,
with a certification by Grantor that said inventery is a true and complete schedule of r.11
such futures and personal property used in the maintenance and operation of the Property,
that such items specified in the inventory constitute all of the factures and personal property
•5-
required in the ma.ntrnan( _- anu )pera:,or of the Property. and that all such if,.,rns arc
o%pcd by Giantot tree 3rd dc-" of at.. ,;,urity inte:.st (ccco:pt the ,Crm.,tcd
Encur-.ibr3nc,=,)-
-tv insure 'a - -Bt 1(
-i in or ill I fl: (,pc d, cat loss
;ns !cp the M in c_j[,L�_x�ua7ty
Ls t�. any x)rtior. of the Proprrt�
or damaize by fire. vxpknion. -indst( Ood pnmc
at any time he kycated in an idrni: area in %thi.-h n,
which shall -r Protection ALI (A 1973.
insuranc - h2 , been made iv- lahle pursuant to the
xA Disaster
and then in the amourt of the outstand nic balance it the Notes or the maximum amount
of coverage available. kh.,-hover is leas), turna-to and sich other hazards as rexson3hly may
he required by the (olLiicr,!1 Agent ( ncl-1.11re war damage it available under sportsorship
when n , at is I hrc tcncd or declared) by policies of fire,
of the United Sta-.cs li,,rscrnm�-nt N —
extended coverage ind other tnsu,anc c in su, h company or companies, up ri such terms
and provisions, and with such cndorscmcnt_s, all as remonahly may he acceptable to
Collateral Agent. Grantor lurilier -.hat Grantor will deliver to the Collateral Agent
certified copies of all such policies, rcccil:l-s codertyrig th, ),.,ment ol all premiums and
certificates of insurance addressed to the Co:!itcral,A cent, eviderwine rcn",;1!s of all such
If
j. a
politics of insurance at lean 11 clays before any such insurance shall cxpire, rid othcr-.isc
evidencing compliance with the insurance requiromcrits set forth herein. All insurance
policies required pursuant to ihis suhpara%Zraph (f) shall contain a proh:bition against
L f
cancellation. material endorsement. material alteration or reissuance of such rX.-Ii-N effecting
ccting
a change in coverage thereunder unless such insurer first i;hall have given Collateral Agent
$ 10 days prior written notice thereof. AA fire, extended and other insurance coverage
T, Ji insurance policies required hereunder shall be on a replacement cost hmis in an amount not
I"s than that necessary to comply with any co-insunince percent.1ge stipulated in the policy.
but not less than one hundred percent i loo-�) of the Propi:rtv's insurable value, and shall
be subject to deductibles, if any, not to exceed the lesser of one percent of the face
amount of the policy and $110,00000. Without limiting the discretion of the Collateral
Agent with respect to required endorsements to insurance Policies. Grantor further agrees
that all insurance policies shall provide that proceeds thereunder will be jointly payable to
the the Collateral Agent and Grantor, for the benefit of the Grantor and Lenders as their
interests may appear pursuant -nd subject to a mortgagee clause (without contribution) of
standard farm attached to or otherwise made a part of the applicable Policy. In the event
of foreclosure of this Deed of Trust. or other transfer of title to the Property in t
extinguishment in whole or in part of the Secured Indebtedness. all right, title and interest
of Grantor in and to such policies then in force -onceming the Property and all proceeds
payable thereunder (to (he extent of, but not to exceed. the Secured Indebtedness) shall
o transferee in the event vest in the purchaser at such foreclosure or the Lenders or other trans cvc
of such other transfer of title. In the event any of the Property covered by such insurance
is destroyed ordamaged by fire, explosion, windstorm, hail or by any other casualty against
which insure nee shall have been required hereunder. (i) the Collateral Agent may, but shall
not be oblig/ated to, make proof of loss if not made promptly by Grantor. (ii) each insurance
company concerned is herchy authorized and directed to make payment for such loss jointly
to the Collateral Agent and Grantor. and (iii) the Collateral Agent shall apply the insurance
proceeds as follows:
(A) first, to reimburse the Collateral Agent or the Trustee for all costs
and expenses, including reasonable attorneys' fees, incurred it connection with the
collection of such proceeds; and
(B) second• if a Default shall have occurred hereunder, the remainder
o. said proceeds shall he applied to the payment of the Secured Indebtedness in the
order provided for in the Intcrcreditor Agreement; provided, however, that if there
shall have occurred an event or circumstance which with the passage of time or the
giving of notice, or both, woiuld constitute a Default and iw`tich is susceptible to cure,
the Collateral Agent shall place such insurance proceeds in an account at NCNB
Texas which shall bear interest at the normal interest rate for savings accounts, and
the proceeds in such account will he applied pursuant to Paragraph 2.2(n(iii)(C) if
cure occurs during the grace periods provided for in the Loan Agreement or the
Prudential Note Ait,cemcrit or if such cure olocs not occur, will he applied pursuant
to this Paragraph 2.1(f)(iii)(B); and I
(C) _bird. if n the of the facts described in subparagraph t B) above exist,
the remainder of such pr;ticcjs shall be used !tv Grantor for application to the
repair restuirotion or rcpi.rccmcnt of the Propc-,y so destroved or damaged from
erne to nrnc upon tomplt,irce by Grantor with such terms. con litioru and
re-juirernents as ma.0 c N,- recnah1% imposed by the Collateral Agent .tnd after such
application, any remaining ; rocecds shall be paid to Grantor.
In any evcWthe unpaid ponron of the Secured Inds•btedn4ms shall remain in full force end
effect allot -:irantor shall not ',c excused in the payment th.•.ucf. If any a,:t or occurrence
t andy/kind or nature (rich licit am .asualty on •hich insurance was not obtained or
ohtafnablel shall result in macc•nal Jama¢c to or material loss or destris6on t,I the Property.
Sirantor shall gise imgtediate notice thereof to the Collateral Agent and, unless the
i Collateral Agent elects not to rector:: the Property to its prior condition (pursuant to
subparagraph B of Paragraph 2 _ttl(iii)1 Grantor, at Grantor's sole cost and expense and
regardless of whether the uu.ur.im.e proceeds. if any, shall be sufficient for the purpose.
promptly shall restore, repair. replace and rebuild the Property as nearly as possible to its
value, condition and character immediately prior to such damage, loss or destruction in
accordance with plans and specrGrations submitted to and reasonably and promptly approved
by the Collateral Agent. Grantor hereby irrevocably appoints Collateral Agent
attorney -in fact, with full authtmty in mace and stead of Grantor and in the name of
Grantor or otherwise, after the (% urtecce of any Default and the continuance of same to
o
obtain any insurance required to be obtained pursuant to this Paragraph .7.2(f) and which
is not so obtained and to receive, indorse, and collect any drafts or other instruments.
J documents and chattel paper, in connection therewith. The appointment of Collateral Agent
.is attomey-in-fret is coupled with an interest end is irrevocable prior !o final payment in
full of the Secured Indehtedness.
(g) Liability and Other Insurance 11 Grantor shall maintain comprehensive general
liability insurance against claims for bodily injury or death and property damage occurring
in or upon or resulting ;rom the Propert�, in standard form and with such insurance
company or companies and polity coverage limits and terms as reasonably may be acceptable
to the Collateral Agent, and such other insurance as the Collateral Agent from time to time
reasonably may require, in such companies, upon such tears and provisions, in such
amounts, ar' with such endorsements, all as reasonably are approved by the Collateral
Agent. Gr-. r shall maintain with respect to each policy or agreement evidencing such
comprehensive general liability insurance such endorsements as reasonably may be required
by the Collateral Agent and shall at all times deliver and mairtain with the Collateral
Agent certified copies of all such policies, receipts evidencing the payment of all premiums,
and c:rtificates of insurance addressed to the Collateral Agent, evidencing renewals of all
such policies of insurance at (cast 15 days before any such insurance shall expire, and
otherwise evidencing compliance with the ir-urance requirements set forth herein. All
insurance policies requited purs,saat to this subparagraph (g) shall contain a prohibition
against cancellation. material endorsement. material alteration or reissuance of such polio}
eff.xting a change in coverage thereunder unless such insure first shall have given
collateral Agent 30 days prior written notice thereof. Without limiting the discretion of the
Collateral Agent with respect to required I endorsements to insurance policies, Grantor
further agrees that all insurance politics d6cribcd in this Paragraph 2.2(g) shall name the
Col'ateral Agent, for the henctit of the f_ertdcrs, as an additional insured party.
(h) Cndemnaticn. Promptly upon obtaining actual kcowledgc of the institution
�. of any proceedings for the condemnation of the Property or any portion thereof, or any
! other proceedings arising out of injury or damage to the Property, or any portion thereof,
Grantor will notify Collateral Agent of the �Cndency of such proceedings. The Collateral
Agent may participate : t any such proccedinjgs, and grantor shall from time to time deliver
to Collateral Agent all instruments reasonably requested by it to permit such participation.
Grantor shall, at its expense, diligently prosecute any such proceedings, and shall consult
with Collateral Agent, its attorneys and explerts, and cooperatt wit'a them in the carrying
on or defense of any such proceedings. All procccds of condemnation awards or proceeds
of sale in lieu of condemnation with rtspekt to the Property and all judgments, decrees
and awards for injury or damage to the ProIl rty shall he paid !o the Collateral .Agent and
shall be ap^lied as fellows:
:.V .
11) fvgj, to rccmbur%G Gtarc:::�. '.ol!ateral Agent ur the Trustee for all
•eavunaldr costs end cxprnscs.,.n4:uding rcraet"ble ot.,mevs' fees, inc:rrcd in
uonnecti-•n coil`? urller'.ion cd :ui'h pnr eds.
I i:t :c�oZns�. it) the `A%tl,-nt of ccureo Indebtedness in the order provided
,`tc Intercreditor Agreement, and
(its) third. to the extent cd the balance (if any) Of such proceeds, to Grantor
or thcr party legally entitled thereto.
Grantor herehv assigns and tnnslers a!i such proceeds, judgments. decrees and awards to
Lenders and agrees to exzute such further assignments of all ouch proceeds, judgments.
decrees and awards as Lenders may reasonably request. provided. hov.cver, the disbursement
of such pr(xccds. )udgmcnt_s, decrees and awards shal! be applied as provided above in this
Paragraph 2._(h) fhc Lenders are hereby authorized. in the name of Grantor, to execute
and deliver valid r,quittances for, and to appeal Imm. any such judgment, decree. or aw rd.
Th.:Lenders sh..11 nt,t be., in am• event or circumstances, liable or responsible for failure
collect, or for failure to exercise diligence in the collection of. any such proceeds, iudgments.
decrees and er awards.
(i) Protection. and Defense bf Lien. If the validity or priority of this Deed of
Trust or of any rights, titles. liens nr security interest.% created or evidenced hereby with
respect to the 7toperty or any part thereof shall be endangered or questioned or shall be
attacked directly or indirectly or if 'tny Ilegal proceedings, other than proceedings relating
to any Permitted Encumbrances to the extent such proceedings would not have a material
adverse effect on the validity or priorityiof this Deed of Trust or on any rights, titles, liens
or security, interests created or evidenced hereby with respect to the Property or any part
thereof other than the portion of theIProperty which is the subject of such Permitted
Encumbrances, are instituted against Grantor with respect thereto, Grantor will give prompt
written notice th !reof to the Collateral Agent and at Grantor's own cost and expense
diligently will endeavor to cure any dcfcrt that may he developed or claimed, and will take
all necessary and proper steps for tic d�fensc of such legal proceedings, including but not
limited to the employment of counsel.I the prosecution or defense of litigation and the
re --lease or discharge of all advere claims, and the Trustee and Collatrz! Agent, or either
of them (whether or not named as parties to legal proceedings with respect thereto) are
hereby authorized and empowered to take such additional steps as in their judgment and
discretion reasonably may be necessary or proper for the defense of any such, legal
proceedings or the protection of the validity or priority of this Deed of I t ust and the rights.
titles, liens and security interests created or evidenced hereby, including but not limited to
the employment of wunscl, the prosecution or defense of litigation, the compromise or
discharge of any adverse claims made with respect to the Property, the purchase of any tax
title and the removal of prior liens or security interests which do not corstitute Permitted
Encumbrances, and all reasonable expenses so incurred of every kind and character shall
be a demand obligation owing by Grantor, and the party incurring such expenses shall be
subrogated to all rights of the person receiving such payment.
0) Permitted Encumbrances. Grantor will comply with and will perform all of
the covenants, agreements and obligations imposed upon it or the Property in the Permitted
Encumbrances in accordance with their respective terms and provisions. Grantor will not
modify or permit any modification of any Permitted Encumbrance the result of which would
have a Material Adverse Effect without the prior written consent of Collateral Agent.
(k) Books and Records. Grantor will permit all contracts, statements, invoices, 1
bills and claims for labor, materials and services supplied for the construction and operation
of the improvements forming a F :-t of the Property to be inspected and copied by I
Collateral Agent and its representatives at all times during reasonable business hours.
(Iy C,cajcs. Grantor may not lease or enter into any other occupancy agreement
covering any of the Property without the prior written consent of Grarl -..
(m) Fees and Exnensa: Indemnification. Grantor will pay all appraisal fees, filing
and recording fees, inspection fees. survey fees. tares, brokeratte fees and commissions,
i
K -
Rt:•- � 11� 9
Gr
polieiea of in..u• ,'o-fl4t, gal Ajlent shall have the right to rely upon tax information a
furnkhcd by .,f; c le :a.cnJ authorities i,. the pacmcnt r.f such taxes or assessments and
shall have no .•h, L -:„ n n, mlake any protest of any such taxes or assessments. Any excess
over the amour:.,::•,lmrof ftrr such purpe.a•s shall be held by Collateral Agent for future
use, applw,l to .,rn S.•, utrrl Indebtafncss in accordance with the terms of the Intercreditor !.
Agm-crient or rciu-dcd to G�aanr, at U11ateral ,agent's option; and any deficiency in such .
funds to de,: t-tt d .h.,ll he made up hs G-z;tt.,r u,■n demand of C o!lateral Agent. All such
funds so dcp••sr.cd sh:,11 !ear Inrcrest at the normal interest rate for savings recount deposits
at NCNB Tcvm m,in he mnglcd wnh the general funds of Collateral Agent and shall be
applied by Collateral agent Ito card tot p.ivnicnt of such taxes, asussmerts, charges and
premiums sahcn ,;.atcrttcnts thcrefor arc preccnted to Collateral Agent by Grantor (which
statements; shall he preser,tcd by Grantor to Collateral Agent a reasonable time before the
applicable JML unt 1s ph,s;ded. Lowe cr, that if Collateral Agent has made demand
for payment of all , I the Secured In:!emednecs, such funds may at Collateral Agent's option
he applied to :.,c payment of : c Secured indchtedness it the order determined by
Collateral Agent in accov!adcc w;ih tie terms of the Intercreditor Agreement and that .. :
Collateral AL" nt MA at any time, to its discretion, apply all or any part of such funds r.
toward the payment of any such taxes, assessments• charges or premiums which are past due,
together with any pcn:+Lics or hate chargcs with respect thereto. The conveyance or transfer
of Grantor's antern•st in the Property for any reason (including without limitation the
foreclosure of a sOxird,nate lien or securit) interest or a transfer by operation of law) shall
constitute an .t mar—irncnt of transfer of Grantor's interest in and rights to such funds held
by Collateral :\Lent under this suhparagraph (s) but subject to the rights of Collateral Agent iC
hereunder. 1 Py
( 1) Further %uranecs. Grantor will. on request of Collateral Agent. I 1.
(i) promptly correct any defect• error or omission whist, may be discovered in the contents
of this Deed of Trust or in any other irutrument executed in connection herewith or in the
execution or acknowledgment thtrcof, (it) execute• acknowledge, deliver and record or file
j such further instruments (including without limitation further deeds of trust, security
agrmmenrs. financing statements• continuation statements and assignments of rents or teases) 1 '
and do such further acts as may tx: reasonably necessary or proper to carry out more
/ effectively the purpcises of this Deed of Trutt and such other ins:ruments and to subject to ;
the licris and scrurity interests hereof and thereof any property intended by the terms hereof
and thereof to he covered hetcby and thereby including specifically, but"without limitation,
any renewals, .additions, subltitutiom, replacements, or appurtenances to the Property;
(iii) execute, acknowledge• deiliver• procure and record or file any document or instrument
(including specifically any finoncing statement) deemed advisabte by Collateral Agent to
protect the lien or the security interest hereunder against the rights or interests of third
persons, and Grantor will pay all reasonable costs connected with any of the foregoing;
(iv) use reasonable efforts to cause any tenant under any lease agreement of any of the
Froperty to furnish any instrument or perform any act deemed advisable by Collateral
Agent to protect the lien or the security interest hereunder; and (v) provide such Now
certificates, dtxumrnts. reports, information, affidavits and other instruments and do sech
further acts as may be reasonably necessary or proper in the reasonable determination of
Collates Agent to enable Collateral Agcnt to comply with the requirements or requests
of any agencl h.wng jurisdiction over Collateral Agent or any examiners of such agencies a
with respect to the Secured Indebtedness. Grantor or the Property.
(v) ('r.il Action Case No. tit-tf{. Grantor will (i) promptly give Collateral Agent
notice of any judgment rend&ed in. or settlement resolving, Civil Action Case No. 3448, +
described on Exhibit B, Item 9, attached hereto (the 'Civil Action"); (ii) promptly deliver
to Collateral Aeent a revised survey of the Land reflecting any changes to the boundaries
of the Land as a result of the entry Lf final judgment in, or settlement resolving, the Civil
Action; and (oil execute, acknowledge• deliver and record or file such furl -her instruments
(including, without limitation. further deeds of trust, security agreements, financing
statements. coneanuatioa statements and assignments of rents or leases) and do such further
acts as mac ht• reasonably necessary as a result of any changes to the boundaries of the
Land as a result of the entry of final lu:gment in. or settlement resolving, the Civil Action.
J.
2-3. Right of Collateral Agent to Perform. Grantor agrees that, if Grantor fails to ]
perform any act or to take any action which hereunder Grantor is required to perforrir,,or take, or 7
;;y •rr
"A
ras. ,„v m, ncv • hike, br:c,ander lirantor is requucd to pa,,.. (ulL,teral Agent. in Grantor's name
own n.on:c tftcr :he gisint (•+nv tea:tied "oti,.e and stpiraii n of any applicable cure
(pursuant I., Parazrvh 1.:. h• rcot,. may hug coil nort be obligated to perform or souse to
pertormed su.h a,+ (r take such acrnrt or p.-v such money. and any reasonable expenstx so
-. urrcd by C, tIe crsl Agent, and nv monee so paid by Collatral Agent, shall be a demand
•nhgation ov in by Grantor to Coll tiers! Agent and Q,llate, al Agent, upon malting such payment,
aall Ke s'anotatcd :,+ all of the nehts of the j eru)n oI entity receisinZ such payment. Any
molr.r,t5 d,.c ,n,! .'a'ne by Grartr• to 0.0l.ttcral Actor rut-,uant W this EX-Cd of Trust shall bear
ntrn_..t trOrn the '-WC such amount he.r`mr.:.luc until t aid a! a rite , l interest per annurn equal
a the lesser of l i) the prime rate of NCB B Texas its an i,wncea or puMfshed b•. NCNB Texas from
unc n, time. plus 2r'c, or (ii) the highest laviul rate, .Ind shall be a part of the Secured
Indtihtcdntxs and shall be secured t-y '.his aced t•I prust and by any other Iinancing Document.
ARTK LE III
Rem�l rx_i;i F.t_ent of Default
.1.1. Defaults. The term 'Ckiault' as used in this Deed of Trust shall mean the
-urrencc and continuance of an '!:sent of Default' as defined in the Loan Agreement or the
1'rudential :vote Agreement.
1.2. Atceleration. Upon the Recurrence of a Default the Collateral Agent shall have the
option of declaring all Secured Indebtedness in its entirety to be immediately due and payable, and
the liens and security interests evidenced hereby shall be subject to foreclosure in any manner
provided for herein or provided for by law as Collateral Agent may elect.
3.3. Pcnsessicn. Upon the occurrence of a Default, Collateral Agent :s authorized prior
or subsequent to the institution of any foreclosure pr•,x:cedings to enter upon the Property, or any
part thereof, and to take possession of the Property and of all books, records and accounts relating
thereto and to exercise without interference from Grantor any and all rights which Grantor has with
respect to the management, prn,cssion, operation. protection or preservation of the Property,
including the right to rent the same for the account of Grantor and to dedu., from such rents all
reasonable cnsU, expenses and liabilities of every character incurred by Collateral Agent in
collecting such rents and in managing, operating. maintaining, protecting or preserving he Property
and !o apply the remainder of such rents on the Secured Indebtedness in such manner asC`ollateral
.agent may elect. All such costs. cxpenics and liabilities incurred by Collateral Agent in collecting
such tens and in managing, operattng,i maintaining, protecting or preserving the Propery. if nbt
paid out of rents as hereinabove provided, shall constitute a demand obligatioti owing by Grantor
and shall tear interest from the date of expenditure until paid at a rate of interest per annurn equal
to the lesser of (i) the prime rate of NCNB Texas, as announced or published by NCNB Texas
from time to time, plus 2%, or (ii) the highest lawful rate, all of which shall constitute a portion
of the Secured Indebtedness. In connection with any action taken by Collateral Agent pursuant
to this Paragraph 3.3. Collateral P.gent !hall not be liable for any loss sustained by Grantor resulting
from any failure to let she Property, dr any part thereof, or from any other act or omission of
Collateral Agent in managing the Prop", including without limitation, the negligence of Collateral
Agent, unless such loss IS caused h) th gross negligence or willful misconduct of Collateral Agent,
.Ind C.:Ilatcr:d Agent shall not he ohlig ted to perform or discharge any obligation. duty or liability
under any lease agreement covering th� Property or any part thereof or undet or by reason of this
instrument or the exercise of rights on rkmedies hereunder. Should Collateral Agent incur any such
liability, the amount thereof, includingl•rcasonahlc cons. expenses and reasonable attorneys' fees,
shall he secured hereby. and Grantor s6ll reimburse Collateral Agent therefor immediately upon
demand. Nothing in this Paragraph 313 shall impose any duty, obligation or responsibility upon
Cohiteral Agent for the control, can:, management or repair of the Property, or shall operate to
make Collateral Agent responsible or !liable for any waste committed on the Property or by any
other parties or for any dangerous or defective condition of the Property. or for any negligence in
the management, upkeep, operation, rylpair or control of the Property resulting in loss or injury or
death to any ten;+nt, licensee, emplu a or stranger, unless soh waste, dangerous or defective
condition or injury or death is directly a result of gross negligence or willful misconduct by
Collateral Agent, and net just Collateral Agent's own ordinary negligence. Grantor hereby asserts
,o, ratifies and confirms any and all actions of Collateral Agent with respect to the Property taken
under this Paragraph 3.3.
973
14forcc!,4ure. 1:pon the oa:urrrrnc of a Default, the irus',-c ,s authorucd and
,•miv -crcd and it sh.,11 F,c he. it !:c• cN-, ial '_n .it the request .f C•`llairral \cent to sell the u'
R:.tl Prolxrrty or am part the eot. At a•tv time at (•r a!tcr the occurrence •f a Uct, ult (Coll:•,eral
:\erct haling dcclareJ the Secured Ind btvJceu to tv due and pavahle, as pr,. -,ided for in Section
' � r
Collateral Agent mas-_Ic•.t to commence foreclosure proceedings r,v way of a trustee's
c.tlr ;'urs,iant in the nrtrvutons vI Title 3$ Artiele 17• Colorado Revtsed Statutes 1973, as am coded, a =
,It in anv other manner then permitted N. I.— !our weeks' public notice having preciously been
_ •en oil •4c ;one .!n.J 1•1.Ice , i such ;.,lei advertisement, week!:, in a newspaper of genleral t }
,irculation in F'itkin County. or turv,n .i:,h Inther notice as may then be requtrcd "V law. Anv sale q
made by the Trustee hrrcundet ni tv N- is an entirety or in such parcels as Collateral Agent may •
request. and any sale may be adlourncd by iinnouncement at the time and place apl ointed for such `':,r• ''
sale without further mitice exec;.t as may he required by law. The sale by the Trus ee of less than
he whole of the Real PmFx rn shall not a �haust the power of sale herein crantr+. and the Trustee t;l
c sprctlicall; cmpoiwrrcd ,o m ike cuecesslye sale or sales under such p:. wer until the whole of the s}`
Real Property chill Fx• sold, and, if the / prscreds of such sale of less than the whole of the Real i Property shall be less than 0l.c aggrcgate of the Secured Indebtedness and the expense of executing ; S
/ this trust as provided herein, this Dccd ofilrtut and the lien hereof shall remain in full force and
eIfcci as to the unsold portion of the Rcal Property just as though no sale had been made;
provided. however, that Grantor shall never have any right to require the sale of less than the
whole of the Real Piopertv but Collateral Xgcnt shall have the right, at its sole 6ection, to request
the Trustee to sell less than the whop of the Real Property.
3.5 Judicial Foreclosure. The; right to foreclose this Deed of Trust by appropriate ;
proceedings in any court of compcter t Jurisdiction is also hereby given.
1
3.6 Ec •nses of Tv :ale Or Foreclosure. if the Property shall be sold by Trustee
pursuant to the p•osisioru of S on 3.4 of if this Deed of Trust shall he foreclosed by appropriate
pro -^+-dings in a court of :ompctcnt jurisdiction as provided for in Section 3.5 hereof, there shall L
be Alocated and includcJ as additional Secured Indebtedness, together with interest at a rate of
interest per annum equal to the lesser of (i) the prime rate of NCNB Texas, as announced or
published by NCNB Texas from time to time, plus 2%, of (ii) the highest lawful rate. all reasonable
expenses that may he paid or incurred by br on behalf of Trustee or Collateral Agent for the fees
and disbursements of attorneys and their staff, appraisers' fee:, outlays for documentary and expert
evidence, stenographers' charges, publication costs and costs (which may be estimates as to items
to be expended after entry of the decree) 4 procuring all such abstracts of title, title searches and
examination, title insurance policies and similar data and assurances with respect to title, as Tna:tee
or Collateral Agent may dee:-i reasonably necessary either to prosecute such suit or to evidence to
bidden at the sales !hat may be had pursuant to such proceedings the true conditions of the title
to or the value of the Propett)'. together with and including a reasonable compensation to Trustee. fir.
All reasonable expenditures and expenses of the nature in this Section mentioned, and such , `^
reasonable expenses an,. fees as may be incurred in the protevion of the Property and the
maintenance of the lien of t'.:is Deed of Trust, including without limitation the reasonable fees
and disbursements of auomeps and their staff employed by Collateral Agent or Trustee in Zany a•:,
litigation or proceedings affecting this Deed of Trust, the Notes or the Property, including without
limitation probate and bankruptcy proceedings• or in preparation for the commencement or defense
of any proceeding or threatened suit or proceeding, shall be immediately due and payable byfa?-
Grantor, wi h interest thereon at a rate of interest per annum equal to the lesser of (i) the prime t
rate of NC*:B Texas, as announced or published by NCNB Texas from time to time, plus 201c. or
th),r'highest lawful rate.
/ 3.7. Receiver. In addition to all other remedies herein provided for, Grantor agrees that
--upon the occurrcnce-!if a Default, C, Ilateral Agent shall, as a matter of right and with notice to
i Grantor, be entitled to the appointment of a receiver or receivers for all or any part of the 4,
Property, whether .:uch receivership be incident to a proposed sale of such Property or otherwise. r
and without regard to the value of the Property or the solvency of any person or persons liable for
the payment of the Secured Indebtedness' and Grantor does hereby consent to the appointment
of such receiver or receivers, waives any and all defenses to such appointment and agrees not to y}?
i
oppose any application therefor by Collateral Agent, but nothing herein is to he construed to �.
deprive Collateral Agent of any wher right, rem,!oty or pnvilcee it may now or hereafter have under
the law to have a rccci%cr appointed: provideo. however, that the appointment of such receiver.
trustee or other appointee by virtue of any court order, statute or regulation shall dort impair or
in any manner prcludice the rights of Collateral Agent to rcccise payment of the rents and income
ZW-
.4 974
0
tam the Property. Xnv -winey advanced hy I k.*,)llatrrs1 Agent in connection such
,!
bN. (;,.In tl,r no CA)Ilatcrai ..-%cent and shall beat
reiNcrship shall be a denvid obligation o-trig
ce
advancerne.' rt by t'o'atrral Agent until paid at a rate Of
inter.-. t from the date of making s-i,:h
tc,_,r of (,) t he prime rate of NCNB Texas. as announced or
intrust per Annum cQual t,, the I
l pj�% I - highest lawful rate, and shall
by NCNB �r,-Xxl from twic to time 'r. or tit the irlt the Secured L dchtcdness.
re ,-curTd by this [)end •*( Tout and by any other instrument s:xur
The proc:cds of 11-.v sj!e held b% the 'Mltee or any receiver or
F.
.!firer in t,: cclosure of the VirusCV,drilice d hereby shall be JVPI'":
A
S,
lint, to th,- pj%-men! of all necessary axis and expenses incident to such foreclosure .
Paragraph I,h and all court costs and
sAc including but not limited in those dc5criNA n
the cent foreclo-wd by suit:
chat Fes of every (1�,iracti.r in
,ivmcnt in full of the Secured Indebtedness (including s cirlcallv
�ond, to she I PC
fees due and unpaid on the
yyy
but without limitation the principal, interest and attorneys
Agent under this Deed of
Notes,atid the amounts due and unpaid and owed toCollateral
T7 ) as provided in the Intercrecittor Agreement: and
1/ third, the remainder, if any, -.hall be p,id to Grantor or other party legally entitled
thcrcto.
_ct.. s ic. In case (if an insured loss after judicial foreclosure
1.9 !nLuranct-UMn E(Ire_
the of any insurance: policy Of POli6cs,
or Trustee's sale prxcedings have been insti tuted, proceeds
the buildings or improvements, shall be used to pay the
if not applied to rebuilding or restoring
the Secured Indebtednims. in the event of judicial foreclosure or Trustee's sale,
,mount due upon
Trustee is here--hy authorized. without the consent of Grantor, to assign any
(,,Illatetal Arent or Tru: as Collateral
to the at the sale. or to take such other steps
end all insurance policies purchaser
Trustee ma y deem advisable to cause the interest Of such purchaser to be protected by
Agent or
any of the said insurance policies.
ch r. Collateral Agent shall have the right to become
3.10. LiceCollateralAgent as �Lcr
officer, d Collateral
receiver or public
the purchaser at any sale held by any Trustee or by any re" upon the amount of the bid made
have the right to credit
Agent purchasing at such sale shall
to a'...ify,such bid. the Se cured Indebtedness owing to the
therefor, to the extent necessary
I Collateral Agent andlor Lenders for the equal and ratable benefit of Lenders.
-in the occurrence of a Default. the Collateral Agent
3.11. Vfljf0M1_ram Mcrcial Code. Up( or may not.
its of enforcement with respect to any part of the Property that may
may exercise rights
now or hereafter, be or he deemed to be P`i—nal property, fLxtures or property other than real
Code, as amended, end
estate (the 'Personal Property") under the Colorado Uniform Commercial
in for those rights and remedies:
in conjunction with. in addition to or substitution
ter upon the Property to take pcnsession of, assemble
Collateral At may enter
and collect the Personal Prcperty or to render it unusanIc. and
(h) Collateral Agent may requi,c Grantor to assemble the Personal Property and
Agent to take possession or dispose
make it available at or on the Land to all(ry Collateral
of the Personal Property: and
ed e'
(c) written notice mailed to Grantor as proved herein 5 days prior to thdate
t\V.
date which private sale othe
I
of public sale (if the Personal Property or prior to the after
nol!;t-% and
Personal Property will be made shall constitute izasonablc
—1- made pursu I ant to the provisions of this Paragraph ' 1.11 shall be
(d) any
deemed to have been a public sale *)ndu;--tcd in a ccmmercially reasonable manner if held
under Of sale as provided
Contemporaneously with the sale Of the Real Property power
herein upon giving the same notice with respect to the sale of the Peisonal Property
of sale: and
a
hereunder as is required for such sale Of the Real Property under power
(et to .fire event of a forecooure sate. +.hcther wa:c I— he Treace under the
!errr_% herutl, or undo :Jgment of a :,wrt, ';:c 1'rruinal Pn-perty and the Real PrOperty
mac. at the option if o-a!iteral Agent '-c fAd as at Wh4,1,, and
I
(f) it shall not tic necessary tha. t cllatct it Agent t.tkc brut-mion of the Personal
Property or my pan :hereof prior to th•. tt,ne that arty .ale pursuant to the prrni:ions of
this :'aragraph 3.11 is cmducted. and v %hail not he ntax%ary that the Pers, it Pro;xrty
or any part :hrrc:a f - present at the (, iti:m c,f sw, h sal-. and
ig) prior to application of prrc ds tit caslKstu„n of the Per,t'n:ti Property to
the Secured Indebtedness. such p,o ccctts �'jzil he applied to the rcasonah!e expense: of
retaking, holding. preparing for sae or k a%e, xllirG. ie.t%ine and the like- anti :hc re.uondble
at:o,ncys fees and legat cxperur.-s inct.rrz:d h% Collateral Agent. and
(hl any tnd all sutements of fact or other recitals maJe in any hill of sale or
assignment or tither ustrumct.t evidencing tins• foreclosure sale hereunder tU to nonpayment
of the Secured Indehtedne s, or as to the occurrcme of any Dc`ault, or as to Collateral
Agent and/or Lenders hwmg declared all of such irtdcbtcdneu it) be due and payable; or
as to nonce of time, place and terms t•f sale and of the pnrtxrties to Ix sold having hen
duly given, or as 'o any other act or thine having been duly dune by Collateral Agent
and/or Lenders, shdll be taken as prima facie evidence of the truth of the facts so stated
and recited; and \
(i) C;ol,ateral Agent may appoint or deter
atc any one or more persons as agent t
to perform any -ict or acts necessary or incident to any sale held by Collateral Agent, r
including the scrtding of noti.:es and the conduct of the sale, but in the name and on behalf
of Collateral Agent, �
/ 3.12. Partta; Forecicxure. In the event of a default in the payment of any part of the
/ Secured lndebtcdn,=. Collateral Agent shall have dhe right to proceed with foreclosure of the liens
d
and security interests evidenced hereby without de' firing the entire Secured Indebtedness due, and
the of the Secured
in such event an% such foreclosure sale may be made subject to unmatured part
f (ndebtednm. and any such sale shall not in any mfinner affect the 'inmatured part of the Secured
^�
Indebtedness, 'out as to such •unmaturcd part thin feed of Trust shall remain in full force and
i
effect just as though no sale had been made. 714 proceeds of any such sale shall be applied as
rrovided in Paragraph 3 8 e-ccept that the amouni, paid under subparagraph second thereof shall
he only the matured portion of the Secured Indebtedness and any proceeds of such sale in excess
of those provided for in subparagraphs Ent and!secomd (modified as provided above) shall be
applied ha installments of principal of and interes� on the Notes in the inverse order of maturity.
`
Several sales may be made hereunder without exhiusting the right of sale for any unmaturcd part
of the Secured Indebtedness.
3.13. Remedies Cumulative. All remedieal!Iherein expressly provided for are cumulative of
any and all other remedies existing at law or in tquity and arc cumulative of any and all other
remedies provided for in any other instrument scarring the payment of the Secured Indebtedness,
or any part thereof, or otherwise benefiting the Trtistec. the Collateral Agent and the Lertders, and
ine Trustee, the Collateral Agent and the Lenders shall, in addition tc the remedies herein
t
t
provided. be entitled to avail themselves of all such other remedies as may now or hereafter adst
at law or in t.,tuity for the collection of the Secured Indebtedness and the enforcement of the
covenants herein and the foreclosure of the liens and security interests evidenced hereby, and the
resort to any remedy provided for hereunder rvr under any such other instrument or provided for
by law shall not prevent the concurrent or subsequent employment of any other appropriate remedy
;
or remediet.
("
3•t4. R�Lr.L Any Security. Collateral Agent may resort io any security given by the
'
Deed of Trust or to any other security now existing or hrrrafter given to secure the payment of
the Secured Indebtedness.:n whole or in part, and in such portions and in such order as may seem
hest to Collateral Agent in its sole and uncontrolled discretion. and any such action shall not in
'r
eLAA
an%isc be considered as a war.•er of any of the rights. hxnefits, liens or security interests evidence,; 1
it,
ow, Eked of Trust.
i4 .
6e-
3.15. To the Will c-ecnt grantor nas :: ski, Grantor agrees that Grantor will
/
t it any time insist urx•n, plead..la•cn .r take the Prjxll: or advantiee of env law now or
ncrca'ter ;n !tree pertaining to the nl' LS and rr n• ii s of sureties :or p o,tdmg for any
.ippr:usement, valuation, stay, csteruion o,r :cdcmption.
d Grant or, our grantor and Grantor's
ns ever claiming any
heirs, dccisces, representativcs, succc•;.v,,r, and .tcsigns. enact 1
tr trio and all perst
.L
-nterest m the Propem_. in the extent ;x•tmiced by lawJr.r
rbv waives and releases all rights of
+ .
redemp-ion. valuation. appratsea:ent. stay ,( cse•cutior.
ce of intention !n mature or declare
!ue the whole of the Secured Indebtedness an•.I all rights h
a marshaling tit the assets of Grantor.
including the Property. or to a sale in r,sers, ,• der of ,ilic
ation in the event of furcdo)sure of the
hens and security interests hereby created. Grantor shall
not have or assert any right u :der any
tatute or rule of law pertamin'e it, • the marshaling of ays
sale in inverse order of alienation.
the exemption of homestead, the idnitnistratioa of estates if decedents or other matters whatever
to defeat. reduce or affect the righrs of the Trustee or Cblfancraf Agent under the terms of this
Deed cif Trust to a sale of the Property !or the collection 0'
the Secured In&btedness without any +
prior or different resort for collection, or the rights of the'
rrotstee or Collateral Agent under the
terms of this Deed of Trust to the payment of such indchteifness out of the proceeds of sale of the
Property in preference to every other claimant whatever. If any law referred to �a this
Paragraph 3.15 and now in forte, of which Grantor or Grantor's successors ant; ass:gns and such
other persons claiming artv interc••:t in the Property, might take advanta;e despite this
Paragraph 3.15 .shall hereafter be repealed or cease it, he in force. such law shall not thereafter
be deemed to preclude the application ;" thi; Paragraph 3.15.
3.16. Tender After Aeeelespt;:ore. If. following the Occurrence of a Default and the
y
acceleration of the Secured Indebtedness but prior to the. foreclosure of this Deed of Trmt against
the Property, Grantor shall tender to Collateral Agent and'or hndcrs payment of an amount
sufficient to pay the entire Secured Indebtedness. such tender shall he deemed to be a voluntary
prepayment under the Notes and, consequently. Grantor shall also pay to Lenders any charge or
premium required under the Notes to be paid in order to prepay principal and, if such principal
payment is made during any period when prepayment is prrhihited by this Deed of Trout, the
1
Notes, or the Financing Documents, the applicable charge or premium shall be the maximum
in
k!
prepayment penalty provided for in the Notes or Financing Documents: provided, however, that
no event shall any amount payable under this Paragraph 3.16. when added to the interest otherwise
R
payable on the Notes and the other Securcd Indebtedness, exceca the maximum interest permitted
under applicable law. �
'
3.17. InsurancEPremiums. Upon any foreciosure of the Real Property pursuant to this
Deed of Tract. Co�ateral Agent shall have. the right to cancel any policy (if insurance covering all
i
k
or any part of the Property and shall he entitled to receive any unearned premiums from such
a,
txtlicy. The fit%arnted premiums receKcd by Collateral Agent shall be apptiel in the same manner
as provided in Paragraph 3.R above regarding the application of proceeds of sale of the Real
;'.
Property.
-�'
ARTICLE IV.
assignment or Rents Profits, Inciomee
F.
Contracts and bonds
•
4.1. Assignment. Grantor does hereby absolutely and unconditionally assign, transfer and
set over to Collateral Agent all rent_,. income. prafits and proceeds to he derived from the Property.
including without limitation the immediate and continuing right to collect and receive all of the
LL
rents, income, receipts, revenues, issue.. profits and other sums of money that may now or ,it any
time hereafter become dote and payable to Grantor under the terms of any present or future Icascs
now or hereafter covering the Property, or any part thereof. including but not limited to min;mum
i
rents, additional rents, percentage rents. deficiency rents and liquidated damages following ucfault,
proceeds payable under any policy of insurance covering the loss of rents resulting from
untena stability causer± by destr ction or da,nage to the �roperoy, and liens and rights, whether
lessor they
,,e 7
constitutional, statutory. contractual or othcrwise. in favor of Grantor as the of any of
Property. and all of Grantor's rights to rcccver monetary amounts from any lessee in bankruptcy
including. without limitation. rights of recovery for use and Occupancy and damage claims arising
out of lease defaults, including rejections. under the rlanitruptty Reform Act of 1978, as amended.
or any other present or future federal or state insolvency, hankruotcy or similar law (all of the
foregoing hereinafter collectively call,. ' litahle Hankr cy law"), uteether with am sums of
15 .
643 977
I ,
money that may now o .+t anv umr hrrrattcr hct.,mr :'rc a.ad payah!e to ti.antor by virtue of any
°'r.;u<rs. Jcla; itntaiS end any thct amount of anv fund or
_ ..
end all rovaitacs. overriding rovaiurs.
character nr.dcr ar•. and +'' ;'r -'ant and future oil• gas anti mining lenses covering the
+'y°
zrising
Propett, ur any part then c't: and ai. ; «rr, r .' r`;cr amounts paid or Diving to Grantor under
Fx,nds +c',! ng In the construction. erection or renovation
,.
!�_�V .
r p suant to anv anrt 01 ointiacts :iml
Collateral Agent to to
1 llie a hccio.e hcrchv granted by CoGrantor
Pn pcm; +uh)cct h• wcs'er t
(a;.
/i llrct and rcune anti.=grnd all .tt the (utrg'+mg, :uh;rct to the terms and conditions hereof.
M+
I pon the occurremc ant' continuance of ahv Detault. Collateral Agent shall have the right, power
and pnsdcge (but shall he under no Jur:),G+ terminate such license whereupon Collateral Agent
hcth t or inn n takes of the Property, to seek
it
,hall have the right and iuthonn. s txxsession
con rot tr Iv,nd and to dcm .td, c'tl'cct, rcccivr, sue for and
of am• such con
tt
;niorccment
recover to its own name .env and all of the atxn", describe amounts assigned hereby and to apply
incident to the collection of the
ti'
the vint(s) collected. f!r.t to the payment bf rc.uivnahle cspens<•s
second to the p.rvment of the Secured Indebtedness as provided in the Intercreditor•-
;Z
+amc,
-Xercement, and the balance, it anv, to Grantor or other party legally entitled tht:eto: provided,
be deem.ed to have taken possession of the Property
,t•
however, that Collateral :%gent shall not
r cept on the Lxert'isc of its option to do so, cadenced by its demand and overt act for such
'
purpose. Grantor shall make no assignment or other disposition of the above described amounts
tssi¢ncd hereby. nor, unless permitted under the Loan Agreement, shall Grantor cancel or amend,,",
nv such lease" contra( t, ;vmd or anv othoir instrument under which such amounts nre to be paid
t
Of waive, excuse, condone. discount, set 0 . ozrmpromtse or in any manner release any obligation
4
;hcrcundcr. nor shall Grantor receive or ct sleet any s•ach amount thus aminned for a period of more
thereof is aae and Grantor shall duly
than one month in advance of the date o which payment
and punctually observe and perform every obligatior to he performed by it under earl, such lease.
contract, bond or other rristrument and s all not do or permi' 'o he dune anvthing to impair the
`'.
security thereof and wall enforce, to the extent such enforcement would tx_ reasonably prudent
.
under the circunutanc'es, every obligation of each other party thereto. Thc assignment contained
in this Paragraph 4.1. shall become null and void upon the release of this Deed of Trust. It shall
s
never tie necessary for Collateral Agent to institute legal proceedings of any kind whascxver to
enforce the provisions of this Paragraph 4.1.
a In
AR11C! U V.
' r
llaz rd-us S1:rtcrials
:.I. Qejinitio s. For the purpose of this Decd of Trust, Grantor. Collatcral Agent and
Trustee agree that. unless the context o�herwise specifics or requires• the following terms shall
have the meaning herein specified, r ;.
(a) 'Hazardous Matcriils' shall mean (a) any "hazardous waste" as defined by the
Resource Conservation and Recrlvery Act of 1976 (42 U.S.C. Section 6901 et seq.), as
amended from time to time, and regulations promulgated thereunder: (h) any "hazardous
by Qtr.Vrchcnsive Environmental R,;spx,nse, Compensation and
substance" as defined the
Liability Act of I9i;O (42 U.S C. Section v6)1 et seq.) ("CERCh�"l. ax amended from time
bi ien h
:f
tl •chlorinated
to time, and regulations promulgated thereunder, (c) asbestos: (d) P' y P• Y
L+,
re) underground stooge tanks tv ether empty, filled or partially tilled with :env substance.
. .K
(f) ary substance the presence f which on the Real Property is prohibited by any
Governmental Requirements (asf",
fined helow); and ;g) ary other suhstancc which by anyGovernmental
Requirements reqres special handling or notification .if any federal, state
or local governmental entity in its collection, storage, treatment, or dtspexsal.
t,
h " 1a a dour b,ateripls Contamination" shall mean the contamination (whether
air
r' '
r
presently existing or hereafter oc� urrtne) of the buildings, 61cilitics, soil. groundwater,
ti Sr
or other elemenLz on or of the Real Property by Hazardous Materials, or the contamination
of vie buildings. facilities, soil. groun:iwatet. air or other clemerts on or of any other
3
property as a r_•sult of Hazardous %tat",nals at any time (whether hct.uc or after the date
y.
of this D-:ed of Trust) -:maniting tram the Real Property.
(cI '_Gtn�crnmr.ntal R uircmcnts" shall mean all laws, ordinances. rules, and
i f
regulations of anv Governmental uthonty (as defint-d below) ;tpplicthle to Grantor or the
Rid Properry I
r-
•"hip'
,4,
V
• 64'3 6
i
(di -!;uv r mental Authority' shall tncar. !he United States. the state.:runty.
city, or any other political wbdivision in which the Real Property is kx_ted, and any other
political subd!vision, agency- or instrumentality cscrtstng jurisdiction over Grantor or the
'
Rcal Property.
5 2_ (.irantor _ Warraw +. grantor hereby rennscnts and warrants that:
(a) No Hazard,,us Ntatenats have hrcn collected, stored, treated or disposed
}
of in a manner which vichtcs ,%pplicahle Law and no Hazardous htatcriaL% which would
the value the Property are now heated on the Real \
have a material adverse effect on iof
Property, and neither Granto: nor. to the best of Grantor's aerial knowledge and belief,
any other person has ever cau:•cd or permitted .in. lazardous Materials which would have
a material adverse effect )n :he value of lthe Profic•ty to be placed, held, locntcd or
P, al Pmp-crty4ar an} part thereof.
disposed on, under or at :he
�-
th) No part of the Real Praperty is being aced nor, to the best of Grantor's
actua! knowledge and belief, h.0 hcrn used at any previous time for the disposal, storage,
treatment, procming or other tan.fling ufiHazardous Materials. not is any part cf the
Real Property alfected by any Iazardous `rIatcrials Contamination;
/.
(c) To the best of (;tantor's actual knowledge and belief, no property adjoining
the Real Ptopxrty is bang used. or has ever t�cn used at any previous time for the disposal,
storage, treat•nent, proccsstng or that handling of Hazardous Materials nor is any other
t
property adjoining the Real Prnpctty atfcci�d by Hazardous Materials Contamination.
I
5.3. Grantor's Co%•crants. Grantor agrees to (a) give notice to Collateral Agent
immediately upr)n Grantor's acquiring knowledge of the presence of any Hazardous Materials on
the Real Property or of any Hazardous Materials Contamination with a full description thereof: (b)
p;umptly comply with any Governmental Requirements requiring the removal, treatment of disposal
✓'
of such HwArdous Materials or lazardous Matcrials Contamination and provide Collateral Agent
with satisfactory evidence of such compliance; and (c) provide Collateral Agent within thirty (30)
d:tvs after demand by Collateral Agent, with a bond, letter of credit or similar financial assurance
evidencing to Collateral Agent's reasonable satisfaction that the necessary funds are available to pay
the test of removing, treating and disposing of such Hazardous Materials or Hazardous Materials
Cont: mination and discharging any assessments which may be established on the Real Property as
a r,-sult thereof.
'
5.4. Site Assessments. Collateral Agcnt (bv 'Its officers. employees and agents) at any
time and from time to time, either prior to or after J.e occurrence of a Default, may contract for
the services of persons (the 'Site Rvicxcrs') to pct!orm environmental site assessments (the 'Site
Assessments') on the Real Property for the purpose of determining whether there costs on the
Reap Property any environmental condition which could reasonably be expected to result in any
h,Ihility, cost or expense to the owner, occupier or operator of such Real Property arising under
any Governmental Requirements relating to Hazardous Materials. The Site Assessments may be
performed at any time or times. upon reasonable notice. and under reasonable conditions
established by grantor which do not impcdz the performance of the Site Assessments. The Site
Reviewers are hereby authorized to enter upon the Real Property for such purposes. The Site
Reviewers are further authorized :o rerform both above and below the ground testing for
environmental damage or the nresencc of Hazardous Materials on the Real Property and such
other tests on the Real Propertv as may be necessary to conduct the Site Assessments in the
reasonable opinion of the Site Reviewers. Grantor will supply to the Site Reviewers such historical
and operational information regarding the Real Property m. may be reasonably requested by the Site
Reviewers to la/cilitate the Site Assessmcnts and will make available for meeting with the Site
Reviewers ;p5propriate personnel having knowledgc of such matters. The reasonahle cost of
pert-- g such Site Assessments shall he paid by (;cantor upon demand of Collatcral Agent and
any syeit expenses borne by Collateral Agent .ind not immediately reimbursed by Grantor shall be
secured by this Deed of Trust.
5.5. Indemnification. Rceardlcm of whether any Site Assessments are conducted
hereunder, if any Default shall have occurred and b, continuing or any remedies in respect of the
Real Property are exercised by Collateral Agent. Grantor shall defend, indemnify and hold harmless
7
• 64.1• 079
Collateral Agent, trustee and the Lenders f onl any tnd all 'W! ilities (in(luding strict liability)•
n.tions, demands, penalties. losses, outs or .xpeAtCs f.ncludirg. without limitation, attorneys' fees
.tnd experues, and remedial casts' suits, costs of anv settlement or judgment and claims of any and
? cscry kind whaty�ever which mac r. — ,r in the :)uture i whether before or after the release of this
D,_ed of Trust) be paid, in:urrc.1 .tr i,.tfercd by', r assert-:d janinst Collateral Agent. Trustee or �
" ;he Lenders by ary person �r CcIrty or eovernmJ'ntal ag, ncy for, with respect to. or as a direct or
indirect result of, the presence on or under. or the cs.atx. seepage, leakage, spill.tee, discharge•
mission or release from ehc Real Property w my Hazardous Materials or any Hazar.l ous Materials
Contamination or arise out of or result from the environmental condition of the Real Property or
the applicability of any Governmental Requirements relating to Hazardous Materials (including,
%%ithout limitation. CERCI_A o, any federal. staid or local so called "superfund" or 'superlien" laws.
or any code. rule, regulation• order or decree promu!*atcd thereunder); provided, however• the
indemnity provided above shall not apply to any liabilities, actions, demands. penalties. losses. costs
or expenses, suits, uxts of any settlement or judgment and claims of any and every kind whatsoever
(i) which are deteraimed in a final, non -appealable judgment by a court of competent jurisdiction
to have been caused by or within the eontrcl of Collateral Agent and/or Lenders is a result of
.rctions in their capacities as beneficiaries of this Deed of Trust and not as a result of anv
determination in such judgrr.ent or otherwise that any covenants. conditions or provisions in any of
the Financing Documents gr.e or p t to give control s.ver Grantor or any of the Real Property
or tti) which is the result (d an eve-•. •..tat occurs after foreclosure of the Property for any portion �
thercol) or :he taking of a deed in lieu of foreclosure covering the Property (or any portion
thereof). unless such event ox,-um as a result of or arises out of a Hazardous Materials
Contamination or an evironmcntal condition of the Real Property that occurred or existed prior
to such foreclosure or such taking of a deed in lieu of foreclosure. The representations, covenants,
warranties a indemnifications contained in this Section shall survive the release of this Deed of
Trust. F9rth purposes of thi:i Section, the term "Coilateral Agent' and "Lenders' shall include
all subsequent owners or holders of any obligations secured by this Deed of Trust, all directors,
ofticeis. employees and agertu-of such entity and anv persons or entities owned or controlled by
or zaffiliated with Collateral Agent or either Lender, and their respective directors, officers,
employees and agents. ,
5.6. Collateral Agent's Riaht to Rcm ve Hazardous Materials. Collateral Agent shall
have the right but not the obligation. prior or subsequent to the occurrence of a Default hereunder,
without in any way limiting Collateral Agent's other rights and remedies under this Deed of Trust•
to enter onto the Real Property or to take such other actions as it deems reasonably necessary or
advisable to clean up, remove, resolve or minimize the impact of, or otherwise deal with. any
Hazardous Materials or Hazardous Materials Contamination on the Real Property following receipt
of any notice from any person or entity asserting the existence of any H uzardous Materials or
Hazardous Materials Contamination pertaining it) the Real Property or any part thereof which• if
true. could result in an order, suit, imposition of a lien on the Real Property, or other action and/or
which, in Collateral Agent's reasonable opinion, could jeopardize Collateral Agent's security under
this Deed of Trust. All reasonable costs and exjierses paid or incurred by Collateral Agent in the
exercise of any such rights shall be the Secured Indebtedness secured by this Deed of Trust and
shall be payable by Grantor upon demand.
I"
ARTICLE VI.
Miscellaneous
6.1. Release. If all of the Secured Indebtedness be finally and fully paid, the Property
shall become wholly clear of the liens• security interests, conveyances and assignments evidenced
hereby. which shall be released by Collateral Agent at Grantor's cost.
6.2. waPtr by CollateralAgent- Subject to the terms of the Intercreditor Agreement,
Collateral Agent may at any time and from time to time in writing (a) waiv• compliance by Grantor
with any covenant herein made by Grantor to the extent and in the manner specified in such
writing: (h) consent to Grantor doing any act which Grantor hereunder is prohibited from doirTg
or consent to Grantor failing to do any act which Grantor hereunder is required to do, to oho\
extent and in the manner specified in such writing; (c) release any part of the Property, or any t
interest therein, from the lien and security interest of this Deed of Trust without the joinder of the
Trustee, or (d) release anv party liable, either d4ectly or indirectly, for the Secured Indebtedness
or for any covenant herein or in any other instrument now or hereafter securing the payment of
i'
.wj
r-r
joy.-t 4E3U
the bccured Indr! :••. wi'!� ut ,m�airin¢ rasing the i abdtty of ar.' .)II*
rty. \ wch
.rct shall in any wav imnau the rights of Collat:rtl \xcnt here-indcr except to the extent speuftcally
.tgrccd to by Collateral Agent to such I%Tnine '
6.3.iltc In. security interest and other security rights of
Collateral Agent and lenders hereunder shall not he impaired by any indulgence, motstorium or
release granted by Collatcral .Agent, tncludr�e ut not limited to I a) any renewal. extension, ir._rease
or modification which Collateral Agent or anv (ender may grant with respect to any Secured
Indebtedness. (b) arw surrender. o,m-pnirnoc, t•:;case. renewal, extension, exchange or substitution
hick Collateral Agent or any I�-ndcr mats grant too respect of the Property, or any part thereof or
anv interest therein (except to ttt:- cxtcnt >pcciticills surrendered. compromised. released. renewed.
extended, exchanged or substituted). or (ct .inv release or indulgence granted to any endorser.
guarantor or surety of any Sccurcd Indebtedness The taking tit additional security by Collateral
Agent shall not release or impair the lien. security interest or tither security rights of Culi.,teral
Agent hereunder or affect the liahility of Grnnux or of any endorser or guarantor or other surety
or improve the right of any permitted junior lien older in the Property.
6.1. Fights uf�ullateral Agent. Subjclt to the terms of the Intercrcditor Agreement,
DO ra
t' 11 tteral Agent may wstvc any ft or oth r default without waiving any other prior or
,uhsequent Default or tither default. Collateral Agent may remedy any Default or other default
wrth,tut waiving the Default or other default rcmrdicd. Neither the failure by Collateral Agent to
exercise, nor the delay by Collateral .Agent in exercising, any right, power or remedy upon any
Dctault or other default shall be construed as a waiver of such Default or other default or as a
waiver of the right to exercise any such right, power or remedy at a later date. No single or
partial exercise by Collateral Agent of any right. power or rctnedy hereunder shall exhaust the same
or shall preclude any other or further exercise thereof, and every such right, power or remedy
hereunder may be exercised at any time and from time to time. No modification or waive: of any
prosiston hereof or consent to any departure by Grantor therefrom shall in any event be effective
unless the same shall be in writing and signed by Collateral Agent, and then such waiver or consent
shall be effective only in the specific instances. for the purpose for which given and to the exten'�
therein specified. No notice to or demand on Grantor in any case shall of itself entitle Grantor \
to any other or further notice or demand in similar or other circumstances. Acceptance by
Collateral Agent of any payment in an amount less than the amount then due on any Secured
Indebtedness shall be deemed an acceptance on �ccount only and shall not in any way affect the
existence of a Default or other default hereunder'!
6.5. Reproduction as Financing Statcm t. A carbon. photographic or other reproduction
of this feed of Trust or of any financing statement relating to this Deed of Trust shall be sufficient
as a financing statement.
6.6. Fixture Fling This Deed of Trusts sha!I be effective as a financing statement filed
as a fixture riling with respect to all fixtures included within the Property and is to be filed for
record in the real property records of the counq where the Property (including said fixtures) is
situated. This Deed of Trust shall also be effective as a financing statement covering minerals or
the like (including oil and gas) and accounts subject to Section 9.103(5) of the Colorado Uniform
Commercial Code, as amended, and is to be filed for record in the real property records of the
county where the Property s situated. The cowling addres: of Grantor is set forth below the
sign: Lure of Grantor to the Deed of Trust an� the address of Collateral Agent from which
information concerning the security interest may obtained is 901 'stain Street. Post Office Box
.931000, Dallas, Texas 757R3 1000. Grantor doeshave an interest of record in the Real Property.
6.7. Filing and Recordation. Grantor will cause this Deed of Trust and all amendments
and supplements thereto and substitutions therefor and all financing statements and continuation
statements relating hereto to be recorded, filed, rerecorded and r.-filed in such manner and in such
places as the Trustee or Collateral Agent shall reasonably request. znd will pay all such recording•
filing, re-recording and refihng taxes. fees and other charges.
6.8. Dealing with Successor. In the event the ownership of the Property or any part
thereof becomes vested in a person other than drantor, Collateral Agent may, without notice to
Grantor, deal with such successor or successors in interest with reference to this Deed of Trust and
to the Secured Indebtedness in the same manner 'as with Grantor• without in any way vitiating or
Jischarging Grantor's liahtlity hereunder or for the payment of the Se..ured Indebtedness. No sale
i
_ 19 .
f,
1
/'al.
,;.
.�,
643
i
of the Property, no ArPrionce on the :pan tit G:iiateral a^cnt or l either Lender and no extension
of the time for the pa. ncni .,I .,:!% if the C, 1 IrAcbtedress given by Collateral Agent or either
Lender shall operate it., ;, leme. I-, ha q:r. w!•!,, change nr nIfcct. in whole or in part, the liability
of Grantor hereunder or 1,r the p:,yn t:ni , ;'rir xec a red Ind, htrdness or the liability of anv other
j,c•son hereunder or 1,.r the pa-iwnt 1 J, ;::,lcntcdness, except to the extent proceeds
of any such sale arc apphc ; is rr.,•,i.cd ars e' ira�r i1-1,. t R.
r•..
6.9, 'in:on. nQ (hx :moors and all other Secured
--- - - -
Indebtedness
which m.is .<::,•. ng `, rcundci .;; .,; s ; ❑ie 1,% Grantor ,h.,ll he payahlc at the place
designated in
the Notes and or Fin:mnng h„cumcr. s, or d no such dcsignatior is made, at the
11fice of Collateral ,\gent at the iddress indican d n his Dced of Taut. or at such other place in
1' I
the continental United States a C„Ilrter,tl .\gent m.;y designate in writing.
6.10. Suhrog,auon. To the ertrrit 11 it pnaeeils of the Notes are used to pay indebtedness
,r
%ecurcd by any outstanding lien, %cc-irw interest, ch it c or prior encumbrance against the Property.
such proceeds have been advanced ny Len; ers at Granior•s request and Lenders shall he suhrogated
to anv and all rights, security ;ntcrests and liens ow
ed or held by any owner nr holder of such
outstanding liens, security ,ntcre Ls. charges or en cu
brances, irrespective of whether said liens,
security interests, charges or encumhranccs are relc:iscd; provided, however, that the terms and
provisions of this Decd of Trust vh •'I govern the !rights and remedies of Lenders and shall
supersede the terms, provisi-ms, rights ind remedies under and pursuant to the instruments creating
the lien or liens to which l.erdcrs are suhrogmed he' under.
6.11. A29dicalic, _of ndcbtedness. If any pHrt of the Secured Indebtedness cannot be
lawfully secured by this Deed of Trust or if any part of the Property cannot be lawfully subject
the lien and security interest hereof to the full extent of such indebtedness, then all payments
made shall be applied on said indebtedness first in dischai,,e of that portion thereof which is
unsecured by this Deed of Trust.
6.12 lls92. It is the intent of the Lenders and Grantor in the execution of the Notes,
this Deed of Trust, the other Financing Dc cumcnts and all other instruments now or hereafter
securing the Notes or executed in uinnection therewith or under any other written or oral
agreement by the undersigned nt favor of Collateral .Agent and/or Lenders to contract in strict
compliance with applicable Usury law. In furtherance thereof, Collateral Agent, Lenders and
Grantor stipulate and agree that none of the terms and provisions contained in the Notes, this
Deed of TrusL the other Financing Documents or any other instrument securing the Notes or
executed in connection herewith, or in any other written or oral agreement by Grantor in favor of
Lenders and/or Collateral Agent. shall ever be construed to create a contract to ' pay for the use, forbearance or detention of money, interest at a rate in excess of the ma., !mum in: -rest rate
permitted to be ch. tged by applicable law. Neither Grantor nor any guarantors, endorsers, sureties
or other parties now or hereafter becoming liable for the Secured Indebtedness or any part thereof
shall ever be required to, pay interest on the Notes or on indebtedness arising under any instrument
securing the Notes or finder any of the other Financing Documents, or in any other written or oral
agreement by Gr, for in favor of Lenders anc8or Collateral Agent, at a rate in excess of the
maximum intern that may he lawfully charged under applicable law. and the provisions of this
Paragraph 6.1Z shall control over all.other provisions of cie Notes, this Deed of Trust, the other
Financing,[Quments and any other instruments now or h - •,fter securing the Notes or executed
in connection herewith or any other oral or written agrecm s which may be in apparent conflict
herewith. All interest paid or agreed to be paid to I.eneers and/or Collateral Agent shall, to the
extent permitted by applicable law, be amortized• prorat4d, allocated and spread throughout the full
period until payment in full of the principal of the Secured Indebtedness so that the interest
thereon for such full pericA shall not exceed the maximum amount permitted by applicable law.
Lenders and/or Collateral Agent expressly disavow any intention to charge or collect excessive
unearned interest or finance charges in the event the maturity of the Notes is accelerated. If the
maturity of the Notes shall be accelerated for any reason or if the principal of the Notes is paid
prior to the end of the term of the hrtes, and as a result thereof the interest received for the
actual period of existence of the loan evidenced by the Notes exceeds the applicable maximum
lawful rate. Lenders and/or Collateral Agent shall refund to Grantor the amount of such excess or
shall credit the amount of such excess against the principal balance of the Notes then outstanding.
In the event that Lenders and/or Collateral Agent shall collect monies and/or anv_ other thing of
value which are deemed to constitute interest which would increase the effective interest rate on
the Notes or the other Secured Indebtedness to a rate �n excess of that permitted to be charged
20
by applicable law. an amount equal to interest ,n excess of the lawful rate shall, ufxon such
Co!latetai Az.cnt. !r either immccliately returned
Jcterminauon, at the option of Lenders .ind.,or
to Grantor or credited against the principal balance of the Nntcs then outstanding or the other
Secured Indebtedness. wuh,tut further penalty to such holder. By cxecuuon of this Deed of Trust,
h, the Votes to he non -usurious and
Gr, mor acknowledges that it believes the loan evtden, cJ
that if. at any time. Grantor should have reavon to bc' c that such loan is in fact usurious,
agrees
it will give Lenders andor Collateral Agent notice of -,uc': , On,7itaon, and Grantor agrees that 1
notice on which ro make
Lenders anxLor Collateral Agent shall have 9tl class after receipt of such
refund or tither adjustment in order to corrc,:t vuch condition if in fact such cc.mdition
I
rppropriate
cxtsts. As used in this Paragraph (.12, 'interest' means any sum that must be treated as interest
I ,
under applicable law to dctermininE whether a Loan is usurious. TiIE TERM "APPLICABLE
S USED IP(THIS PARAGRAPH 6.12 S1IAI.l. MEAN THE LAWS OF THE STATE
LAW*
OF COIARA OR THE LAWS OF THE UNTTFD STAIT-F, WHICIIEVER LAWS ALLOW
TIIE (iRFA R RATE OF INTEREST, AS SI'01 LAWS NOW EXIST OR MAY BE
C1 JANGErIOR AMENDED OR COME INTO LiFFE(T IN T11E FUTURE
h.11. Notice. Any notice, request, demand or other communication required or permitted
hereunder, or under the Notes, or under any other instrument securing the pavrtent of the Notes
(unless otherwise expressly provided therein) shall he given i:; writing by (a) personal delivery, or
(h) expedited delivery service with proof of delover�, or (c) United States Mail, postage prepaid,
registered or certified mail• return receipt requested, or (d) prepaid telegram. telex or telecopy. sent
a; the intended addressee at the address shown on the signature page of this Deed of Trust, or to
such different address as the addressee shall have d-sr-iated by written notice sent in accordance
r
herewith, and shall (except as otherwise provided herc.n) he deemed to have been given and
received either 3t the time of personal delivery or, in the case of deliver service or mail, as of the
date of first attempted delivery at the address and inthe manner provided herein, or to the case
of telegram. telex or tciccnpy, upon receipt.
6.14. 5kcccssorj and Assigrs. fhe terms, provisions. covenants and conditions hereof shall
be binding upon Grantor, and the representatives, successors and assigns of Grantor including all
successors in interest of Grantor in and to all or any part of the Property, and shall inure to the
benefit of the Tnutcc and C illateral Agent and their respective heirs, successors, substitutes and
assigns and shall constitute covenants running with 'the land. All references in this Deed of Trust
to Grantor, Trustee or Collatc al Agent shall hel deemed to include all such heirs, devisees,
representatives, succrsors. substitutes and .assigns.
'
5.15. Scycrabili}y. A detc.minatkin that any provision of this Deed of Trust is
unenforceable or invalid shall not affect the enforceability or validity of any other provision and any
`
determination that the application of any provision of this Deed of Trust to any person or
circumstance is illegal of unenforceable shall not affect the enforceability or validity of such
provision as it may apply to any other persons or circumstances.
6.16. ender and Number. Within this Deed of Trust, words of anv gender shall be held
and construed to include any other gender, and words in the singular and plural number shall be
held and construed to include the other number, unless the cor'ext otherwise requires. \
r
6.17. Counterparts. This Deed of Trust may be executed in any number of counterparts
\
with the same effect as if all parties hereto had signed the same document. .VI such counterparts
shall be construed together and shall consctute onc instrument.
t,
6.1& Reporting Requirements. Grantor ae ees to comply with any and all reporting
�•
requirements applicable to the transaction evidenced by the Notes and secured by this Deed of
Trust which are set forth in anv law, statute, ordinance rule, regulation, order or determination of
4.
any governmental authority, and further agrees ,upon request of Collateral Agent to Furnish
%
Collateral Agent with evidence of such compliance.
6.19.jLcadin . The paragraph headings contained in this Deed of Trust arc for
convenience only and shall in no wav enlarge or :limit .he scope or meaning of the various and
p.
several paragraphs hereof.
6.20. Consent of Collateral Agent. F_xcent where otherwise provided herein. in any
instance hereunder where the approval, consent aii r the exercise of judgment of Collateral Agent
21j-
t
• 641*991
,•� ;,tiE,„��A• . b
i> !ryuired, the g,.tnting of d•"ay.d :.u: It LA or ronscnt and the cxerri,c of such judgntcnt 1�
.halt he within the sole di., r i".+. I' t "„if r :' A& -it. and Collateral Agcnt shall not, for am'
ryas In or to am vxtenl, he rcy n ' t: prcu %:t h appntval or consent or cxc'rctsc such judgmcnt it
in :ny patttcul.tt manner, tCc.c I1... 1•i tlu n"�"rmW,—nccs of either the request of Collateral
Ac-:nt's judLmi, m
r.,l. %fixitlicati(in t r lrt, n:r- m the I-in"tncing Documents may only he mtxlilied or �
tCrminatcd by it %amen ins:ii-mcnt nr rntruawmi cu•cuted by the party against whom enforcement
of the modifcation nr tcrminalaon i, x-sc•rted. Any :illeged modification or lcrrninmrt on which is
not so dttcumcnicd shall rntt '•• cllccttsc as to any party. +1
t.t
6.22 ENTIRE ACiRFFMEN1'. '11IIS DEED OF TRUST. TOGETHER WITH THE
PRUDENTIAL NOTE AGRI l Mt NT. 'I III LOAN AGREEMENT, THE NOTES AND THE
OTHER SECURITY DO( I" II-VIN (ALL AS IN FFFECT ON THE DATE HEREOF AND �
AS THE SAME MAY CI III RFAITI R fRo %f TIME '10 TIME) REPRESENT THE FINAL w ""
AGREEMENT BETWEEN 111E PARIIES AND MAY NOT BE CONTRADICTED B& i
LVIDENCEi OF PRIOR. C'ONJI-AWORANLILA'S OR SUBSEQUENT ORAL AGRFEMENTS
OF THE PARTIES. THERE ARL \U UNWRiTITN ORAL AGREEMENTS BETWEEN THE t
PARTIES.
6.23. Governing I.aw. 11IIS Dla?D OF TRUST SHALL BE CONTMIJED,
INTERPRETED, FiNFORCIA) AND (iOVERNIiD BY .AND IN ACCORDANCE WTTEI THE
LAWS OF 7111:. S'TATF? OF ('01.0RADO AND T111: LAWS OF 111F UNTIED STATES
APPLICABLE TO TRANSACTIONS WP1-1111� SUC711 STATE
IN WITNESS WHLRE(W. Grantor has 4ixccutcd this Deed of Trust, Assignment of Leases
and Rents, Security Agreement and Financing gtatemera on this 271h day of March. 199I, to he
j elTectivc as of January 15, I'MlI.
PACE FOODS, INC.,
a Texas corporation
Bs•:
R.1 ands
Title: Executive Vice President-Chicf'
Opctating Officer
Address: 3750 North Pan Am Expressway r
1 San Antonio. Texas 78219
t Ancntion: Kathy Maxfield
I
i
} STATE OF TEXAS
COUNTY OF BEXAR §
'11tis instrument was acknowledged before me on the 27th day of March, 1991, by R. J.
Sands, Executive Vice President -Chic( Operating Officer of Pace Foods. Inc., a TCAAS corporation,
on hehadf of said corlxttatinn. 1
i
My Commas. r Expirrs:
_s_- a % / , / , '/'.�.
Notan Public, Stale of Texas
Print name of Notary here
smnRA ). BROACH
!—.1 "rr oWK. State of r•."
ARIL t!. 1902
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w , . 643 904
Lots A and B. BEN DEANE "LOT SPLIT" SUBDIVISION, according to
the plat thereof recorded October 1, 1984 in Plat Book 16 at
Page 5 of the Pitkin County, Colorado Clerk and Recorder
Records.
1 0 / 1 L
Z.Ll
i
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1. The right f the prc,prietor of a vein or lode to
l
extract and remove his ore therefrom shculd the same
be found to penetrate or interse-=t the Real Property,
as reserved in Jnired States Patent recorded
October 29, 1892 in Book 55 at Page 32 of the Pitkin
County Clerk and Recorders Records.
` '3
2. Right of way granted to The Mountain States Telephone
and Teleqraph Co., recorded December 12, 1929 in
Book 162 at Page 172 of the Pitkin County Clerk and
Recorders Records.
3. An easement granted to George L. Vagneur and Alice F.
Vagneut for sole use and benefit of Lot 1 of Snobble
Subdivision, recorded in Book 188 at Page 231 of the
Pitkin County Clerk and Recorders Records.
A road right-of-way 25 feet vide affecting Parcel B as
reserved in the Deed from Michael Marolt to Craig
Lasley, recorded October 15, 1951 in Bonk 176 at
'
Page 117 of the Pitkin County Clerk and Recorders
Records.
5. Deeds of Easement granted to Aspen Metropolitan
Sanitation District and recorded in (i) Book 249 at
,
Page 343 of the Pitkin County Clerk and Recorders
Records, ani (ii) Book 251 at Page 962 of the Pitkin
County Clerk and Recorders Records.
^'
6. Easements and encroachment-, set forth in Ben Deane
"Lot Split" Subdivision Plat recorded in Plat Book 16
f
at Page 57 of the Pitkin County Clerk and Recorders
Records as follows:
(a) 20 foot fishing and hiking easement along
Castle Creek;
(b) Flood plane line affecting the westerly
land;
portion of said
(c) 24 foot driveway a1d utility easement over
Parcel B;
(d) Sewer easement affecting a portion of said
land;
(e) Encroachment of a Shed onto the sever line
easement; and
(f) Encroachment by overlap of the 24 foot drive
and utility easement onto the sewer
}�
easement.
`
1 e.
7. Terms, conditions and obligations of Declaration of
Covenants, Restrictions and Conditions for the Ben
Deane "Lot split" Subdivision, recorded October 1,
1984 in Book 474 at Page 206 of the Pitkin County
Clerk and Recorders Records.
8. Terms, conditions and obligations of Statement of
Exception from the Fii:l Subdivision Process for the
Purpose of the Ben Deane "Lot Split" Subdivision and
Exemption from the Growth Management Plat for a Single
643 '996
Family Dwo!'ing Thereon. recorded October 1, 1984 in
Po•jk 474 ar Pal;4 2^9 of the Pitkin County Clerk and
Recorders Racords.
9.
Any loss or darracle as a result of any possible a•erlan
-dith Castle Creek Subdivision, and any final
disposition regarding Civil Action Case No. 3448, as
shown on survey -onducted and p-epared by, Aspen Surrey
Er.gir.eers, Inc., dated January, 1991 as Job
No. 21001.
10.
Any question, dispute or adverse claim as to any loss
or gain of land as a result of any change in the river
_ed location by other than natural causes, or
alteration through accretion, reliction, erosion or
avulsion of the center thread, bank, channel or flo%
of waters in the Roaring Fork River lying within the
Real Property; and any question as to the location of
such center thread, bed, bank or channel as a legal
description monument or marker for purposes of
describing or locating the Real Property.
11.
Any rights, interests or easements in favor of the
riparian owners, the State of Colorado, the United
States of America, or the general Public, which exist,
have existed, or are claimed to exist in and cvor the
waters and present and past bed and banks of the
Roaring Fork River.
12,
Zonin7 restrictions, easements, rights of ways,
licenses,-estr:ctions on the use of real property or
minor irregularities in title thereto which do not
have a Material Adverse Eff9ct.
-2-
8 O I I L
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I -COX 474 PAGE206
DECLARATION OF COVENANTS, RESTRICTIONS AND CONDITIONS FOR
THE BEN DEANE "LOT SPLIT" SUBDIVISION
BEN DEANE and CASTLE CREEK ASSOCIATES, LTD., (hereinafter
"Covenantors") for themselves and for their heirs, personal repre-
senatives, successors and assigns, in consideration for the grant-
ing of an exception from the full subdivision process for the pur-
pose of creating two (2) separate lots as depicted on the plat for
the Ben Deane "Lot Split" Subdivision recorded in Book 1h Page
in the records of the Pitkin County Clerk and Recorder,
hereby covenant with the City of Aspen, Colorado (hereinafter
"City"), to restrict said property, and hereby do restrict said
property as follows:
1. Covenantors represent that they are the record title
owners of Lot A and Lot B of the Ben Deane "Lot Split" Subdivision
(hereinafter said lots shall be referred to as the "property"),
more particularly described on the plat therefor recorded
o" n �, f 1 , 1984, at Book IL Page rj r% in the
office of the Pitkin County Clerk and Recorder. -"Y-
2. Except for the single-family dwelling exempted from the
Growth Management Plan (GMP) by this "lot split" approach, no fur-
ther "lot splits" can be granted for the property and no addi-
tional units can be constructed without first obtaining GMP allot-
ment and necessary subdivision approval therefor, unless there is
no longer any GMP regulation in the City of Aspen.
3. In the event that any municipal improvement or improve-
ments of any kind contemplated in Section 20-16 of the Municipal
Code of the City of Aspen, as amended, became, in the sole judg-
ment or discretion of the City Council of the City of Aspen,
necessary or desirable to the area of the above described pro-
perty, covenantors will make no objection to any special assess-
ment or special tax or proceeding therefor on the basis that the
property is adequately served by existing improvements and/or on
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the basis that the premises will not be served or benefited by the
improvement or improvements proposed.
Covenantors further agree to join, upon the demand
therefor by the City, any special improvement district, urban
renewal district, or downtown development district formed for
construction of such improvements (including, without limitation,
signage, drainage, underground utilities, paved streets, planting,
curbs, gutters, sidewalks, street lights, berms, open space lands,
etc.) in the area of the above described property or to reimburse
the City of Aspen directly upon demand therefor if the City should
choose to construct these improvements without the formation of
such a district.
4. The Covenantors agree to provide a public trail easement
for uses including, without limitation, hiking and fishing, but
excluding all motorized vehicles as such uses are approved by the
City, from time to time. The legal description of this easement
is delineated on the aforesaid plat for the Ben Deane "Lot Split"
Subdivision, twenty (20) feet from the center of Castle Creek.
However, such easement shall not become effective until (i) adja-
cent landowners have granted a similar easement so as to provide a
continuous easement from the easement herein described to a public
right of way; (ii) the City shall indemnify and hold Covenantors
harmless against any loss or damage occasioned by the public use
of such easement and provide adequate insurance as reasonably
required by Covenantors to insure against the risk of such loss or
damage; and (iii) the City shall agree to maintain such easement
in a clean condition, free from all debris. The easement shall be
granted to the City and shall be restricted to customary public
trail use. The City may require an easement to be recorded only
upon the occurrence of all of the above described conditions.
5. .The covenants contained herein shall run with the land
and shall be binding on all parties having any right, title or
interest in the above -described property or any part thereof, and
their heirs, personal representatives, successors and assigns, for
2
•
474 Pa6E208
a period of fifty (50) years from the date these covenants are
recorded, with the exception of Paragraph 4. With respect to
Paragraph 4, said trail easement must be granted within a period
defined by the life of the longest -lived member of the present
City Council, plus twenty-one (21) years, or be automatically
void.
6. None of the covenants contained herein shall be released
or waived in any respect or modified or amended during the period
they are binding without the prior consent of the City of Aspen
reflected by Resolution of the City Council of the City of Aspen.
7. This Declaration shall be binding upon the parties here-
to, their heirs, successors, personal representatives and assigns.
IN WITNESS WHEREOF,7 this Declaration has been duly executed
this day of i ,:.,,� ,
�[L 1984.
Ben Deane
CAST EEK SOCIATES, LTD.
By r
Ben Deane, Genera Partner
STATE OF COLORADO )
ss.
County of Pitkin )
The foregoing was acknowledged before me this .,i'� F..' day of
�Qr.rr1�LL' , 1984, by Ben Deane.
WITNESS MY HAND AND OFFICIAL SEAL.
w_My commission expires:
Notary Public
Address
STATE OF COLORADO )
ss.
County of Pitkin )
The foregoing was acknowledged before me this day of
�. , 1984, by Ben Deane as General
Partner or Castle Creek Associates, Ltd.
WITNESS MY HAND AND OFFICIAL SEAL.
%
My commission expires:
Not ryJ Public
-
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':00K 474 PAGE299
_
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STATEMENT OF EXCEPTION
L A
FROM THE FULL SUBDIVISION PROCESS
FOR THE PURPOSE OF
THE BEN DEANE "LOT SPLIT"
SUBDIVISION AND
EXEMPTION FROM THE GROWTH
MANAGEMENT PLAN FOR A
SINGLE-FAMILY DWELLING THEREON
WHEREAS, BEN DEANE AND CASTLE CREEK ASSOCIATES, LTD., (here-
inafter "Applicants"), are the owners of a parcel of real property
(described hereinafter as parcels A and B) situate in the City of
Aspen, Pitkin County, Colorado, more particularly described as
follows:
Parcel A:
A parcel of land being situated in Lot 3 of Section 12, Town-
ship 10 South, Range 85 West of the 6th P.M. described as
follows: Commencing at a point being a brass cap as set for
the Northeast corner of the Southeast one -quarter of the
Northwest one -quarter of said Section 12, dated 1954; thence
North 46'25' West 79.52 feet to a point used as the Northeast
corner of Lot 3 of said Section 12 as located and used before
1954; thence North 84'14' West 214.00 feet to the Northwest
corner of the Adams tract as shown on the plat of Snobble
- Subdivision filed in the office of the Clerk and Recorder of
Pitkin County, Colorado, in Ditch Book 2A at Page 248; Said
S point being THE TRUE POINT OF BEGINNING; thence South 0'54'
East 150.00 feet along the West line of said Adams tract to
the Northwest corner of Lot 1 Snobble Subdivision; thence
South 84'14' East 43.00 feet along the North line of said Lot
1; thence South 15'12' West 73.51 feet to the Northwest cor-
ner of Lot 2 Snobble Subdivision; thence South 11'05' West
110.19 feet along the West line of said Lot 2; thence South
25'37, West 96.27 feet along the West line of Lot 3 Snobble
Subdivision to the Northwest corner of Lot 1 Bear Subdivision
as shown on plat of Bear Subdivision filed in the office of
the Clerk and Recorder of Pitkin County, Colorado, in Plat
Book 3 at Page 83; thence South 2'54' West 67.08 feet along
the Westerly line of said Subdivision; thence North 74'06'
West 11.84 feet along said Westerly line; thence South 15*54'
West 18.00 feet along said Westerly line; thence South 74'06'
East 16.00 feet along said Westerly line; thence South 18'29'
West 76.52 feet along said Westerly line; thence South 44'38'
West 52.11 feet along said Westerly line to the Southwest
corner of Lot 2 Bear Subdivision; thence North 65'21' West
326.00 feet to the centerline of Castle Creek; thence North
0'02' East 82.12 feet along said centerline; thence North
26'34' East 129.95 feet along said centerline; thence North
20'32' West 213.50 feet along said centerline; thence North
46'14East 163.30 feet along said centerline; thence South
84'14' East 229.00 feet to the True Point of Beginning.
EXCEPTING FROM that portion described as Parcel "A"
A tract of land located in Lot 3, Section 12, Township 10
South, Range 85 West of the 6th P.M., and being part of that
tract described in Document No. 104549 in Book 178 at Page
251 of the records of Pitkin County, Colorado. That part
being more fully described as follows: Beginning at a point
whence the NE corner of the SE 1/4 of the NW 1/4 of Section
12 (being a brass cap in place dated 1954) bears N 34'35'20"
E. 657.49 feet and the NE corner of Lot 3 as used before 1954
bears S 65'21' E. 359.93 feet and N 00'54' W. 746.00 feet;
thence starting from the point of beginning of the tract
r�
K 474 PAGE210
herein conveyed N 65'21" W. 326.00 feet to the centerline of
Castle Creek; thence N 00'02' E. 82.12 feet along the center-
line of Castle Creek; thence N 26'34' E. 129.95 feet along
the centerline of Castle Creek; thence S 65'21' E. 333.67
feet; thence S 02'54" W 67.08 feet; thence N 74'06' W. 11.84
feet; thence S 15'24' W 18.00 feet; thence S. 74'06' W.
16.00 feet; thence S 18'29' W. 76.52 feet; thence S 44'38' W.
52.11 feet to the point of beginning.
Parcel B:
A tract of land located in Lot 3, Section 12, Township 10
South, Range 85 West of the 6th P.M., and being part of that
tract described in Document No. 104549 in Book 178 at Page
251 of the records of Pitkin County, Colorado. That part
being more fully described as follows: Beginning at a point
whence the NE corner of the SE 1/4 of the NW 1/4 of Section
12 (being a brass cap in place dated 1954) bears N 34'35'20"
E. 657.49 feet and the NE corner of Lot 3 as used before 1954
bears S 65'21' E. 359.93 feet and N 00'54' W. 746.00 feet;
thence starting from the point of beginning of the tract
herein conveyed N 65*21' W. 326.00 feet to the centerline of
Castle Creek; thence N 00'02' E. 82.12 feet along the center-
line of Castle Creek; thence N 26'34' E. 129.95 feet along
the centerline of Castle Creek; thence S 65'21' E. 333.67
feet; thence S 02'54' W 67.08 feet; thence N 74'06' W. 11.84
feet; thence S 15'24' W. 18.00 feet; thence S. 74'06' W.
16.00 feet; thence S 18'29' W. 76.52 feet; thence S 44'38' W.
52.11 feet to the point of beginning.
County of Pitkin, State of Colorado.
WHEREAS, Applicants have requested an exception from the full
subdivision process for the purpose of doing a "lot split" subdi-
vision and an exemption for the Growth Management Plan (GMP) for a
"lot split" single-family dwelling on the above described pro-
perty; and
WHEREAS, the Aspen Planning and Zoning Commission, at its
meeting of July 5, 1983, recommended that such exception and
exemption would be appropriate and recommended that the same be
granted subject to certain conditions; and
WHEREAS, the City Council, at its meeting of July 25, 1983,
determined that such "lot split" subdivision exception and GMP
exemption was appropriate and granted the same, subject, however,
to certain conditions;
NOW, THEREFORE, the City Council of Aspen, Colorado, does
determine that the owners' application for exemption from the full
subdivision process for the purpose of effecting a "lot split"
subdivision and a GMP exemption for a single-family dwelling on
the above described property is proper and hereby grants an excep-
C]
: ( 474 PxF211
tion from the full subdivision process and the GMP exemption for
such lot split;
PROVIDED, HOWEVER, that the foregoing exception and exemption
is expressly conditioned upon: (1) the Applicant's recording with
the Pitkin County Clerk and Recorder a subdivision plat for the
Ben Deane "Lot Split" Subdivision, approved by the City Engineer,
together with "Declaration of Covenants, Restrictions and
Conditions for the Ben Deane 'Lot Split' Subdivision" dated
c4rntl,QnJ ax7 1984, and (2) the Applicants' strict
compliance for themselves and their heirs, personal
representatives, successors and assigns, with the provisions
contained therein and all other binding conditions of approval on
this matter set by the Planning and Zoning Commission and the City
Council.
DATED THIS r ;' day of ? , 1984.
William L. String, May
Kathry S.,)(och, City Clerk
APPROVED AS TO FORM:
r � �
Paul J. Tacjdune, City Attorney
I, KATHRYN S. KOCH, do hereby certify that the foregoing
Statement of Exception from the Full Subdivision Process and GMP
Exemption for the purposes of the Ben Deane Lot Split was con-
sidered and approved by the Aspen City Council and the Mayor,
William L. Stirling, was authorized to execute the same on behalf
of the City of Aspen.
Kathryn S..Koch, City Clerk �-
1 J
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GENERAL WARRANTY DEED m �
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ELIZABETH D. CUTLER, whose address is 1507 Park
Avenue, Monroe, Louisiana 71201, for the consideration of Ten
Dollars ($10.00), and other good and valuable consideration, in
hand paid, hereby sells and conveys to PACE FOODS, INC., a
Texas corporation, whose address is P.O. Box 12636, San
Antonio, TX 67812, the following real property in the County of
Pitkin, State of Colorado, to wit:
LOTS A AND B, BEN DEANE "LOT SPLIT" SUBDI-
VISION, according to the Plat thereof,
recorded October 1, 1984 in Plat Book 16 at
Page 57,
also known by street and number as 700 Sneaky Lane, Aspen, CO
81611,
with all its appurtenances, and warrants the title to the same,
subject to and except for the following:
1. General taxes for 1988 and thereafter, payable
in 1989 and thereafter;
2. Right as reserved in United States patent
recorded in Book 55 at Page 32;
3.
Right of
Way recorded in Book
162
at Page 172;
4.
Easement
recorded in Book 188
at
Page 231;
5. Road Right of Way as reserved in Deed recorded
in Book 176 at Page 117;
6. Easements recorded in Book 249 at Page 343 and
in Book 251 at Page 962;
7. Easements and encroachments set forth in Ben
Deane "Lot Split" Subdivision Plat recorded in Plat Book 16 at
Page 57;
8. Terms, conditions and obligations of Declaration
of Covenants, Restrictions and Conditions for the Ben Deane
"Lot Split" Subdivision, recorded in Book 474 at Page 206;
9. Terms, conditions and obligations of Statement
of Exception from the Full Subdivision Process for the purpose
of the Ben Deane "Lot Split" Subdivision and Exemption from the
Growth Management Plan for a single family dwelling thereon,
recorded in Book 474 at Page 209;
06-06-95_ : 1201 ID=930 482 P.03
• . 1. ' . it • Boox 564 PAGE 31(�
•
•
0
all reference being to the real property records of Pi.tkin
County, Colorado.
SIGNED this day of May, 1988.
LOUISIANA
STATE OF *X*XXXXX )
PARISH OF OUACHITA
The foregoing instrument was acknowledged before me
this day of May, 1988, by Elizabeth D. Cutler.
WITNESS my hand and official seal.
My commission expires:
(SEAL) �— a �c �
�--
Notary Pu li
rwh28.09 '� r
O C:1 IN
Dom,
PUBLIC NOTICE
RE: GOLDSBURY CONDITIONAL USE REVIEW FOR AN ACCESSORY DWELLING
UNIT
NOTICE IS HEREBY GIVEN that a public hearing will be held on
Tuesday, August 8, 1995 at a meeting to begin at 4:30 pm before the
Aspen Planning & Zoning Commission, 2nd Floor Meeting Room, City
Hall, 130 S. Galena, Aspen to consider an application submitted by
Kit Goldsbury, Aspen, CO, requesting approval of a Conditional Use
Review for an approximately 516 square foot Accessory Dwelling Unit
within an existing single family residence. The property is
located at 700 Sneaky Lane; Lots A & B, Ben Deane Lot Split. For
further information, contact Leslie Lamont at the Aspen/Pitkin
Community Development Department, 130 S. Galena St., Aspen, CO
920-5101.
9/Bruce Kerr, Chairman
Planning and Zoning commission
•
•
ASPEN/PITKIN
COMMUNITY DEVELOPMENT DEPARTMENT
130 S. Galena Street
Aspen, Colorado 81611
(970) 920-5090 FAX# (970) 920-5439
June 29, 1995
Nicole Finholm
Finholm Architects
II1-L AABC
Aspen, CO 81611
Re: Goldsbury Conditional Use Review for an Accessory Dwelling Unit
Case A83-95
Dear Nicole,
I mistakenly informed you in my letter of June 28, 1995, that the Planning Commission would
review this application on Tuesday, August 1, 1995. The correct date of the meeting is
Tuesday, August 8, 1995. Please note this correction, and contact me at 920-5093 if you have
any questions.
Sincerely,
Suzanne L. Wolff
Administrative Assistant
apz.ph
•
•
ASPEN/PITKIN
CONPAUNITY DEVELOPMENT DEPARTMENT
130 S. Galena Street
Aspen, Colorado 81611
(970) 920-5090 FAX# (970) 920-5439
June 28, 1995
Nicole Finholm
Finholm Architects
111-L AABC
Aspen, CO 81611
Re: Goldsbury Conditional Use Review for an Accessory Dwelling Unit
Case A83-95
Dear Nicole,
The Community Development Department has completed its preliminary review of the captioned
application. We have determined that this application is complete.
We have scheduled this application for review by the Aspen Planning and Zoning Commission
at a Public Hearing to be held on Tuesday, August 1, 1995 at a meeting to begin at 4:30 p.m.
Should this date be inconvenient for you please contact me within 3 working days of the date
of this letter. After that the agenda date will be considered final and changes to the schedule
or tabling of the application will only be allowed for unavoidable technical problems. The
Friday before the meeting date, we will call to inform you that a copy of the memo pertaining
to the application is available at the Community Development Department.
Please note that it is your responsibility to mail notice to property owners within 300' and to
post the subject property with a sign at least ten (10) days prior to the public hearing. Please
submit a photograph of the posted sign as proof of posting and an affidavit as proof of mailing
prior to the public hearing.
If you have any questions, please call Leslie Lamont the planner assigned to your case, at 920-
5101.
Sincerely,
�r
Suzanne L. Wolff
Administrative Assistant
apz.ph
•
ASPEN/PITKIN
COMMUNITY DEVELOPMENT DEPARTMENT
130 South Galena Street
Aspen, Colorado 81611
Phone (970) 920-5090 FAX (970) 920-5439
MEMORANDUM
TO: City Engineer
Housing Director
FROM: Leslie Lamont, Planner
RE: Goldsbury Conditional Use Review for an Accessory Dwelling Unit
Parcel ID No. 2735-122-01-006
DATE: June 28, 1995
Attached for your review and comments is an application submitted by Kit Goldsbury.
Please return your comments to me no later than July 14.
Thank you.
Q.NnaM
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EXTERIOR ELEVATIONS
SCALE: 1/4%1'-0-
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DATE: 6.6.95
REVISION:
DRAWN BY:
SHEET NUMBER:
4.3
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� A =G%T1CV I-CRZ1-1 i
1) Pr-ojcc-L N mc KIT G0LDSBURY
2) project IAcation 700 Sneaky Lane, Lot A, Ben Deane Lot Split,
Aspen, C.olorado 81611
(indicate street address, lot & block mmber, legal description wlexe '
appropriate)
3) Present Zoning R- 3 0 P.U.D. .4) I t Size 3. 2 3 0 8 a c r e 6
S) Appl icant' s Name, Address & Phone $ K I T G 0 L D S B U R Y (2 1 0) 9 3 0- 1 2 5 1
200 Concorde Plaza, Suite 620 San Antonio, TX 78216
6) Representative's lZame�, Z3C .t & Ft-xocy-- f FINH0LM & FINH0LM ARCHITECTS, INC.
111-1, AABC, Aspen, Colorado 81611 (970)925-5713
7) Type of Application (Plea -Se Check all that apply):
Conditional Lase Carceptual SPA Cbc al Historic Dev-
Final SPA
8040 Q-eenline
Final PUD
Mo mta.in Viesw Plane
Cxx-r3om-iniur:iisation '
%t Spli viat Line
Adjustment
Final Historic De r-
Mirror Historic Dev-
Historic Demolition
Historic Designation
GZ-Q5 Allotment
8) Descri-pta-on of Existing Uses -(number and type of eorist stzuctures;
approximate sq_ ft- ; rx=ber of bed; any previous appro I 91-,,U� to the
Single family residence - 6870 s.f., 6 bedrooms including existing
caretaker suite. (488 so ft) on Lot A Ben Deane Lot Snlit
9) Description of Development Application
Conditional use approval for an existing 'bandit unit' to legal
caretaker, deed restricted unit.
10) I iaYe you attached the followiir_f'
Remsp e to Attachment 2, minim= emission 000tents
Izespoetse to Attach ant 3, Sjx cifis ion OCntCnts
�- Ike to Attadhment 4, Reviesj Standards fox Your Application
June 07, 1995
City of Aspen
Building/Zoning Departments
130 South Galena Street
Aspen, CO 81611
Re: Remodel and addition to 700 Sneaky Lane, Aspen, CO 81611
TO WHOM IT MAY CONCERN:
This remodel/addition was originally submitted in May, 1989 with Lot A and Lot B
combined to allow land area large enough for 9170 square feet. We were legalizing
the existing caretaker suite through a duplex zoning, at that time the conditional use
approval for accessory dwelling unit was not available. Everything was approved at
that time but due to unforeseen circumstances, the owners chose not to pull the permit.
The approvals have since expired. We have reduced the scope of work and are now
submitting the remodel with a smaller addition within the Single Family R-30 P.U.D.
zoning for Lot A only. We are applying for a conditional use approval for accessory
dwelling unit for the existing 'bandit unit'.
We have met with the City Attorney, Dave Bellack, and have received the o.k. to
present under Resolution number 95.35 as approved by the City of Aspen Planning
and Zoning Commission on May 09, 1995. Our land area calculations as well as
F.A.R. are based on that resolution.
If you have any questions on this matter, please do not hesitate to call me.
Sincerely,
Nicole Piercy Finh
Architect
F I N H O L M
a F I N H
(D
L. M
ARCH ITECTS , I NCORPORA-TEI]
AIA
POST OFFICE BOX 2639
ASPEN, COLORADO
61612
TELEPHONE 303-925-571 3
FACSIMILE 303-920-4471
06-06-95 10:34 ID=930 24e2
_P.02
•
•
0
Kit Goldsbury
200 Concorde Plaza
Suite 620
San Antonio, TX 78216
June 01, 1995
City of Aspen
130 South Galena Street
Aspen, CO 81611
Re: Conditional use application for
caretaker dwelling unit
TO WHOM IT MAY CONCERN:
I own Lot A and Lot B, Ben Deane Loi Split, Aspen, Colorado, commonly known as
700 Sneaky lane, Aspen. Colorado 81611 and 1 hereby authorize David Finholm and
Nicole Plercy Finholm of Finholm & Finholm Architects, Inc., 111-L Aspen Airport
Business Center, Aspen, Colorado 81611 (970)925-5713 to represent me In this
application.
4-q
it Golds ury
200 Conclorde Plaza
Suite 620
San Antonio, TX 78216
(210)930-1251
Date
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DRAWN BY:
EXTERIOR ELEVATIONS SHEETNUMBER:
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GENERAL WARRANTY
DEED
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ELIZABETH D. CUTLER, whose address is 1507 Park
Avenue, Monroe, Louisiana 71201, for the consideration of Ten
Dollars ($10.00), and other good and valuable consideration, in
hand paid, hereby sells and conveys to PACE FOODS, INC., a
Texas corporation, whose address is P.O. Box 12636, San
Antonio, TX 67812, the following real property in the County of
Pitkin, State of Colorado, to wit:
LOTS A AND B, BEN DEANE "LOT SPLIT" SUBDI-
VISION, according to the Plat thereof,
recorded October 1, 1984 in Plat Book 16 at
Page 57,
also known by street and number as 700 Sneaky Lane, Aspen, CO
81611,
with all its appurtenances, and warrants the title to the same,
subject to and except for the following:
1. General taxes for 1988 and thereafter, payable
in 1989 and thereafter;
2. Right as reserved in United States patent
recorded in Book 55 at Page 32;
3.
Right of
Way recorded in
Book
162 at
Page 172;
4.
Easement
recorded in Book
188
at Page
231;
5. Road Right of Way as reserved in Deed recorded
in Book 176 at Page 117;
6. Easements recorded in Book 249 at Page 343 and
in Book 251 at Page 962;
7. Easements and encroachments set forth in Ben
Deane "Lot Split" Subdivision Plat recorded in Plat Book 16 at
Page 57;
8. Terms, conditions and obligations of Declaration
of Covenants, Restrictions and Conditions for the Ben Deane
"Lot Split" Subdivision, recorded in Book 474 at Page 206;
9. Terms, conditions and obligations of Statement
of Exception from the Full Subdivision Process for the purpose
of the Ben Deane "Lot Split" Subdivision and Exemption from the
Growth Management Plan for a single family dwelling thereon,
recorded in Book 474 at Page 209;
06-06-95- 12:01 • ID=930 2462 P.03
!I B00H 564 PAGE31�
•
•
0
all reference being to the real property records of Pztkin
County, Colorado.
SIGNED this day of May, 1988.
LOUISIANA
STATE OF J0UUULVJW )
PARISH OF OUACHITA
t� The foregoing instrument was acknowledged before me
this # day of May, 1988, by Elizabeth D. Cutler.
`WITNESS my hand and official seal.
My commission expires:
( SEAL) (I �( � d—
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