HomeMy WebLinkAboutLand Use Case.CU.700 Sneaky Ln.A83-95CASELOAD SUMMARY SHEET
City of Aspen
DATE RECEIVED: 6,119 PARCEL ID AND CASE NO
DATE COMPLETE: ` 2735 - 122 -01 -006 A �.�95
STAFF MEMBER: LL
PROJECT NAME: GOLDSBURY U
Project Address: 700 S AKY LANE
Legal Address: LOT A BEN DEANE LOT SPLIT
APPLICANT: KIT GO LDSBURY
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 ST _ XX 2 STEP:
P &Z Meeting Dat PUBLIC HEARING: ES NO
VESTED RIGHTS: Y NO
CC Meeting Date
PUBLIC HEARING: YES NO
VESTED RIGHTS: YES NO
DRC Meeting Date
REFERRALS:
City Attorney
City Engineer
Parks Dept.
Bldg Inspector
School District
Rocky Mtn NatGas
Housing Dir.
Fire Marshal
CDOT
Aspen Water
City Electric
Holy Cross
Mtn. Bell
Clean Air Board
Open Space Board
Envir.Hlth.
ACSD
Other
Zoning j
DATE REFERRED: .� Z
Energy Center
INITIALS:
other
DUE: i
FINAL ROUTING:
-- ------ ----- - - - - --
DATE ROUTED: I � INITIAL
_ City Atty _ City Engineer
Housing _ Open Space
FILE STATUS AND LOCATION:
_Zoning _Env
Other:
Health
MEMORANDUM
TO: Stephen Kanipe, Chief Building Official
FROM.: Stan Clauson, Community Development Director
DATE: June 20, 1996
ASPEN • PITKIN
COMMUNITY DEVELOPMENT DEPARTMENT
RE: Goldsbury Accessory Dwelling Unit Conditional Use
Insubstantial Amendment of Development Order
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:
I. 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 ermit issuance.
APPROVED <" !'
AN 21 1996
Stan Clauson, Community Development Director
COMMUNITY pEyEtC;,htENiDIRECiOq
CITYOFASPEN
130 SOUTH GALENA STREET ASPEN, COLORADO 81611 -1975 PHONE 970.920.5090 � FAX 970.920.5439
PrInIN on Re ycled Paper
SUN 19 1 96 08 :59AM ASPEN,''OUSING OFC
TO: Bob Nevins, Community Development Dept.
FROM: Cindy Christensen, Housing Office
DATSr June 19, 1996
RE# Goldsbury ADU Review
Parcel ID No. 2735- 122 -01 -006
P.c
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 contain not leas tdan three hundred (300) square feet aF agawaae floor
area and cwt more than amen hundred (700) square feet of allowable floor 81*11L The unit shall be
deed restdcted meeting the housing authority's guidelines for resident orxuped units and shall be
limited to rental periods of not less than ssk (B) martins in duration. Owners of the lXhdPW residence
shat have the right to place a quatfied 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.
RECOMMMIDATION: 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:
Kitchen - For Accessory Dwelling Units and Caretaker Dwelling Units, a minimum of a two- burner
stove with oven, standard sink, and a S -CLINC That reirigeratar plus ffee2M.
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 Housing office.
r0[arrA1\go1d9.adU
=RECEWE
PERRY & GIRARD ARCIII "LECTURE AND INTERIOR DESIGN 2815 FERNDALE ST. HOUSTON, TEXAS 77098
GOLDSBURY RESIDENCE 06 -04 -96 FAR CALCULATII
PROJECT NO. 2195 Page 1
JA LOT F.A.R. CALCULATIONS
Lot area A - 3.2308 ac. 140,734.00 SF
Lees area for river - 6.406.00 SF
Area for use for F.A.R. calculations 134,328.00 SF
Allowable area 50,000 SF 6,600.00 SF
Additional floor area 2 SF 1100SF 1,687.00 SF
TOTAL ALLOWABLE F.A.R. 8.287.00 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
,I
Accessory dwelling unit with credit
(890 - 700) + (350)
Connector to guest house
6 x 10 credit
Guest house
TOTAL F.A.R. @ NEW CONSTRUCTION
0
1050.00 SF
150.75
94.00
(60.00)
3293.00
270.00
(60.00)
1496.00
366.00
X540.00
233.00
(60.00)
973.00
8285.75 SF
m� - 1 TEL (713) 52)•8494 I�
FAX(713)523.8497 _''�::_I
GOLDSBURY RESIDENCE 06 -04 -96
PROJECT NO. 2195
AREA AT BALCONIES & TERRACES
I
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 & 02 228.13
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
Master bedroom
TOTAL
AREA BALCONIES & TERACES
93.47
1243.05 SF
150.75
Living room
GROSS
AREA NOT INCLUDING
3.0 ABOVE:
Guest rooms 01 & 12
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 01 & 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 ARA FOR DECKS, BALCONIES. TERRACES, STAIRSt
8287.00 x 158 - 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) s
101.50
SF
Caretaker porch (revised 06- 13 -96) =
48.24
SF
s CARETAKER ACCESSORY DWELLING UNIT
Living unit (revised 06- 13 -96)
'89124.
4mr,
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W-2 .S7
RESOLUTION OF THE ASPEN PLANNING AND ZONING COMMISSION FOR THE
APPROVAL GOLDSBURY F RESIDENCE 700 SNEAKY LANE (LOT A, BEN DE SPLIT)
CITY OF ASPEN
Resolution No. 95 - - Z2--1
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
ning
WHEREAS, the proposal and city Engineer,
recommended and the
Office reviewed the he p ro p
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:
�1'l� x�'1 �1
Sharon Carrillo, Deputy City
% -r - q ' �S I
Planning and Zoning commission:
Clerk Q_hO,� 0- � J
-22 -�5
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
`a
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
JUL 18 'S5 10 :14AM ASPEN HOUSING OFC
P.1
EXHIBIT A '
TO: Leslie Lamont, Community Development
FROM; Cindy Christensen, Housing Office
DATE: duly 18, 1995
RE: Goldsbury Conditional Use Review for an ADu
Parcel IV No. $735- 12a -01 -006
IsBDS The applicant is requesting to 516 square foot, one bedroom
accessory dwelling unit, to be located on the main floor of the
principal residence.
BSQII@RODND 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 Authority Ia guidelines for resident
occupied units and shall be limited to rental periods of not leas
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.
R8aG101Bl Fxos 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 stove with oven, standard sink, and a
6 -cubic foot refrigerator with freezer.
r r
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:
L 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 GNP 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.
1
n: 647 962
DEED OF TRUST. ASSIGNMENT OF LEASES AND RENTS.
SECURITY AGREEMENT AND FINANCING STATEMENT
I
STATE Of COLORADO S
KNOW ALL MEN BY THESE PRESENTS:
CO"'TY OF PRKIN 4 ? f sf�
7+ L
THAT, PACE FOODS. INC., a Tam mrpora¢on (hereinafter called 'lit t '). having its
principal office at 3750 North Pan Am Expressway. San Antonio. Texas 71'_19, in order to saute
t� the payment of the indebtedness hereinafter referred' to and the performance of the obligations. r i
;cxcnms, agreements and undertakings d Grantor hereinafter described. does hereby GRANT.
?IOP.TGAGE. BARGAIN, SELL CONVEY. TRJ1`vSFER. ASSIGN and SET OVER to the '
` PUBLIC TRUSTEE of PII7:IN COUNTY. COLORADO (hereinafter called the "Trinicc ') for
the benefit of NCNB TEXAS NATIONAL BANK.' national banking association (hereinafter
talk: " NCNB Teas having its principal office at AA Main Street. Dallas. Texas 75_02, as the t;
collateral agent (hereinafter i i ts capacity as collateral agent NCNB Tees's called the' allater I j.{
`
ACM' on behaif of NCNB Taus and TIfE PRUDENTIAL INSURANCE COMPANY OF
.4-MERICA (hereinafter collectively calk: ' all of the real mute situated in the County
of Ptkin and Suns of Colorado described in Exhibit �A' attached hereto and made a pan hereof
i - I the " an.f: with (i) the Land and the property and rights described in items (i) through (a) of this ,.
r .l paragraph below being referred to herein as the 'Real Property and (ii) the Land and the property
and right described in items (i) through (xiii) d lo
this paragraph below being referred to herein a t4
the'poperlyr). together with (i) all the buildings and other imp,, en
emts now on or that may be
hereafter placed on said Lad: (ii) Grantor's interest in all materials. equipment. fsturm or other ' t
property whatsoever, now or hereafter attached to, insta" in. or used in connection with the
buildings and after improvements row erected m hereafter to be erected on said Land, including.
�'•, but not limited to all heating, plumbing. lighting, water heating. cooking. laundry, refrigerating,
incinerating. ventilating and sir conditioning equipment disposals, dishwashers, refrigerates and
�{ nngc_. a -ility lines and equipment (whether owned individually or jamly with mhcn), sprinkler 1 h
:•stems. fire eshnguishing apparatus and equiptnrnm water links, e.tprim. machines, elevators.
notom cabinem shades, blinds, partitions. window saeeus, screen doom storm windows. awnings.
drapes. and rup and other Boor coverings. and all fonuret accessions and appurtenances theteto.
and all m newels m replacements of or substitutions for any of the foregoing. all of which property r
' and things are declined o be pia manent fixtures and accessions to the freehold and pan
v of the malty herein a security for the indebtedness herein mentioned: (iii) Grantors
interest in a'✓easements and rights d way now or hereafter used in connexion with am d the
Wrcaoing.acal estate or a a means d ingress to or egress from said real mute: (iv) Grantors
s irterest now or hereafter aquired. in and to any streets. ways, alleys andNr stripe and gores d LS
land adjoining said Land or any pan thereof. (v) Grantor's interest now or bereaftet acquired, in
all minerals. soot timber. trees, shrubs. now n; and landscaping plans and materials. now or
hereafter located on, under or above the Land: (vm), Grantor interest. now or hereafter acquired..
i in all developmem rights associated with the I-And, now existing or hereafter transferred to the
L from other caul propan: (vu) Grantor i interest, now err hereafter acquired in all water and t
ware: rights d:lch and ditch ruts. wells and well rights. well permits, springs and spring rights. and
rurvvnin rights. appurtenant rcwr,& righ appurtenant to or historically used in connection with the Land and ,..
all d Gransuri rights and interests under applicable state in federal law to all water, and to use s
m consent to me an water. contained in or available ftmn. any pan d the water- bearing formatbm .;.
..dcry;ng the Land, together with associated casements and rights of way: (viii) Grantor i interest SM
, err or 'cseafner acquired. in my and m rights o obtain water, W'sm and other services from arty
poem' district or other service distrim ('s) Gramorls interest now a hercafter acquired, in any and
an righu and estates in reversion or mWainder. (x) Grmtor i interim now or hereafter acquired.
in all rights. estates. hesednameas, powvs and prii leges appurtenant or incident to the foregoing:
(xi) an of Gnmor i right. title and m mint. now or hercafta soquired. in and to all good: s
equipment furnishulfaw artwortt fodures, furniture. chanch cwncd by Grantor now or hereafter ?, -
attached or affixed to or used or bared in or albout the building or buildings now erected in
hemafler i be erected on the Revd Property. or otherwise located on the Real Property. Vdi) all ( of Grantor's rigfit title and imerw. now or Aereaf ter acquired• in and to an fmures, accessions and f
appenenm es o any of the foregoing or following: (vu) all of Grantor i right title and interest
now or hereafter acquired in and o all ternewals a replacenrnu ti su b s tit u tions for any d the '
foregoing m following: (des) erg d Grantor i right title and interest. now or hereafter acquired in r'
and to :.1 building materials and equipment now or hereafter delivered to said premises and :
intended to be metalled therms: (acv) all of Gramor's right title and interem now or bereafta ..
xyuirc.L in and to all occupstsey alp emmu. kmea. rams (including security and tither deposit '?P,
- IJ InOrt ,,I: TC ru II ',it, in M illy time
,is r:f I -, is sit. swid nit !s
rvou-s ca Ifs ; t it c- n,i r I -1�rt I , ! , re'er wore
,I t .,I r.,., nor, ..it, ", Pt 11 1 N I'll,,, , 'h, I tic and interest
r o a r , t 4 , 1 nnna 1 . ... .... irs, is I • "I'll II.I. I ", - I r -J.'red to 'n,'
aura I I ; lie uttaii, -,in :, :I' Utill. % 14 `sllkis Its wiled its !he Real Property
I I,tvur r r ehL .,it, in'! "I... sit "ri , r li. do r sured . in and r,l at (v!rm.tt
r w, ! I otil'. tic, .,pit rel I i - - I ing, rid all Inter rights and
r a ft I t ,d ts rosc, ti-sl ' b : As, R t'.11 I I IX 1 .:sil All I I (;[AnLors rvght. title art
no. I-r wont .1i:q to in,l to I ; dws.dr..irsins. W.:,. su•tc%s. repots,
-c Ind M in.IL'UnIcal t4 . sit ho I 1.! 0 1 ,sm,one, .,nsaru,i, .,it d,
I A, lllnl, n1IstAn1_' I,Lr -1:111. mrantics nd ithe, J.u:uni of
,j, t, sit I s,,, re sit Is,,. it vnc th;v —c , instruction upon. I „;.,,,otq, calling.
I lie 'It 1,7`C1 It, 1, lit Ite Rcid Pr rx!r, (,:, I ill , ir.,isrs tchi, title and I ...... i no,siss or
.it 1c.il r .": N., I , and to all ..l. g.t. wt and other minerals rrodaccd from
, r ated In the R,jl Prop ov and .dl po-dicts piss, ctscd or t6tained therefrom. the proceeds
ThLrvol, ard ell itct-unts aid gencril inT.Intifl---s under which such pnci may arite, less) all of
Grantor' se title ;,nd rnereq. not I,, hereafter acq in and to all postelvdi Irom the taking
rI, 11' t he Peal Profit riv r ins, st lh,-rcin by rieto (.: (nimeril domain or by
:,fittos or ilihstr pt.rchaw in lieu r]teircw ;xxii all of to inter , reht. laic and rocric%t. now or
h,r,-jltcr asquirt,rd in and I all pir,celodi including pri-mium r•funidV 01 each INIIII-N of Insurance
_.Lomic t” ine R_ it Polreo%. rxuu all I I 6rarotri ?schl. side and Interest. to.. sit hereafter
'CutmCd. in Intl to ill eimarsicci, sureties and other otresiments asitunnat pert of anv
Hi of ani temirit of :he Rc.d P•.i1xit and ivol) All of ii;r.ot(ir's lelit. lidt, Ind interest,
r•, or hcrc;Lft-'. cut red. in and is) rt;l pltst ansine from Is by i of the sale. licacia, or
disposition of the Real Propcos and all po slc and products or :h:: Pir•periv, Ttl have and
Iwill the Propcov wish A and mCu,m IhJ privileges. hcredw and Tpu"enarrecs therein
belong unit, the It and to kii lui,(c,,$)rs and assassins forever, And Grantor hereby grants
to Collateral Agent a w.cunly inlcm%t and hen in -iramon right. title and inii in and to all
present and future Property in order lossesure ih- rasimcirt W the indebtedness hereinafter referred
to and the performance of the oAicitiont, covlostisti agreements and undertakings hereinafter
described.
AR I it LF
Secured
1 I. Secured Indebtedness This Dcvd of Trust. Aoisignment of Leases and
Security Agreement and Financing Statement (lacoviatafter called this 'Deed Ill Trust') is made 11)
secure and enforce 1"c Fastrinsim of the follosing notes. agreements, documents, ohligaliqni
indebtedness and liabilities: (a) one certain ;note agreement of ir date herewith by and bicrat
The Prudential Insurance Company of Arr ices, as purchaser (hereinafter called mc?_ruderttwn.
and Grantor to letter, thercinatter said purchasue agreement is called the "Prudentia! Note
AgEcemsLint'). ; The Piouldcotial suhjjj ct to the tc.ms and conditions therein set forth, has
agreed to purchase lhr.w certain pr amiss on notes of even date herewith in the original saggregaut, as
principal announi of Forty -Five Million and ni Dollam (S45.0()0.0(X)0O) executed b) Grantor
and pavabic to the wder of The Prudent a]. with interest at the rates therein provided. both
principal and interest I)i payable as [here in provided and containing provisions for the payment
of a(tormeNi fees, as in renewed or !xended from time to time. and all other notes given
in substitution therefor or in modification, arrangement, increase, renewal or extension thereof.
m. whole or in part said notes and ores given in isuirnoilution therefor or in modification.
rearrangement, increase. rcricital o. wensIpn thereof. in whole or in part (hereinafter called the
'Prudential Notes"L N one certain loan i nt of even date herewith his and between NCNB
Texas, as tenter, and Grantor, as tvitrosIterl
(hereinafter called the 'Loan Airricerricirt'). consisting
,
of a term note in he principal amount of Ten Milli n and no/10C. Dollars (SiO.000.00UO),
executed by Grantor and pisable to the order of NCNB Texas, with interest at the rates therein
!ip I ;n, aI and Interest theIng I VIrable as t!tIcrein pronided, as modified, re.mnecid. or
vnJed i
from time ill 1-m-- (he i,d lt• T ; . Note'). and a re,tobrine nctc. hcrche
NCNB Texas. subject : the terms and ri hirtem set forth. hie, agreed to m:ikc advances
is, Bounmrit In the dgeticate amount not 14i cx-.ced at am lime Ten Million and .,: If" Dollars
w ith interest at the rates ther,rn provided. both principal and interest being
p.t%aHc as therein provisdl( J, ot misdiFied ten -w or c,,ndcd from time to time (hecmafzcr called
:f
r,a
N_ ncrr:nafser the P ado n'. ai '4ota :bc Icrn ] it. aid the Revolving Note
and .cdrhtcdnus and cam :s Incurred or arising
i :his Leed , d 1 1 :a1. a at her xcun:a 1l•• :umer as defined in the
m :• :x pr s -s
c Ac :f nee and the Iran .lien t v- nl :hereinafter , the ``_vita Diwum - ),
-r , _ llilrr n'.mng u, the , f -- �, rnlscd mdehtWncss or �nv ether instrument now
c:cr �, ]_.,.n¢. gosemme. •c r.nq. n ahcrwiu relating ti.e aheve described
t ea o- .ins (tit them t wh. i ^u a n ,rhos. . Le vu a ha! a he d.reet or indirect.
, .r % c wtat. lu d ar o•nunecm. ,cod wee h r : payable to
s -r to ., '.`,nd parts' and suha-quectic s.quacd by Lcndcn and whether such dchis.
fy
.cod n '.lrr," a'e cvdenccd h'. n, ic, ,pcn account. Oit'Id:.att, endorsement, surety
I.
e :.. 11 1111 ,-1h,-rw11e life mdchtn!n,, t,Ie,,cd to to this Paraeraph 1.1 is hereinafter
rig
.rr n,, c the cac�r,d InJsht gl nevi 'Ibis Deed or 'rant and the votes. thf. Prudential
V'
.J
'cu'v D „stem nos, executed of even dale
- No Nor ni,r.L 'h; Iran lgrcement. and „ t her An
..
ime'n, Blamer and lcndcr , r between Grantor and 1 Prudential or he(weCA Grittier
y
%( \B Tccn. .rd ail Other mtttnmcnB C[ttlt F: at L dlltd hits or documcnu cyidendn¢.
t
. e nvr rtimcing or. rclnmg u the Sec•: rcil Ind. Mrdncv, a-c hercmMICr called
`j
.. tin a.,iuy I) uncnis'. ('aim iigh's. Icndurt in respcet �t the Financing Documents are
crorJ hs ihr tenor „i .m In rFrnliu,r \crrrment. of .'stn door hereof: h. Ix'tween The
and N - 7•(1 rt'sn h remalicr ..W,d t1: - jets t' c.! q ' \jrrCLfnCJ :I - 1.
, _6
ARTICLE IL
Fic-i cscn(ations and %%' - rrant Is
r
'_.1. RcLaen :ationsand Watrantics. Grantor represents and warrants to the Toroec
'y
and the Lenr:ers as tollows:
(aI Title and Autbority
Grantor is the lawf I owner of good and indefeasible
4e' si,nple '.itle to the Real Property subject only to the matters described in Exhibit - B'
attached hereto and made a part hereof (the 'Permitted Encumbranccc'I and has good right
■
and aurhono to grant, bargain, sell. It:IMfer, assign and mortgage the Real Property and
?.
interest in the constituting a ponion of the Property.
to gram a accurity personal property
r
thi Com niiancc
* Cosrna and Laws. The construction. occupancy.
1 - ;i
ort-ration and use cf the Property
and :he intended urc thereof by Grantor complia wink
all Izws, sfdtu!c3 onlinanc—�, rules. regulations, crdcrs and determinations of any
�....p
goi,ernirentan authority and at,y Iviard of fire underwriters ((it any b exercising similar
"#
estrictive donarts nr deed rui:icsions (whether recorded or otherwise).
funcGcml and any'r we
licensing, building.
including. without limitation. ' applicable inning, sutdtvision, plantivg,
(laid disaster. health and environmental laws, statutes, ordinances, rule regulations, ciders
-
and determiraions of any gow:mmenial authority (hereinafter sometimes mllcctis'ely rolled
'APplicable Laws except where the failure to ss comply could not have a material adsarse
effect on (i) the consolidated financial condition or ptotsects of Grantor and any of its
subsidona taken as a whole, (it) the value of the Property and the real property described
T,
in I 'C' attached herein and made a part hrfoaf for all purposes, taken is a whole.
or I iii) the .alitl or enforceah'.lity of Ibis feed of Trust or the :ions and security interests
_
granted hereunder (hereinafter iullectively ailed 'M aterial A Effect Grantor has
I,
obtained all requisite zoning. utility, building . health. operating and occupancy Pennant from
rl
the governmental authorities having jurisdi(vion crier the Property, except where the failure
to obtain such caning and permits world eat have a Material Adverse Eff:ct.
(c) No Suits. Except for Civil Action case No. 1478 lufed as item number 9
' on Exhibit 'B' attached hereto, there art, no judicial or administratis'c actions, suits or
proceedings pending or, to the best of Grantor's knowledge threatened, affecting the
Pmperry which, if adversely determined, would be reasonably likely to have a Material
Adsersr EBezt, or mvt)l,mg the validity. enforceanility or priority of Decd of Trust.
(d) Condition of Proticrty The Real Property is served by electric. gas, storm
.,,it sennar. sewer sanitary wmer aunph'. telephone and other •nilitics required for the
Grantor's current us et thereof on the date hereof at or within the bmndary lino of the
Reid Property. All streets a{Iess and easements (including without limitation easements for
I -
f°
¢revs a e ss. or . r aiLc an. farkire c'ucmui s for utilities. and
..- t Gla, . it I,.rt -o1 , • I the Real Propen,
ease 'ar .. J nit , Ir..... :o, .,ll -a and casements have been
.tdi.. acrd ...i • apl rrnr oot,.. 1 , .dl acrcem¢nts creating
, I rc t n file.! 7 ....:::r r•al pr. txri: ,•ri of Pokin County,
as to 11 s -ad Pmpcns rc it, nahls gixad conditi( .n and repair and proper
.. rtne , rid , ttec Iron: ,1.m , ,a_ .d a :1;i r � casualty Grantor has no
_. kn - , i," I1,,: , ant' I tent �.9r ^.1 'anb tral nl ` u r Ibcr oemfi, in defect or deficiency
:n Pr 1 ;W'Tn rho 'I) s -' dd m.ntr.c :. rid , hcr , cly wvct (;r nwr's intended use
-d tic
Re it I'^ n ^!c ,r iii) h, t t -t dr r_d •. \.h, ,r Fffvct. Vnne of rht Real Property
n con h.n a 11 - pioin, except as di„Intcd n d.t .:n of the Land deliscred to the
( ollamrtd .Assent. N'nne of the nrpro :hr Rc.d Propciry cro:utc an :encroachment
user, a•' „ss or up,m am of the Resat Proper, h Imct, nchts of way • e:ucmerns.
a o
and n nuddmo tr other impnnei enu on adyinung land create such an encroachment.
rot ” dsab.ued on 14c =un er . t the Lznl delivered t, Cull.ncral Accr.t. There is. to
the tctual I,ro• lcdge of Granter, no iondemaaGor. pnxecding rending or mr that
would wlct ehe Reel Property.
,el tt tramv. Gramm w0 warr:mt and forever defend the title to the R63l it
Property acaru' the cI.i:m.s of all ;icrtons whumsiw,cr claimne or to claim the same or any
part rhercoi >ohleti to the Permitted Eneumhrimcs.
Coven_nts and .\ re cem ents. So lone as the Srcarcd Indehtedness or any pan
Ith'.rs•of remains unpaid. Grantor covenants and agrees with the Lenders is follows:
/ rat - ixcs nn Lifer.
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
purfxwe of taxation any lien or security interest thereon. or imposing upon the Trustee, the
Collateral Agent or citter Lender the payment of the whnlrr or any part of the taxes (other
tivn taxes imposed on the ovcrull income (-f Lenders) or assessments or charges or liens
herein required h) he raid by Grantor, or thangmg in any way the laws relating to the
taxation of deeds of trust or merteages or security agreements or debts secured by deeds
of trust or mortgages ur security agrcemetits or the interest of the trustee or beneficiary or
mortgagee or secured party in the prop- -Ttv cowered thereby, or the manner of collection
of such taxes, so m to affect this Deed of Trust or any t.( the Secured Indebtedness or the
Trustee, the Collateral Agent or either Lender, ther:, and in any such event. Grantor, upon
demand by the Trustee, the Collateral Agent or either Lender, sha!I to the extent not
prohihi:ed by Applicable Law pay inch taxes assessments, charges nr liens. or reimburse
the Trustee, the Collateral Agent cr such Lemler therefor.
(b) Ad Val orem, taxes. Grantor will cause th he paid prior to delinquency all
taxes and assessments �creto(nre or hereafter levied or assessed against the Property. or any
pun •hereof. and will furnisH the Collateral Agent with receipu showing payment of such
taxes and assessments at least M days prior to the applicable delinquency dale therefor;
except that Grantor in gust faith may contest by appropriate proceedings, the validity.
applicability or amount of any asserted tax or assessment, and. pending such contest. Grantor
shall not be deemed in Default hereunder if, prior to delinquency of the asserted lax or
assessment, Grantor establishes an escrow, or provides security reasonably amcptable to the
Collateral Agent or resents have been estaKished in accordance with GAAP (as defined
in the loan Agreement), adequate no cover the payment of such in or assessment with
costs. interest and pcnillies and a rreomable additional sum to cover possible costs, interest
and penalties (wnich escrow and'or secunty shall be returned to Grantor upon, payment of
all such (axes assess menu, costs, interest and penalties), and if Grantor promptly causes to
be paid any amount adjudged by a court of competent turisdlcuon "to be due " with all ants.
interest and penalties thereon. prcmptl•: after such judgment becomes fin. provided,
h,.cwr. that in any es•ent each such :o ^test shall Re conc'ded and the tax Issessment.
costs mtcrest and penalties shall he pad prior to the care any writ or order is issued under
,h,, It •i Red Poorer, mat he .old.
4
�P,
6a. 96h
icl QpcjCion pt PI•gv'nj. Granto...:::' k rp, and wIf ra:rc the keeping of, the
P.:gsrry .r.upiul to the CV! - cr,essary rn o, ir,nir the inSur.ncL ram::'. thereon.
Grantor will not use or , r allow •hc r.. nr nccunancy of d:: eroperty in any
mama •.vhi, h "olatm anv Apphcahic t-o . -y " cp! ,here ihr v :ura !, w oc— env would
no . have a kIalerial Adverse infect, whn'h cort .;s a puhltr -,r f.: i. are ,,V nice or which
makes void. voidable or can¢iebie. any itcmrrcr !hen u loox wa4 respect thereto.
Grantor will not ith .m the prior written consent d (n !at ra Agent mitiate or permit
anv nom¢ reel ustncauon of the Pn norlv it k my van an c iindcr existing toning
rhnaricci applicable to the P perty or use r pt rrut Inc use if the Property in such a
manner as would result in such us hccr mine a n nconfutmmg use under applicable toning
urdim nces or other Applicable Laws. rrr.mmr sill nol. without the prior written come,tt
� Collateral Agent. impose :mv restrict :c cotenants or rncumhrances upon the Property
which does net constitute a Permitted Encumbrance. execute or fife any subdivision plat
:nlmic¢ the Property or consent tp the annexation of the Property to any municipahry,
Grantor shall not cause or permit any drilling of exploration for. or extraction. removal or
pr,Wucuon of, minerals from the surface or sufnuriace of the Property. Grantor will not
do or stiffer to be done any act whereby the value of the Property materially may be
lessened. If Grantor re.rives a written notice or claim from any federal, state or other
governmental entity pertaining in the P;.Pperty, including specifically but without limitation
a notice that the Property is not k cord ':ance with any Applicable Law, Grantor promptly
will furnish a copy of such notice or claim to the Collateral Agent.
(d) Gc for Construction Grantor will cause all debts and liabilities of any
character. moludmg without limitation all debts and 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 he paid before
the same hictome delinquent. Notwithstanding t: foregoing. Grantor in good fat may
contest, by appropriate proceedings the validity, apphcahility or amount of any eted
mechanics' or materialnten's field, and, pending such contest, Grantor shall not ht deemed
in Default hercurAer if Grantor provides the Codatcrel Agent with security satisfactory to
the Collateral Agent in is reaseril discretion and if Grantor Promptly causes to be paid
any amount adjudged by a court cif competent jurisdiction to be due, with all costs and
interot thereon, promptly after suc)t judgment becomes final: provided, however, that in arty
event each such contest shall he concluded and the lien. interest and ants shall be paid.
Minded around or otherwise removed prior to the date any writ or order is issued under
which the Property may he sold. j
(e) Repair and Mai t n . Grantor will keep the Property reasonably in good
order, repair. operating condition and appearance, causi• . reasonahly necessary repairs.
renewals, replacements, additions sod improvements pron. _y to be made. and will not affray,
any of the Property to be misused, CT l o bused or wasted or to deteriorate, normal wear and tear
and casualty excepted. Grantor p mptly will replace all vomout or obsolete futures or
personal property covered by this 6ced of Trna that are necessary in the operation of the
Property with futures or personal property asmpa:ahle to the replaced future or personal
property when new, and will repiint the Property when rsecded. Notwithstanding the
foregoing. Grantor will not, without the prior written cement of Collateral Agent do or
permit to be dune anything to the'Property that materially may im;air its value, including
but east limit ; to (i) removing from the Property art) future or personal property covered
by this Deed of Trust (but not including any pers propcity in which Grantor is the
Icasee thereof) which are necessarly br desirable in the opentirm of the Property, except
such as is replaced by Grantor an article of equal suitability and value, owned by
Grantor, free and clear of any lien or security interest (except thst created by this Dred of
Trust or any other Security Document) or such as is permitted to be remo by a tenant
pursuant to such tenants lease rir (ii) making any structural or other- alteration to the
Property that materially impairs -he value IScrcof. Nothing contained herein will present
tenants of the Property from making alterations and improvements expressly permitted
under their Leases. Upon request of the Collateral Agent, Grantor will deliver to Collates
Agent an inventory descrihing and showing the make, model, serial number and location of
all futures and personal pr..peny used in the maintenance and tperation of the Property,
wuh a cent ication by Grantor that said invemcni is a true and complete schedule of :.II
such futures and personal property used in the maintenance and operation of the Property,
tbat such items specified in the inventory constitute all of the futures and personal property
I
i�
I
r
f iS
e-
t� � I
i ti t s {.
a
\
a,na 96.
+"
required in the ma :ntrnanc _ and )perannr, (it the Property. and that all such vertu arc
owned by Grantor tree it it v i: it set o.: .tituruy ime: cst lest. pt •he Perm
i
r
,j' {
If) ins.ecc or_J C_nua_o, r.t an t r 11
or lbs. Pt tM (v in ur <d sgalvt loss
or damage by fire rpl rn. incises rot ha t xxt ', is r vu1 p t rr at the Property
•
/�
which shall at am time be heated it an pql Icnt "nood pr area in hi. h noxtd
4)' (
tnsuranc: hxs been made avriahle pursuant to the �gxod Duaner I roovoon An of 1973,
c; - .• . -,
and then in the amount of the ouc oard ,g balance n the Notes or the maximum amount
'q«
of coverage available, whrhart is lets i tornado an such other hazards as reasonably may
-
t..
he required by the ( Alatcn:l Agent ( ndadleg war damage IC available under sponsorship
of the United Slates trrvernment when at a threatened or declared) by policies of Ere.
p`
I
extended coverage and other Insurance to fah company or companies, upm such terms
`
and precisions, and with such cnuarsemcnts, all I�Ias reasomshly may he acceptable to
`i
Collateral Agent. Grantor lurthcr ••• :ers :hat GriZr will deliver to the Collateral Agent
f
certified copies of all such policies, receipn evidencing th p anent of all premiums and
certificates of insurance addressed to the Cn stcrd ; Agent evidewme ran vrals of all such
t.
policies of insurance at Icat 1' days before any such insurance shall expire, and otherwise
evidencing compliance with the insurance requuctjtents set forth herein. . \II insurance
policies required pursuant to this subparagraph (() shall contain a pnohNiton against
cancellation. material endorsement. material alteration or missuanu of such p +lice effecting
a change in coverage thereunder unicss such inuuej first shall hate given Collateral Agent
s "
30 days prior written notice thereof. All fire, extended and other insurance coverage
i ^. _' 7
T-
insurance politics reouired hereunder shall he on a (eplattment cost basis in an amount not
t
d -"
less than that nececsary to comply with any co- insurance percentage stipulated in the policy,
but not less than one hundred percent IIXYF) of the Property's insurable value, and shall
he subject to deductibles, if any, not to ncced the Never of one percent I M) of the face
amount of the policy and $10.000.00. Without limiting the discretion of the Collateral
Agent with respect to required endorsements to insurance policies. Grantor further agrees
loot
`
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 form attached to or otherwise made a part of the applicable policy. In the event
of foreclosure of this Decd of Trust, or other transfer of title to the Property in
extinguishment in whole or in pan of the Secured Indebtedness. all right. title and interest
t
of Grantor in and to such pri then in force concerning the Property and all proceeds
payable thereunder (to the extent of, but not to exceed. the Secured Indebtedness) shall
-
vest in the purchaser at such foreclosure or the Lenders or other transferee in the event
s
of such other transfer of title. In the event any of the Property covered by such insurance
`
t
is destroyed or damaged by fire• explouon, windstorm, hail or by any other casualty against
which insuract6c shall have been required hereunder, (i) the Collateral Agent may, but shad
not be obligated to, make proof of loss if not made promptly by Grantor, (ii) each insurance
-'
company concerned is hereby atuhoriud and directed to make payment for such Ioss jointly
—�
to the Collateral Agent and (`irantor, and (iii) the Gallateral ,\gent shall apply the insurance
'
proceeds as follows:
1
(A) Lint, to reimburse the Colla i leral Agent or the Trustee for all costs
j
and expenses, including reasonable attorneys fees, incurred it connection with the
collection of such proceeds. and
-
(B) second if a Default shall have oaurred hereunder, the remainder
E. r
or said proceeds shall he applied to the payment of the Secured Indebtedness in the
order provided for in the Intercreditor 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. would constitute a, Default and which is susceptible to curt,
the Collateral Agent shall place such insufance 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 penods provided for in the Iran Agreement or the
Prudential Note Agreement trr if such cure!docs not occur. will be applied pursuant
to this Paragraph 2.2(f)(iii)(B); and
e-
t� � I
;+.rorar.aar�ta...a saaaa ..r... �_ -- - --
h<' 9S8
(C) _Surd if n: am of the facts described in subparagraph III) above exist,
the reminder of such prxccjs shall be used by Granter for application to the
repair reswfition or rcpiacemcni of the Property so destroyed or damaged from
cirri to time upon Compliance by Grantor with such wrens. coniitioru and )'
roauircmcnu a maf h: r<zcmahh imposed by the Collateral Agent ind after such
application, anv temaimr.e ;'rncceds shall be paid to Gtantor.
In any even)(the unpaid porton of the Secured Indehtedness shall remain in full force and
effect and Grantor shAl not !x excused in the payment th•^ud. If any j (it occurrence
t anyy urd or nature ('10L lice AnV casualty on which insurance was not obtained or
nhtafnablc) shall result in material Jamge hs or material loss or destruction of the Property .
fir antor shall give imr}tediate notice thereof to the Collateral Agent and, unkss the
I C01131eral Agent elects not to restore the Property to its prior condition (pursuant to
subparagraph R of Paragraph 2.2(t)(iii)) Grantor, at Grantor's sole cost and expense and
regardless of whether the uourtme proceeds, if anv, shall be sufficient for the purpose.
promptly slall restore, repair. replace and rebuild the Property as nearly as possible to its
value, condition and cheractrr immediately' prior to such damage. kris or destruction in
accordance with plans and specifications; submitted to and reasonably and promptly approved
by the Osllateral Agent. (immor hereby irrevocably appoints Collateral Agent
attorney-in fact. with full autht in place and stead of Grantor and in the name of
Grantor or otherwise. after the occurrence of any Default and the continuance of same to
obtain any insurance required to he obtained pursuant to this Paragraph 2.2(f) and which
is not so obtained and to receive, iadorsc, and collect any drafts or other instruments,
documents and chattel paper, in connection therewith. The appointment of Collateral Agent
as attorney -in -fact is coupled with an interst and is irrevocable prior to final payment in
full of the Secured Indebtedness.
(g) Liability and Other Insurance Grantor shall maintain comprehensive general
liability insurance against claims for bodily i jury or death and property damage occurring
in or upon or resulting from the Prope in standard form and with such ftsurance
company or companies and policy 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 terms and provisions, in such
amounts, an' 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 limes deliver and maintain with the Collateral
Agent certified copies of all such policies. receipts evidencing the payment of all premiums,
and c.rtificaoes of insurance addressed to the Collateral Agent, evidencing renews s of all
such policies of insurance at (east 15 days before any such insurance shall expire, and
otherwise evidencing compliance with the ir-.uratce requirements set forth herein All
imurxrxe policies required purssaat to this subparagraph (g) shall contain a prohibition\
against cancellation. material endorsement. material alteration or reissuance of such policy
eff.xting a change in coverage thereunder unless such insurer first shall have given
collateral Agent 30 days prior written notice thercoL Without limiting the discretion of the -
Collateral Agent with respm to required endorsements to insurance policies. Grantor
further agrees that all insurance policies des:ribed in this Paragraph 2.2(g) shall name the
Col'ateral Agent, for the benefit of the headers, as an additional insured parry.
(h) Condemnation Prompth• upin obtaining actual krowledge of the institution
f of any proceedings for the condemnation of the Property or any portion they -of, or any
j' other proceeding arising out of injury or damage to the Pro x m
rty, or any portion thereof,
/ Grantor will notify Collrteral Agent of the ndrn" of such proceedings. The Collateral
Agent may participate . s any such proceedi , and !:raptor shall from time to time deliver
to Collateral Agent all instruments resconah'ty requested by it to permit such participation.
Grantor shall, at its expense, diligently prosecute any such proceeding, and shall consult
with Collateral Agent, its attorneys and cxf em. and cooperate wit.i them in the carping
on or defense of any such proceedings. All �proceeds of condmnation awards or proceeds
of sock in lieu of condemnation with rupept to the Property and all judgments, decrees
and awards for injury or damage to the Pro wrty shall he paid to the Collateral Agent and
shall be ap�Fed as fellows:
I
L
I
tar
1.l [rs}, to rc Grao :, '. ol!smral Agent or the Tv tee lot all
rcawmablr costs end exlwruo,' . rn'. Aing r.. •s+able .w,�rncvt' fees, inc,rrcd in
:onnceurn wnh loI1Cll10O ,e sea - h pt : :.ccth
;c ono, to the I ,,,i nt of ckwc :.s Indebtedness in the order provided
P•r sSc Immlctrditnr Agreement. 111:1
t!ni third. to the mcm of the balance (if any) , f s. :ch pr:ueds, to Grantor
it nhcr perry Icgally enti :icd thereto.
y I
i
Grantor herehv assigns and transfers i!i such proceeds, judgments. decrees and awards no
Lenders and agrees to execute such further assignments of all .uch proceeds, judgments.
Jecrees and awards as Lenders may reasonably request. provided, hov cver, the disbursement
of such pr(xeeds. judgments, decrees and awards shall he applied as provided above in this
Paragraph 2.2(h). The Lenders are hereby authorized. in the name of Grantor, to execute
and deliver valid acquisances for, and to appeal rrom. any such judgment, decree or award
The Lenders sKA not hc. in anv event or circumstances, liable or responsible for failure t
collect, or for failure to exercise diligence in she collection of, any such proceeds, judgments.
decrees and or awards.
Q) Protccuo and Defense I bf Lien If she validity or pnoriry of this Deed of
Trust or of am rights, titles, liens or security interests created or evidenced hereby with
respect to the Plop, rtv or any part thereof shall be endangered or questioned or shall be
attacked directly or indirectly or if sny legal proceedings, other than proceedings relating
to any Permitted Encumbrances to the cot such proceedings would not have ' a material
adverse effect on the validity or priority of 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 the Property which is the subject of such Permitted
Encumbranar, are instituted against Girl mor with respect thereto. Grantor will give prompt
written notice thereof to the Collateral Agent and at Grantor's own cost and expense
diligently will endeavor to cure any de fea that mat, be developed or claimed, and will take
all necessary and proper steps for tr.,, d tense of such legal proceedings, including but not
limited to the employment of counsel. the prosecution or defense of litigation and the
r ^lease or discharge of all advent clairits, and the Trustee and Collateral Agent, or either
of them (whether or not named as parties to legal proceedings with respect thereto) are
hereby aushoriud and empowered to tike such additional steps as in their judgment and
discretion reasonably may be necessarFFs�, or proper for the defense of any such legal
proceedings or the protection of the valiUity or priority of this Deed of 'Rust and the rights.
titles, liens and security interests created[ or evidenced hereby, including but not limited to
the employment of counsel, 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
tide and the removal of prior liens or security interests which do not constnute 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 use
subrogated to all rights of the person receiving such payment.
(j) 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 fermi 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 ; :rt of the Property to be inspected and copied by
Collateral Agent and its represcmativns at all times during reasonable business hours.
(I) Ismes. Grantor may not lease or enter into any other occupaney agreement
covering any of the Property without the prior wnsen consent of Grar•
(m) Fees and Lpe ns s. Indemnification. Grantor will pay all appraisal fees. filing
and recording fees. inspec ion fen, survey fees, taxes, brokerage fees and commissions,
r
q
:. °:
Y i
t'f
t1 t
1r11
t(
sir
tr
ha3 71
polidea M gym,, nlLu - rah Agent shall have the nghu to rely upon tax information
'
ftloaWleu) w .:r - J 11 ❑vnt authooties i,. the payment of rich tales or assessments and
shag have i u make any promo i of any such Cates or assessments. Any excess
over the am u :. q ir...f such purruas shall be held by Collaterai Agent for future r
use, appl 1 t .s S. u -d h ut accordance with the terms of the Intemeditor
Agreement or rvia did ur G(a^.nr, at U111atcrel Agent's option: and any deficiency in such
t }
funds ass de— ivd .t .II he made up h7 G-anmr u!am demand of Collateral Agent. All such
-1
funds ao 1u f - _cd �h II hrar Interest at the normal interest rate for savings uccount deposits
at NCNB f t. mss !v rnmeied with the general funds of Collateral Agent and shall be
c..kEi
applied by Collateral Agent tot pasm¢nt of such rases, assessments, charges and
Y'
l hensard
premiums when .tnrn
lrcnv tperefor air presrrrted to Collateral Agent by Grantor (which
statementa sh II be pre er ed by Grantor to Collateral Agent a reasonable time before the
Se`
applicable to a °,t ic inc) . pli?%Acd. howe.cr. that if Collateral Agent has made demand
,•,.
tnr payment of W , t the Scrulrcd InAehtedness. such funds may at Collateral Agent's option
' !?
he applied to t_c pmmcnt'iof :..c Secured Indchiccincss It. the order determined by
Collateral Agent m .tccordadce with Lie toms of the Intercred,tor Agreement and that
Collateral Agent m.re at any time, in its dc,cretion, apply all or any part of such funds ",
:•.+ -;
toward the pav+nent of any such tuts, assessments, charges or premiums which are put due,
'=�
together with anv pcnd!i� or Loe charges with respect thereto. The conveyance or transfer
of Grantor's mmrest in the Property for any reason (including without limitation the
foreclosure of i sul ordmalc lien or security interest or a transfer by operation of law) shall
constitute an eesignmcn1 of transfer of Grantor's interest in and rights to sach funds held
E:
by Collateral Agent under this subparagraph (s) but subject to the rights of Collateral Agent
.
hereunder. I
"
(1) j rther—&%urances. Grantor will. on request of Collateral Agent.
F (
(i) prompdy correct any defect, error or omission which may tc dncovered in the contents
of this Deed of Trust or in any other instrument executed in connection herewith or in the
% caecution or a.knowledgment thereof, In) execute, acknowledge, deliver and record or file
/ such further instruments (including without limitation further deeds of trust, security
t"
agreements. financingstatemems,tn , ,tinuation statements and assignmentso ftents orleases)
and do such further acts as may tx! reascmably necessary or proper to any out more
effectively'Ihe purptnes of this Feed of Trust and such other instruments and to subject
to
the lists and security interest hereof and thcrcaf any property intended by the tenor
hereof
=_.a` U.
and thereof to he ccro .cd hereby
and thereby including specifically, but'without limitation,
any renewals, additions, sub4ntutions,
replacements, or appurtenances; to the Property,
(iii) execute acknowledge, deliver.
procure and record or file any document or instrument
(including specifically any financing statement) deemed advisaole 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 Ageement of arty
Froperty to furnish any iststntment or perform any am deemed advisable by Collateral
Agent to protect the lien or the security interest hereunder: and (v) provide such
certificates, dusuments. reports, information, affidavits and other instruments and do such
$
further acts a may be reasonably necessary or proper in the reasonable determination of
'H;1
Collates Agent to enable Collateral Agent to comply with the requirements or requests
r
V
of any agenei h.rving jurisdiction rner Collateral Agent or any examiners of such agencies
1 .y
with respect to the Secured Ihdebtedness,
Grantor or the Property.
(v) (ls Ac tion Csc No. ts ui_ Grantor will (i) promptly give Collateral Agent
notice of any judgment rendered in. or settlement resolving, Civil Action Case No. 3448,
described on [shlhit B. Item 9, attached hereto (the 'Civil Action'); (ii) promptly deliver
to Cnllalerat Agent a revised survey of the land reflecting any changes to the boundaries
of the Land as a result of the entry t,f final jxlgmcnt in, or settlement resolving, the Civil
Anion: and (till execute. ackmtwledgr, deliver and record or file such further instrument
(including, without limitation, further deeds of trust, security agreements, financing
statements, rnnunuanoa statements and assignments of rents or Icues) and do such further
acts as may he reasonably necessary as a result of any changes to the boundaries of the
Land as a result of the entry of final judgment in. or settlement resolving, the Civil Action.
23. Right of C ollat oral ens to Pcdorm. Grantor agrees that, if Grantor fails to
perform any act or to take any action which hereunder Grantor is required to per(onit take. or '-
Ill i
i
A.
r. 'I 117.'
rn !'.v mr ncv w ho S hr:cander G'antnr o r rcquvod to pa:, cwdlaceral Agcut, in Granica s name
aP.•r he 4 f Illy r !' u '.'.rti•.t nJ apnairm'd a" applicable cure ,
` -.• pursuant nt t afagn h i h may t r id no e t n tint Bated tit per loan of cause to „s t
:'cri ormed so .h t rr take s ct t'o fs ,•fps w 'n cot ney. and any rcawnahle expenses so
- ,.tied fill G tL Y rcr ^ Agent, and my Motile, ,) l +aid by CAlmcral Agent. shall be a demand .q
of gai u,n my mg by ( Irantor to Coll.1c"l Agent and Qdlatc•11 Agent, upon making such payment.
.null i•e r.Dm¢auIf al all of the ahts of the i•trutn .n entity reuixing such payment. Any
coo :ell f ne by (irar t " (• il.+t, II :\gait rw.uant It this Decd of Trust shall beat � r
+tier m the data >uch amoun :nmo: luc until i d at a rate Ii iNcaa per annwn equal JSw
+, the Iwo of I'.) the prime tau of M N B Tcxas n as a mmrecd or puh!6hed ti, NCNB Texas from
::mu n, time. plus 2r ou r liie the highest la ,,iul r.n.e. and shall be a part tit the Secured
In&htcdnuss and shall he secured f y '.his I've J : I Foust and by any other Financing Document.
4.
AR tt(:Lfi III 9'
' z
R rr dies is f._cn of Default
3 . 1 . Defaulss. The term "Dr,auli as used in this Diced of Trust shall mean the
, s vita
c
ra.rcnec and continuance mf :m 'LS'.nt mf Dccmli s defined in the Loan Acreement or the
, r s
Prudential Note Agreement.
i'_. 1. celeration L'pm '.hc occurrence ill a Default the Collateral Agent shall have the
''ptiun o(dcclarmit all Secured Indebtedness in its entirety [c be immediately due and payable, and
the liens and security interests evidenced hereby shall be subject to fortcknurr in any manner
tt. i
pronded for herein or pros ;dcd for by taw as Collateral Agent may clot-
w ;
3.3. Peasesaic_n. Upon the occurrence of a Default, Collateral Agent is authorized prior
it
mr subsr:quent to the imtitution of any forcelrxure prxeedinp to enter upon the Property, or any
part thereof, and to take possession of the Property and of all boos, records and accounts relating
thereto and to exercise without interference from Grantor any and all rights which Grantor has with
respect to the management, po,— a ion. operation, ptotection or preservation of the Property,
`.
including the right to rent the same for the account of Grantor and to dedu— from such rents all
•� a
reasonable Cmsts. expenses and liabilities of cvery character incurred by Collateral Agent in
collecting such rents and in managing. operating. maintaining, protecting or preserving he Property
and to apply the remainder of such rents on the Secured Indebtedness in such manner collateral
it
incurred by Collateral Agent to collecting
i.
Accra may elect All such costs. expenses and liabilities
lath rents and in manafing, operatmg, maintaining. protecting or preserving the Property, if not
paid out of rents as hercinabovc p.olvided. shall constitute a demand obligatimt owing by Grantor
equal
t•
.mJ shall hear interest from the date of expenditure until paid at a rate of interest per annum
q�
to the lesser of (i) the prime rate of NC \B Texas, as announced or published by NCNB Texas
from time to time. plus 2 or (ii) they highest lawful rate, all of which shall constitute a portion
(if the Secured Indebtedness. In connection with any action taken by Collateral Agent pursuant
i;gj
to this Paragraph 3.3, Collateral Paienr shall not be liable for any fins; sustained by Grantor resulting
from any failure to let 'he Property. dr any part thereof, or from any other act or omission of
Collateral Agent in managing the Fropetty. including without limitation, the negligence of Collateral
Collateral Agent,
z F
Agent, unless such loss is caused b) th gross negligence or willful misconduct of
end G;Ilamral Agent shall net he nbligi std it) perform or discharge any obligation. duty at liability
t y
under an lease agreement curveting tht Property or an art thereof or under or reason of this
Y B 6 Pe Y Y P hY
inurument or the exercise of rights in remedies hereunder. Should Collateral Agent incur any such
I- ability, the amour[ [hereof. including reasonable consul expenses and reasonable attorneys fees.
i
shall be secured herebv. and Grantor shall reimburse Collateral Agent therefor immediately upon
s,
l
demand. Nothing in this Paragraph 3'3 shall impne any duty, obligation or responsibility upon
Collateral Agent for the control, carc,!management or repair of the Property, or shall operate to
'•1 ".
make Collateral Agent responsible or :liable for any waste committed on the Property or by any t_
:7i•
'`'•
tither parties or for any dangerous or defective condition of the Property. or for any negligence in
" '�
the management. upkeep, operation. repair or control of the Property resulting in loss or injury or
death to any tenant. hoccrssee, employee ur stranger, unless soh waste. dangerous or defective
by
Condition or injury or death is directly a result of gross negligence or willful misconduct
Collateral Agent, and net Past Collateral Agent's town ordinary negligence. Grantor hereby assents
t
ratifies and cemlirms any and all actions of Collateral Agent with respect to the Property taken
s,
under this Paragraph 3.3.
--cs,
s, 9'3
1.1 for_ecbrme 1; lion Inc MLUri'�ce of a Default, the boos'. -e a authortrrd and
emv >crcd and :t s .;I Ic Sc. , r 1-c- —It at the request d G'J hooral %cent to sell the t
t' -
Re.d Property or any part thereol. � it a-n time at after the occurrence it a Defult (CnIL.,eral
Age ^.t having declared the &a.rad Ind chord Tr¢ I. ?•r due and pnyahle. as pr, :.-,ded for to section
o.
to rs>f). Collateral Agent - m.n c i in Lom;ncnm foreclosure pnxecd:n es ny way at a tr\utteds o
vrl< ;•,irsiant to the orovsions , I r't r..A Arude 17, Colorado Revised S
.G
,..en ol e :me ! rd Ti - i h al i ^, advertisement. Lek!' in a ne naper of ¢erkral .- S
S
,mculet an to Paton (
request and any sale may be adjourned ! v ktnnouneement at the time ;cod place appointed for such
gale without further n. tact exc Cpt as may required by law. The sale by the Trus ce of less than r
rice
< specihudl•; emprw.r r d o m Ike succecst)•e sale or sales under SULK p:wcr until the whole of the
t '
ReA Property shall be sold . and, if the pr,,Il s
ss `
w
/j R
c
.
r
..n' 774
r
1
i
fnm the Property r\nv rn adsanccd by l.dlatrrxl Agent to mnnectinn w on any such
b, li,antnr w Gdlnteral : \Cent and shall bear
rea'rverahip shall be a demeod •,hligauon owing
inmr.�..t f rom th date of .sting s�:ch advamrm"t 'n l'nl'e, Aicnt until paid at a rate of
announced or
into - per amum equal to the lute of oil the p t me of FCN6 Tesas, az
is) the highest lawful rate. and shall
,>
-Gsa. il "s _ .
iahcd by NCNB (tom time m tme p O r
by anv other in. cur' nl s curing the Secured I: deMedrtess.
•`�,
e .,cured by this Ikrd -i Tout and
b
19. P. + Cs ,d �.,I<. The pros ds of :u v sa'-.c "Id hs the ' •uuee „r anc ttceiver or
fa
_
JLIF „IhCG'r IO t,- ClluSlrl t the Ilen, A, 'nced hetChy shall l`<
Iu 4, Ili• p tsTnenl of il nccl'SS.lry ,Ats and esrc M15C5 in, ideal ill such fUre[lO1nrC
Paragraph lh and all c:mrt costs and
sale including but rrn limited t, th se dcscrhed -n
chat Ecs of every c°,af3ctir in ohs. c am fPr CClos<d by still.
) r
second. to the ,iment to full of the SecUlTJ Indebtedness (including spttiGcally
fees due and unpaid on da:
but without bmitation the principal. interest and .innrncys'
, o Collateral Agent under this De ed of
Notes and the amounts due and unpaid and owed
ra ._
Tr,ytl az provided in the Imercreditor Agreement, and
L Sii'•^g`
T ii
third the rcm:umder, if amt shall M pu,I to Grantor or other party legally entitled
/ thereto. i -'
t�y-f.
19 Insurance Cron Fnrc dosure In case of an insured loss after judicial for policies.
insurance policy tx pohnes.
at�
f , Trust•.c s sale prxced:r,gs have Men instituted, the proceeds of any
imprrmm<nts, shall be used to pay the
d not applied to rebuilding or restoring the utldings or
�n foreclosure or Trustee i sale.
{
.mount due up the SL Indebtedness. the event of judicial
Ttce is hereby authorized, without the consent of Grantor. cal assign any
( ollatetal Agent or ms
and all insurance rolicie, to the purchaser at the sale. or to take such other steps p Collateral
to M Protected by
interest of such
f ,
Agent or Trustee may deem advisable to cause the purchaer
any of the said insurance policies.
F
3.10. T1 Collateral Agrnl as P u chase . Collateral Agent shall have the right to beWme
officer, and Collateral
s
the purchaser at any sale held by any Trustee or by any receiver or public
upon the amount of the bid made
.Agent purchasing at such sale shall have the right to credit
to sat:;fy such bid, the Seeu red Indebtedness owing to the
,
therefor, to the extent necessary
Collateral Agent andfor Lenders for the equal and ratable benefit of lenders.
3.11. Upon the Occurrence of a Default, the Collateral Agent
,. 4 .� a
its r ights of enforcement with respect to any part of the Property that may or may not,
rr ;
may exercise
now or hereafter, be or he deemed to be pilrsnnal property, fixtures or property other than real
Commercial Code, as amended. end
k
estate (the'Persesnal Pmperty') under the Colorado Uniform
in for :hose rights and remedies:
in conjunction with, in addition to or substitution
(a) Collateral Arent may enter upon the Property to take possession of, assemble
and collect the Personal Prclxrty nr to render it unusable. and
4 I �s9`
(b) Collateral Agent may requtic Grantor to assemble the Personal Property and
'
make it available at or on the Land to allo•v Collateral Agent to take possession or dispose
of the Personal Property: and'
(c) written notice mailed to Grantor as provided herein 5 days prior to llsq date
p • +;
O f public sale of the Personal Property or prior to the date after which private sale o the
;c,:
Personal Property will be made shall constitute rusnnahlc no! and
•`t^ made pursuant to the provisions of This Paragraph 3.11 shall M
r�
S
(d) any
deemed to have been a public sale condmaed to a ocnimercially reasonable manner if held
Property under power of sale as provided
CC `
cnn(nmptsran<ously with the sale of the Real
the sale of the Personal Property
fY,
„.
herein upon giving the same notice with respect to
required for such sale of the Real Property under power of sale. and
i,. hereunder as is
sY
I1.
I 7'.
I
t1;�r
�
I
(el in the r<•ent of a foredo,we sa.e..'+ethe o. ooIc ' :he Tna:ec under the
erms bem,l. of on jcr — .dement of a :nun. "!.c I'r �u mat f'r •perry and Ihi if, 11 1
-
tsar. at the option � f t ,ji,teral Agent ''c n•dJ n. a whole. anL
(f) tt shod not h n<e"san ii,, e; 1'Ilatn d Agcoi ' Oke Ivasession of rte Personal
Propcny or any part thereof prior to d: time d.et any ,alc nursuant to the f.o,sions of
this it araar.q!h :.I I u c>ndueted, and v st.aiI not he nie _ ary that the Pert if Property
or anp pan :' :crc : q he Present at the . I !if "I s :]' and
dnf•oa:. of the Pcnomd Property to
m n
igl prior h, application , pt pn
of
the Secured Indebtedness. such poaceds shall
hail hC .q to the rcasonh�e cxp:nsr" (it
retaking, holding, prcpanng for sale or !case, '.ellir •;, k.,hne and the like and he reasonable
oH!0 n,vs feu and legit cxpcnsv :s inecrr._d hs Gtllatcral Agent, and
Ih; any and all st.nemenu. • I fact or other ccilals male in anv hill of sale or
assi¢nmcm or other utstrumel.t evidencing acv foreclosure sale hereunder a, to nonpayment
of the Scan cd Inde hied nc a, or as to the occurrcn of :mv Dc.`ault. nr ns to Collateral
Agent and/or Lenders hating declared all or such indebtadne.0 to be due and payable. or
as to nonce of time. place and terms of ;ale and (it the properties to he sold having h,-en
duly given. or as 'n any other act or thine ha.ine been duly done by Collateral Agent
and/or lenders. shall he taken as priria facie rvicicnre et the truth of the facts so stated
and recited: and
(i) Collateral Agent may appoint or detcratc any one or more persons as agent
! to perform any .at or acts necessary of incident to any sale held by Collateral Agent,
r
including the sending of notis and the conduct o; the sale, but in the name and on behalf
of Collateral Agent.
i� 3.12 Pama; Foreclosure. in the event of a default in the payment any part of the
el
Secured Indebtedwm. Collateral Agent shall bave the right to proceed with fpreclosure of the liens
and security interesu evidenced hereby without de faring the entire Secured Indebtedness due, and
in such event am such foreclosure sale may be made subject to the unmatured part of the Secured
I Indebtedness; and any such sale shall not in any mbnner affect the •mmatured part of the Secured
r
Indebtedness, but as to such anmatured part this Deed of Trust shall remain in full force and
effect just as t:tough rto sale had been made. Thk
proceeds of any such sale shall be applied as
provided in Paragraph 3 g caept that the amoun�
paid under subparagraph second thereof shall
he only the matured partiot of the Secured Indebtedness and any proceeds of such sale in excess
of those provided for in subparagraphs first and second (modified as provided above) shall be
applied to installments of principal of and interess on the Not" in the inverse order of maturity.
Several sal" may be made hereunder without cxh✓tt sing the right of sale for any unmatured pan
of the Secured Indebtedness. 'i
3.13. Remed Cumulat All remedies, herein expressly provided for are cumulative of
any and all other remedies existing at law or in equity and arc cumulative of any and all other
reraedia provided lot in am other instrument securing the payment of the Secured Indebtedneso
or any part thereof, or otherwise benefiting the rrustce, the Collateral Agent and the Lenders, and
Inc Trustee, the Collateral Agent and the fenders shall, in addition if the remedies herein
provided. be entitled to avail themselves of all such other remedies as may now or hereafter adst
at law or in e for the collection of the Secured Indebtedness and the enforcement of the
covenants herein and the foreclosure of the liens ind security inter "u csidcnccd hereby, and the
resort to any remedy provided for hereunder or under any such other irnsrumem or provided for
by law shall not prevent the concurrtnt or subsequent employe¢nt of any other appropriate remedy
or remedies.
+
3.!4. Resort, O_Pa17L Collateral Agent may resort to any security given by this
Deed of Trust or to any other security nrsw existing or hereafter 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 m Collateral Agent in its iota and ummntrollcd dixretion, and any such anion shall not in
slilaw
as a war.vr of any of the ng hu, benefi !lens or security interesu evidence.;
am,ison be considered 1
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3.15 staivl. TO the full er tit irantor my at, tsrantor agrc,s thai (nznior will
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t at anv time mist uPo n plead. 1 .r take '' I. G: or advannea . it my law now or
re�uer n torte pennnmg to the -ts :cod rt t is of sureties �)r I cclJmg for any
d (
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. t l p ruseme nt, valuation stay cnem it it E cdem fit, in rdd
Grantor I r i t.,ntor and Grantor's
hors. devi ces. representa t es. suuz_ 4 t t d uesigrte at 1 fi
+r my and all p r.� its ever claiming am
ntcell in the Propene+. In the enenr '.cd by la'+ licrvhv
waives and releases all rights of
.i
redeGtp'Inn, valuation. appanse —, irt. ti, A "'cutlop. plituan
of intention Cl mature or declare
!ue the whole , f the Secured lnd&t d,n an..1 all nghu nb
a marshaling „ t the assets of Grpntor,
!' 3;f
includin¢ the Property. or ro a sale to r , r , 'der of :dier✓.own
to the event of foreclosure of the
hens and security interests hereby urned Grantor shall hot have or azure anv fight u -.der any
'T
.t.nate or rule of law pertaining it the marshaling of asstts. sale in inverse order of alienation,
me csempoon of homestead the adrnlmnr:wnd of estate., It decedents or other matters whatever
to defeat. reduce or affect (hot riehts of the lraetet or C llaterzl Agent under the terms of this
Deal of Trust to a sale of the Propene for the collmaton of
the Secured Indebtedness without any
' -
or diff_ rent resort for adlcctiun, in the rights of the'�Trusim
or Collateral Agent under the
prior
terms of this Deed of Trust to the payment of such indebtedness out of the proceeds of sale of the
Properly in preference to every other claimant whatever. If any law referred to .o this
-
Paragraph 3.15 and now in force, of which Grantor or Grantor's successors am; assigns and such
other persons claiming sn% intcrca in the Property ° might lake edvaninpe despite this
P::ngraph 1.15 .shall hereafter be repealed Ot v_ase to be In force, such law shall not thereafter
hs: deemed to preclude the applicmicn f thin Paragraph
1.16. Tender Afte Accel< :,n. If, following the lncuuerom of a Default and the
acceleration of the Secured Indebtedness but prior to lh- liueck,sure of this Deed of Trmt against
the Property. Grantor shall tender to Collateral Agent and'or I .odors payment of an amount
sufficient to pay the entire Secured lvdehtedness. such tender shall he dcemed to he a voluntary
prepayment under the Notes and, conscqucro y. Grantor shall alto pay to (.enders any charge or
required under the Notes to be paid in order to prepay principal and, if such principal
premium
is made during any period when prepayment is prohibited by this Deed of Trust. the
payment
Notes, or the Financing Documents, the applicable charge or premium shall be the maximum
,• -
prepayment penalty provided for in the Notes or Financing loocumcntst provided. however, that in
ti jl
no event shall any amount payable under this Paragraph 3.16. when added to the interest otherwise
payable on the Notes and the other Secured Indebtedness, exceed the maximum interest permitted
under applicable law.
3.17. Insura)�tcE Premiums Upon any foreclosure of the Real Property pursuant to this
Decd of Trust. "teral Agent shall have the right to cancel any policy of insurance covering all
or any pan of the Property and shall be entitled to receive any unearned premiums from such
• }FF;
v liq•. The y4arned premiums received by Collateral Agent shall be zppiic, in the same manner
as pr o vided to Paragraph 3.9 above regarding the application of proceeds of sale (if the Real
j , k
Property.
ARTICLE IV.
Oil'
Assignmen or Rents Profits Ir. comee
'
Contracts and B onds
is
4.1. Assignment Grantor dots hereby absolutely and unconditionally assign. transfer and
n.;
set over In Collateral Agent all rents. income. profits and proceeds to he derived from the Property.
including without limitation the immediate and continuing right to collect and receive all of the
rents. income, receipts, revenues, issue, profits and other sums of money that may now or it any
time hereafter become due and payable to Grantor under the terms of any present or future leases
now or hereafter covering the Property. nr any pan thereof. including but not limited to min mum
rents, additional rents, percentage rents. Deficiency rents and liquidated damages following oefaull.
proceeds payable under any policy of insurance covenne the htts of rents resulting from
untena stability caused Icy desire or da,nage to the Property, and liens and rights. whether
statutory, contractual or othcm,sc. in favor of Grantor as the lessor of any of the
constitutional.
Property. and all of Grantors rights to recover monetary amounts from any lessee to bankruptcy
including. without limitation. rights of recovery for use and Occupancy and damage claims arising
out of lease defaults, including rejections. under the rh,nxrupny Reform Act of I978. as amended.
or any other present " future federal or state insolvency. bankruptcy or similar law (all of the
esent
forceoing hercinafter collectively calb!d'A HnnknVcy L.tw'1, together with any sums of
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mane, this may caw uI It any ttmt hr-;"altcr i,," my ' t, a'd payable ro chanter by virtue of env
and all c.tv,hocs. overnJing ruvaio.:. 'c.uscs, Jda: r; 't "s and ant ether amount of any kind or
,haraacr ,arising ur..ter rr. and t rr �,rn :cod future oil. e' and mining lemc covering the
Prx'n / / or any p.+rt th .a and :� cb '.cr amounts paid or n.ing to Grantor under
of
r fW,ua nr an any �r t J :nn and
f '.re to the construction. erection Or r may
•1 f�i< Prnpatr. yuhlert h• wcs'a !� a _el, nrt -,hv eranted by G •Ilasetal Agent to Grantor to
hereof.
Ilcct and rec o no ; .tit art the totegom¢. :ui�;cet to the terms and conditions
a ox
1 bun the a curren.'c god conumu.mce A any UcC+olt. Gdlateral Agent shall have the right. power
and prnilcge (but .hall re under no dos' +) ht tctmmaw such license whereupon Collateral Agent
hall ha.c the right and amhonrv. whether or ma n takes I xxaetoman of the Property. to seek
nlorcmrnt of any mrh lease. gams rot l,, hand .cod m d: in id, nd'ect. receive. sue for and
recover m its own mime anv and all u( the aPwe descrife amounts assi¢ntt1 herehc and In apply'
the ,imh1 collected. fr.i to the pavment of :c.it nahle espenss incident w the collection of the
same. second m the payment nt the Secured indebtedness as pruvided in the Intereredilor
Agreement. and the balance. if anv. to Grantor or other party legally entitled the into: provided.
htw that Collateral Agent shall not be deemed to have talon p(u. ion of the Property
ceps on the sxcrctse d its option to do so. evidenced by its demand and o act for such
purpose. Grantor shall make no assignment or other disposition of the above described amounts
.signed botch". nor, unless Ixrmiued unJLt the Umn Agreement. shall Grantor cancel or amend
,nv such lease. comrat.t. fond or a ny other instrument under which such amounts arc In he paid
or waive, excuse. condone. discount. set n I. u ro
nnPmac or in any manner release any obligation
h,reunder, nor mall Gramor receive or o Ilea any s mh amount thus zssienrl for a perisxl of more
thin one month in advance of the date ok which payment thereof is oac and Grantor shall duly
and punctually observe and perform every obligation to he performed by a under cacti such lease.
mntracL bond or other tnstrumenl and s all not do or permit to be done anything to impair the
sccutity thereof and shall enforce. to lhc erenl such enforcement would be reasonably Pruden:
under the circumstances. cvery obligation of each other party thereto. The assignment contained
in th.s Paragraph 4.1. shall become hull and void upon the release of this Decd of Trust. It shall
never tic necessary for Collateral Agent to institute legal proceedings of any kind whatsoever to
enturce the provisions of this Paragraph 4.1.
AR71CI E V.
fl_�aNwS ?ta tcrinls
i.l. Dee[r . For the purpnx of this Deed of Trust. Grantor. Collateral Agent and
Trustee agree (hat. unless the conical ojherwise specific or requires, the fulltawing terms shall
have the meaning herein specified.
(a) 'H azardous \5aeriltls shall mean (a) any hazardous watt' as defined by the
Resource Conservation and Receiver,, Act of 1976 (42 U.S.C. Section 6901 et xq.). as
amended from time to time. and ( regulations promulgated thereunder. (h) any'haurdow
substance' as defined by the Cantgsrehansive Envimnmentai R:sp:+nsc. Compensation and
! Liability Act of 19M (42 J.S.0 Stctinn 96tH et seq I (' CER , CT, ') as amended from time
to lime, and regulations promulgatO thereunder; (c) asbestos: (dl p lychlorinatcd b(pSenyls;
let undctgn:und storage tanks ether empty. filled or partially tlled with anv substance.
.�' (r) ary xuhsloncc the presence t of which on the Real Prnpenv u prnhihttcd by any
Governmental Requirements (as 9a! :nc'd he!, —); and le) ary other suhsunce'xhich by any
Governmental Requirements req:!!res special handling or notification .d any federal, state
or Itxal governmental en4p' m i collection. storage. treatment. or disposal.
(h) " Hazardous Alatch Is Contamination shall mean the contamination (whether
presrntly existing or hereafter sx'rurtmo of the buildings. t.tcilitics. unt. groundwater, air
or other elcmene on or of the Real Plnperly by Hazardous 61aterials. or the contamination
of the buildings. facilities, soil. groum!watcr, air or other elcmcris nr: or of any other
Pm(crty as a rxult of flazmdoui. \latcnals at any time twhether helore or after the date
of this li•:ed rf I .,I) - manatin from the kcal Property
(cl 'G n,_crnmcn l R uircmenti shall mean all laws. or hn.mccs. rules. and
rcgulauons tit any ( ioscrnmental 'Authoniv ias delins.l belnw) appJj,.,He no Orzmor cr the
Red Pmpcm
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643 B
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(dI 'iov r mcr_ Authority shall :ncac 'hc United States. the state a +unty.
city, or any other political .uhdiyision in which the Real Property is locr.ted, and any other
political subd:vuion. ages or instrumentality oseru5ing jurisdiction over Grantor or the
Real Propene.
5.1 li_r±na•r_ µ'Arran{ s. tirantor hereby ienoscnts and warrants that
tel No %tmcnals have hccn collected• stored, located or disposed
. +f in a manner which violates Applicable Law and no Hazardous Materials which would
haye a material adverse cIfect on the valued the Property are now located nn the Real \
Property, and neither Grantor nor. to the best of Grantor's acual knowledge and belief.
any other person has ever cau.rd or (x""itLJ .in, lazardous Materials which would have
a material adverse e(fcC in :he value of the Prope-ty to be placed. held located or
disp un, under or at the R -al Property I Or any parr thereof:
th) do part of the Real Property is being used nor. to the bat of Grantor's
actua! knowledge and belief, bass been used at any previous time for the disposal, storage,
treatment, processing or other ban line of ( ' Hazardous Materials. nor is any part c[ the
Real Property' atfcuted by any It umdous Materials Contamination:
(c) To the hest lot (,,Into", acto knowledge and belief. ne property adjoining
the Real Property is being used, or has every ,n used at any previous time for the disposal,
storage, treatment. processing or •.whet handling of Hazardous Materials nor is any other
property adjoining the Real Property atfcco�d by Hazardous Materials Contamination.
5.3. G rantor's C ovenants. Grantor agtecs W (a) give notice to Collateral Agent
immediately upon 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.omptly comply with any Governmental Requirements requiring the removal. treatment of disposal
of such Hazardous Materials or Hazardous Materah Contamination and provide Collateral Agent
with satisfactory evidence o` such compliance, and � provide Collateral Agent within thirty (36)
days after demand by Collateral Agent. with a bond, letter of credit or similar financial assurance
nidencing to Collateral Agents reasonable satisfaction that the necessary funds are available to pay
the cost of removing, treating and disposing of such Hazardous Materials or Hazardous Materials
Contamination and discharging any assessments which may be established on the Real Property as
a result thereof. i
5.4. site Assessmcrits Collateral Agent:(by i officers, employees and agents) at any
time and from time to time. either prior to or after Jat occurrence of a Default• may contract for
the services of persons (the' P.aicxcri to perform environmental site assessments (the 'Site
Aueuments on the Real Property for the purpose of determining whether there exists on the
Real Property any environmental condition which could reasonably be expected to result in any
liahility, 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 impd^_ 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 to ncrform both above and below the ground tinting for
environmental damage or the presence of Hazardous Materials on the Real Property and such
other tau tm the Real Property as may he 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 xs may be reasonably requested by the Site
Reviewers to facilitate the Site Assessments and will make available for meeting with the Site
Revicro'ert propriale personnel having knowledge of such matters. The reasonable cost of
performing such Site Assessments, shall he paid by Grantor upon demand of Collateral Agent and
any sKt expenses borne by Collateral Agent .ind licit immediately reimbursed by Grantor shall be
vccured by this Deed of Trutt.
5.5. Indemnificat RegyNless of whether any Site Assessments are conducted
hereunder, if any Default shall have occurred and he continuing or any remedies in respect of the
Real Property are exercised by Collateral .Agent. Gramor shall defend. indemnify and hold harmless
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(,hdleral Agent, Trustee and the tenders L any and all liabilities (tncludme strict liability).
s,.tions demands. penalties. loss;-. opts or :xpcnses i- .¢ludiog. wnhout lirutauon, awrrneys fees
and expenses, and remedial -sus' suits. oats of any settlement or judgment and claims of any and
, kind whatsoever which may t. � or in the :L ore :'.hr.ther belure or alter the release of the
I`ecd of Trust) b• paid. tncurtc l or s..tfered by', oaarted artiest Collaterai :%gent, Trustee or
^•
•c L.cnders by any person •.r ae•uv or eovernmental ae• ncy for, wtih respect m.. as a direct ar
. ndirect result ot, the pac er -c on or under or she es -:ape. seepage, leakage., sptllaec, discharge,
mission or release lrorn �hc Real Property () ' em' Haz vdon Materials or any Hazar J.%as Materials
Contarrmaton or area oat of or result from the environmental condition of the Real Property or
the applicability of znv Governmental Requirements relating to Hazardous Materials (including,
.v ithow limitation. CERCLA o. any federal, slate or local so called "superfund' or'superlicn' laws,
or any code. rule. rceulauon. order or decree promuiemed thereunder); provided. however, the
indemnity provided above shall not apply to any liabilities, actions, demands. penalties. losses. costs
or exnemes, suits. sets of any settlement or lu.lgment and claims of any and every kind whatsoever
lit which are determined in a final, non - appealable judgment by a court of competent jurisdiction
to have been caused by or within the coma, I of Collateral Agent and /or Lenders as a result of
actions in their capacit as beneficiaries of this Deed of Trout and not as a result of any
determination in such judgrc^_nt or otherwise +hat any covenants, condition or provisions in any of
the Financing Documents gr c or p - t to giyc control . ver Grantor or any of the Real Property
or ; ii) which is the result of an eve '..tat 'sots after foreckuure of the Property (.tr any portion
;hereof) or :he taking of a decd in lieu of foreclosure covering the Property ((it any portion
_ thereof), unless such event occurs as a result of or arises out of a Hazardoe, Materials
Contamination or an evironmental condition of the Real Property that occurred or existed prior
to such foreclosure or ouch taking of a deed in lieu of foreclosure. The representations, covenants.
warranties and indemnifications contained in this Section shall survive the release of this Deed of
l Trust. FqKthc purposes of this; 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.
officehi. employees and agents of such entity and any persons or entities owned or controlled by
or'affiliated with Collators/ Agent or either Lender, and their respective directors. officers,
employees and agent.,. i
5.6. Collatera A gent's Right to Remit, Hazardous Materials Collateral Agent shall
have the right but not the obligation, prior or su quent to the accurrence 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 oL or otherwise deal with, my
Hazardous Materials or Hazardous Materials Contamination on the Real Property following receipt
of any notice from any person or entity averting the existence of any Hxzardouu Materials or
Hazardous Materials Contamination pertaining to 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
I which, in Collateral Agents reasonable opinion, ,could Impardiu Collateral Agent's security under
this Deed of Trust. All reasonable costs and expenses paid or incurred by Collateral Agent in the
exercise of any such rights shall he the Secured Indebtedness secured by this Deed of Trust and
shall be payable by Grantor upon demand.
I
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ARTICLE VI.
Miscellaneous
6.1. Release If all of the Secured Indebtedness be finally and fully paid, the Propery
shall become wholly clear of the liens, security interests, conveyances and assignments evidenced
hereby. which shall be released by Collateral Agent at Grantor's coal 'tyyy
6.2. Waher la v C ollateral Agent . Subject to the terms of the Intercrcditor Agreement. , .{y
Collateral Agent may at anv time and from time to time in writing (a) warty- compliance by Grantor
with any covenant herein made by Grantor to the extent and in the manner specified in such
writing; (b) consent to Grantor doing any act which Grantor hereunder is prohibited from doirtlk
nr consent to Grantor failing to do any act which Grantor hereunder is required to do, to the\
extent and in the manner specified in such writing: (c) release any part of the Property, or any
interest therein. from the lien and security interest of this Deed of Trust without the joinder of the -
Trustee, or (d) release any party liable, either dir or indirectly, for the Secured Indebtedness
or for any covenant herein or in any other insir now or hereafter securing the payment of
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the F ured Indo!v.' _.•a :.a•p :•inng cuing the I .,h :bry of .u:y :cot. .rty.
:a shall in any war :mnau the rights vl Collateal tint here alder except to the extent spci;fic.ally
.I Ric LA to by Ca l Lnor al .\gent :n such . cone
6.3. ,, , ojhx 1•yS ;t1 ; \rcpt. lac II n, security mcrest and other security rights of
Collateral Agent and tcnden hereunder shall colt he impaired by any indulgence. mosstonum or
release granted by ( ollaseral Agent, mcludirg u; not limited to Ia) any renewal. extension, ic_rl ase
or modification which G•lla Agent or any Icnder may Brant with respect to any Secured
Indebtedness. (b) any surrender. :•mpor sc. souse, renewal. extension, exchange or substitution
u hieh Collateral Agent or an. Icrider nits ;r.,nt ,a respect of rh,- Property. or any part thereof or
am' intcrat therein fcxccpt •„ it',' extent sletatiodly surrendcrod. compromised, released, renewed,
extended. exchanged or subsututedl, or (ct anv release or indulgence granted to any endorser.
euar.mtor or surer of con Sccurrd IndcMcdne.s. The taking of additional security by Collateral
Agent shall not release or impair the lien, yecurir, interest or other security rights of Coli•letal
Acent hereunder or affect thv liahility of Granuat 'ar of any endurscr or guarantor or other surety
or Improve the right of any mi junior itcnMslder in the Property.
1
6.4. Pi to uL(ls,llateral A err Subje�t to the terms of the Intercreditor Agreement,
t' 11:tcral Accra may w'Ile :mv D11 ralt nr oth r default without waiving any other prior or
.uhscquent Default or tither detmdr Collaeral Agent may remedy any Default or other default
w nF.oul waiting the Default ur other default remrdie4 Neither the failure by Collateral Agent to
excrase, nor the delay by C. tllararal .Agent in exercising. am right, power or remedy upon any
Default or other default shall be construed a 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 remedy 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
provision 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 extemt,
therein specified. No notice to or demand on Grantor in any case shall of itself entitle Grantor ,
.o any other or further notice or demand in similar ,ar other circumstances. Acceptance try
Collateral Agent of any payment in an amount Ices than the amount then due on any Secured
Indebtedness shall he deemed an acceptance on �ccoum only and shall not in any way affect the
existence of a Default or other default hereunder'r
6.5. Rcmoducnon as tmanctn
of this Decd of Trust or of any financing
as a financing statement.
t. Acartttm. photographic or other reproduction
relating to this Deed of Tfsut shall be sufficient
6.6. Future Flint This feed of Trus
as a future filing with respect to all futures incl
record in the real property records of the count
situated. This Deed of Trust shall also be effecti
the like (including nil and gas) and accounts subp
Commercial Code, u amended, and is to be file
county where the Property s situated. The ma
sign: Lure of Grantor to thi Deed of Trust an
information conceming the security intcrat may
931000. Dallas, Texas 75293.1001. Grantor does
shat be effective as a financing statement filed
ided within the Property and is to be filed for
where the Property (including said futures) is
e w a Financing statement covering minerals or
:t to Scction 9.103(5) of the Colorado Uniform
for record in the real property records of the
ling adds. of Grantor is set forth below the
the address of Collateral Agent from which
c obtained is 901 Stain Street. Post Office Box
Lave an intcrat of record in she Real Property.
6.7. Filing an d 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, re-recorded and wfrled 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 reeling taxes. fees and other charges.
6.9. Dealing with Su ccessor. In the event the ownership of the Property or any part
thereof becomes seated in a person other than Grantor, 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
discharging Grantor's liat ^.lity hacunder or for the payment of the Se.:urcd Indebtedness. No sale
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of the Property, no I,vt<ar.nct on our pn•. at C.-. :I terel I,tnl or either Lender and no extension \
of the time for the pt. vent .d .t: of ii, 4'. . ! Irdcbtxdrtes eivun by Collateral Agent or either
Lender shall operate m r. Ieme. :J.. ., his gn ..... change o mlcct, in whole or in par_ the liability
of Grantor hereunder or ,,r the or , ,.,, v. Cued L.J, htrdness ar the liali,hty of any other
on hereunder or '.a the ; a- „!.• ! ._ J. I::dcnmdnrss. except to the event proceeds
nl a;,v such sale are aypbc.; is r, :,...vc. •n 1 R.
ui,i r f n.,,re Lhe mans and all other Securnl
Indebtedness; which m . i . s I 11. i7 I •te bs r, m , h o
all tc frhlc at the place
designated in the Y ,es and or F n n ng Iv au eQs or d no such t,vcnatioe is made at the
, _ I �• .,Ilire of Collateral Agent at the iddros, mdu u,d n this Ihed of Trot, ur at such other place in
the continental United States .t ( ollfiter,11 \gc-, n•w dcs gnate In writing.
is
6.11) . Suhngauon To the ct!, n, I t i t pr.rcejle of the Note% are used lit pay indebtedness
., secured by any outstanding lien, n•, an:': m!crest, ch u c or prior encumbrance against the Propertc,
such proceeds hate been advanced •�v Le,� trio at Brant r s request and Lenders shall he subrogated
to any and all rights. security :nt,,c,t, :cod liens owned or held by any owner it holder of such
outstanding liens, security interests. charges or encu branch, irrespective of whether said liens.
security interests. charges ur encumhr.mccs arc releaiscd. provided, howoter, that the terms and
provisions of this Decd of Trues %1 - govern the ! rights and remedies of Lenders and shall
supersede the terms, provisions, rights ,nd remedir., under and pursuant to the instruments creating
the lien or liens to which Ix, kit s are suhrugalcd hereunder.
6.11 Apoli all e _af Indebted! - css. If :my punt of the Secured Indebtedness cannot be
lawfully secured by this Deed of Irmo or if any part of the Property cannot be lawfully subject
.a the lien and security interest hcrcol to the full event of such indebtedness, then all payments
made shall be applied on said indebtedness first to I dischatme of that portion thereof which is
unsecured by this Deed of Trust.
6.12 Usurv It is the intent of the Lenders and Grantor in the execution of the Notes,
this Deed of Trout. the other Financing D and all other instruments now or hereafter
securing the Nola or executed in connection therewith or under any other written or oral
agreement by the undersigned ;n 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 Trust, the other Financing Documents or any other instrument securing the Notes of
executed in •bnnection 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 maximum its: merest rate
permitted to be charged 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 'Dotes or on indebtedness arising under any instrument
securing the Notes or under any of the other Financing Documents, or in any other written or oral
agreement by Grarl in favor of Lendcrs and/or Collateral Agent. at a rate in excess of the
-� maximum interest that may be lawfully charged under applicable law, and the provisions of this
Paragraph 6.JZ shall control aver all . other provisions of tic Noma, this Deed of Treat. the other
Financing,, Zments and any other instruments new or It - after securing the Notes or executed
in connection herewith or any other oral or written agretni :s which may he in apparent conflict
hercv ith. All interest paid or agreed to be paid to Ixhders and'or Collateral Agent shall, to the
extent permitted by applicable law, be amortized, proratdd, 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 period! 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 Notes, and as a result thereof the interest received for the
actual period of existence of the ban nidenced 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 shat' collect monies and/or any other thing of
value which arc deemed to constitute interest which world increase the effective interest rate on
the Notes or the other Secured Indebtedness to a rate �n excess of that permitted to be charged
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by applicable law an amount equal to interest •.n exec's el the law b,l rate shall, upon such
Jere rminalron, at the option of [ <nden �ndor Wllatn ai ' �14wes hen huts and n ¢ or the l Other
II to Grantor or credited against the prinupai balance of the
5ccured Indebtedness. wsthout rusher penalty to suds hol.kt By csccut,on of lhu Deed �.if Trust. and
Grantor acknowledges that it believes the loan, cvtdcn. cJ h. the No tes rtes loan 's to ts fan
ag that if. at any time. Grantor should have rcmm to be
es m!iuun, and Grantor agrees that
it will give lenders en;lor Collateral Agent ILCe of '.us
landen andor Collateral Agent shall have 911 days -till re apt of such notice• in .. hich to make
,rprupriate refund or other adjustment in order ,, come' such vonditwn if in fall such c %mdrion
!f exuu. As used in this Paragraph C12. "interest' means anv sum that must he treated as interest
under applicable law m Paragraph t.1 whether a loan is rurutn. THE ABLE
E TERM APPLICABLE
LAW AS USED D(TIJIS PARAGRAPH 6.12 SLIAI.L MEAN THE TAWS OF THE SPATE
OR T UN
HI; LAWS OFTHE TLED STA11T. WMCIfEVER LAWS ALLOW
OF COIARA
TIIE GRFA,T RATE OF [NTERFST, AS S1 JAWS NOW EXIST OR MAY BE
C,I ANG OR AMENDED OR COME INTO F- FTI.CT IN nIE Il1TVRE
n.l t. Nolice. Anv notice, request, demand or other communication require) or permitted
" hereunder. or under the Notes, or under any other instrument securing the payment of the Notes
(unless otherwise cxprccdv provided therein) shall be given i.; witting by (a) personal deli•rcry, or
(h) expedited delivery service with proof of dchser'•, or (e) United States >lail, postage prepaid.
retislercd or certified mail. return receipt requested, or (d) prepaid telegram, telex of tclecopy. sent
to the intended addressee at the address shown on the signature page of this Decd of Trust. or to
such different address as the addressee shall have d'-s, by written notice sent in accordance
herewith, and shall (except as wherwise provided her..n) he deemed to have been given and
received either at 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 to the manner provided herein, or to the case
of telegram. telex or Iclecopy, open receipt
6.14. uccessorn std As• The terms. provisions. covenants and conditions hereof shall
be binding upon Grantor. and he representatives, successors and assigns of Grantor including all
succesmn in interest of Grantor in end to all or any part of the Property, and shall inure to the
benefit of the Trustee and C oIlateral Agent and their respective heirs. successors, substitutes and
ng with the land All references in this Deed of Trust
assigns and shall constitute covenants runni
to Grantor, Trustee or Collateral Agent shall h� deemed to include all such heirs, devisees,
representatives, sucu'son suhtiules and assigns.
5.15. Severabil i;y. A determination that any provision o f this Deed of Two is
unenforceable or invalid shall not affect he 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 or unenforceable shall not affect the enforceability or validity of such
provision a it may apply to any other perstane or circumstances.
6.16. Gender 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 usr'cm otherwise requires. \
6.17. Cot nterearts 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. All such counterparts
shall be construed together and shall con<_utute one instrument.
6.18. RieRgritng Beau'rements Granter ag'. ce s 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
Collate rat Agent to furnish any governmental authority, and further agrees upon request (if f J Collateral Agent with evidence of such compliance.
/. 6.19. Headin . The paragraph headings contained in this Deed of Trust arc for
/ convenience only and shall in no ova)' enlarge or Ilimit .he scope or meanine of the various and
several paragraphs hereof.
6.20. Consent of Collateral Agent F_x�cvt where otherwise provided herein, in any
instance hereunder where the approval. consent or the cxcrCnc c n( Culbncral Agem
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I. .quired, the calming 01 d - :. h tj _J 0I ,nn..nl and the exer, I,, if such judgrncnl
.bail IV within Iho "Ic J"', t \,it,. .' . \ga "it, ind Collateral Act n l shall nut. for am'
it t% in or to ;Ills txmnl, t c rt.l. ..... er••:•.I . I, I, plin d or consent or evercl,w such judgment
in ;ny parn,iI manner. I mnbit nca of either the rcyus Ill Collateral
Atz ml's judpnc in
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r..21 \I Illic :nfor r It:, o .Im Ih. I in m:ing Docurni may dk he mrdilicd or
lu rmin:ual by a wunen Ile :n. m. nl .a , ,loom.; nw 11L Wed by the party against whom enforcement
cl'the mtdiflcati,nl nr !annn:amm I. ,v.%cocd. Ary :dieted mrdi6eatiem or Ierminatam which is
001 so documented shall nnl `•' elloc usr as to any p.uly-
6.22 ENTIRE _\(!vFI \1F_N 1. 11I1S DEED OF TRUST. TOGETHER WITH THE
PRUDENTIAL NOTE AGR I'I -MI NI'. 1III- LOAN AGREEMENT, THE NOTES AND THE
OTHER SEC'URI'TY DCK C! II N "IS IALI_ AS IV 1 1 FECF ON THE DA "IT. HEREOF AND
AS TIfF SANIF MAY P.F. III RI AI - II .R FROST IWE IOTIME) REPRESENTTHE FINAL
AGRFLiM FNT BFTWFI N 'I Ill -. PARI II', AND MAY NOT BE CONTRADICTED gy
\
LVIDENCL OF PRIOR C'ON'I 1511'f1RANf.UCS OR SGBSEQUENTORAL AGREEMENTS \
OFTHE PARTIES. 'Tiff RE ARL \O L'NSCPi'F1 "F.N ORAL AGREEMENTS BETWEEN THE 1
PARTIES.
6.21. _G overnint Law. 77115 DEISD OF TRUST SHALT. BE CONSTRUED,
INneRPRF•TED, FNFORf_TD AND GOVERNED BY AND IN ACCORDANCE WFFFI THE
CAWS OF Tllli SIATIi OF COI.ORADO AND TIIF. LAWS OF I71E UNITED STATES
APPLICABLE TO TRANSACTIONS WFn [IN I SUCH `TATS
IN WITNIiSS WHERI} )F. Grantor has licccuted this Decd of Trust, Assignment of Lcasxs
and Rents, Security Agreement and I in.worg Statement on this 27th day of March. 1941, to be
effective as of January 15. Prll.
PACE FOODS, INC.,
a Texas corporation
By :Y' 9,("d,
1 R.1 ands
Title: Executive Vice President -ChieT
Operating Oficcr
I Address: 1750 North Pan Am Expressway
San Antonia. Texas 79219
Attention: Kathy Maxfield
STATE OF TEXAS 4
s
COUNTY OF BEXAR 4
This instrument was acknowledged before me un the 27th day of March. 1991, by R. J.
Sands, Executive Vice President -Chief Operating Officer of Pace RxxJx Inc., a Tl'<ax corporation.
on behalf of said core ratiai. 1
i
My Commis c 1[spilr%
Moan Puhlic. Slate of Texas
Print name of Notary here
Sby a 19p
1i 1 \ •` Mr fume tsonl.
_
APRIL 11. 1502 2
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Lots A and 9, 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.
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i. The right if the proprietor of a vein or lode to
extract and remove his ore therefrom should the same
be found to penetrate or intersect the Real Property,
as reserved in 'United States Patent recorded
October 29. 1892 in Book 55 at Page 32 of the Pitkin
County Clerk and Recorders Records.
2. Right of way granted to The Mountain States Telephone
and Telegraph 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.
Vagneur for sole use and benefit of Lot 1 of Snobble
Subdivision, recorded in Book 189 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 Book 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, an,i (ii) Book 251 at Page 962 of the Pitkin \
County Clerk and Recordets Records.
i
6. Easements and encroachment-, set forth in Ben Deane
"Lot Split" Subdivision 'Plat recorded in Plat Book 16
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
portion of said land;
(c) 24 foot driveway Id. utility easement over
Parcel B;
(d) Sewer easement affecting a portion of said
land;
(e) Encroachment of a *hod onto the sewer line
easement; and
(f) Encroachment by overlap of the 24 foot drive
and utility easement onto the sewer
easement.
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 Fu. l Subdivision Process for the
Purpose of the Ben Deana "Lot Split" Subdivision and
Exemption from the Growth Management Plat for a Single
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643 986
Family Dwell ir:g T % ,, neon. recorded October 1, 1984 in
Pook 474 at Page 2 ^9 of the Pitkin County Clerk and
recorders Records.
9. Any loss or darage as a result of any possitle crarlan
with Castle Creek Subdivision, and any final
disposition regarding Civil Action Case No. 3448, as
shove on survey :onducted and prepared by,Aspen Survey
Ergireers, Inc., dated January, L991 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
=ad location by other than natural causes, or
alteration through accretion, reliction. erosion or
avulsion of the center thread, bank, channel or flo4
of waters in the Roaring Fork River lying within the
Real Property, and any question a6 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 oear the
waters and prerent and past bed and banks of the
Roaring Fork River.
12. Zonin? restrictions, easements, rights of ways,
licenses, restrictions on the use of real property or
minor irregularities in title thereto which do not
have a Material Adverse Eft9ct.
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Rcu 474 mGE206
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 k Ben Deane "Lot Split" Subdivision recorded in Boo Page
__ 5 7 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
,n4n
6r 1 , 1984, at Book 1_ Page _ in the
office of the Pitkin County Clerk and Recorder.
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
2
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
1
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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
,G ?x 474 PAGE208
-- -
a peribd 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 this Declaration has been duly executed
thi '- day of 1984.
Ben Deane
CASTLn Cj1EEK
SOCIATES, LTD.
By
Ben Deane, Gener&l Partner
STATE OF COLORADO )
ss.
County of Pitkin )
a foregoing was acknowledged before me this .� day of
1984, by Ben Deane.
WITNESS MY HAND AND OFFICIAL SEAL.
�_My commission expires:
�'•: n _
A Iq & n c
- Notary Public
n
Address
STATE OF COLORADO )
) ss.
County of Pitkin )
foregoing was acknowledged - before me this ('k. day of
� The
L7Ca -_ 1984, by Ben Deane as General
Partner o Cast a Creek Associates, Ltd.
WITNESS MY HAND AND OFFICIAL SEAL
/
My commission expires: `� /. ��•��/
Not ry/ public
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ooa 474 PACP209
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STATEMENT OF EXCEPTION FROM THE FULL SUBDIVISION PROCESS
FOR THE PURPOSE OF THE BEN DEANS "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 8) 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
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 75.51 feet to the Northwest cor-
e 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
46'14' East 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 HE 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
- -- vw 474 Pa6E210
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herein conveyed N65'21" 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-
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.
i
Kathryn S.,Koch, City Clerk
474 Par?11
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
A � cy 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 i' day of — J.L.: nL.�..._. ._ , 1984.
0 0
W1�idm L. Stir ing, May
$�
Ark ". !I
Kathryn S. J(och, City Clerk
--
APPROVED AS TO FORM:
�
Paul J. TacJd une, 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.
i
Kathryn S.,Koch, City Clerk
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GENERAL WARRANTY
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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;
S. 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 94e2
eoaK 564 P=31L
P.03
all reference being to the real property records of Pitkin
County, Colorado.
SIGNED this _�I_ day of May, 1988.
AN
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F, VAP R.
STATE OF
LOUISIANA )
PARISH _OF OUAP -WA ss.
The foregoing instrument was acknowledged before me
this 14— day of May, 1988, by Elizabeth D. Cutler.
WITNESS my hand and official seal.
My commission expires:
(SEAL)
Notary Publi
rwh28.09
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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
I/( (I qr,
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
111 -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
epz.ph
ASPEN /PITKIN
COMMUNITY 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 worldng 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,
Suzanne Wolff
Administrative Assistant
VZ-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.
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c15E Appuc: ON rro'Z4
1) Pto3cct Name
KIT GOLDSBURY
2) project 1,0ation 700 Sneaky L Lot A, Ben Deane Lot Split,
Aspen Colorado 81611
(indicate stiroet address, lot & block nmber, legal deSCri i on when
approp
3) Present Zoning R -30 P.U.D. 4) lot Size 3.2308. Acres
5) Applicant's Name, Address & Phone $ KIT GOLDSBURY (210)930 -1251
III -L AABC Aspen Colorado 81611 (970)9 -571
7) Type of Application (please check all that apply):
Conditional Use rnncepWal SPA Historic Lev_
Special Peview Final SPA _ Final Historic Dev_
8040 Greentine
Final PUD
Notmlain view Plane _ division
Lot Split/Tot Line
Adjust Dent
Miler Historic D--v_
historic Demolition
_ historic Designation
�n•
Oil
Single family residence - 6870 s f. 6 bedrooms including exi sting
caretaker s uite (488 so f Lot A Ben Deane Lot Sot it
9) Description of Development Application .
Conditional use approval for an existing 'bandit unit' to leg
daretaker, deed restricted unit.
lo) [[aye you attached the follovirrJ?
V
Response to Attu 2, Hjnimm, Sd}mttS Oontcnts
v, nesporise to At� 3, Speci-fic Si h„ cs lon 030tents
rbaSporLSe to Attacm»st 4, 12eview Standards for Your Application
200 Concorde Plaza Suite 620
San Antonio
TX 78216 '
6)
Representatives Na '. Add & Phone
FINHOLM &
FINHOLM ARCHITECTS INC.
III -L AABC Aspen Colorado 81611 (970)9 -571
7) Type of Application (please check all that apply):
Conditional Use rnncepWal SPA Historic Lev_
Special Peview Final SPA _ Final Historic Dev_
8040 Greentine
Final PUD
Notmlain view Plane _ division
Lot Split/Tot Line
Adjust Dent
Miler Historic D--v_
historic Demolition
_ historic Designation
�n•
Oil
Single family residence - 6870 s f. 6 bedrooms including exi sting
caretaker s uite (488 so f Lot A Ben Deane Lot Sot it
9) Description of Development Application .
Conditional use approval for an existing 'bandit unit' to leg
daretaker, deed restricted unit.
lo) [[aye you attached the follovirrJ?
V
Response to Attu 2, Hjnimm, Sd}mttS Oontcnts
v, nesporise to At� 3, Speci-fic Si h„ cs lon 030tents
rbaSporLSe to Attacm»st 4, 12eview Standards for 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 remodeVaddition 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,
1 T
Nicole Piercy Finh
Architect
F I N H O L M a F I N H O L M
ARCHITECTS, I N C O R P O R A T E S A I A
POST OFFICE BOX 2839 ASPEN. COLORADO 81612
TELEPHONE 303- 925 -5713 FACSIMILE 303 -920 -4471
06 -06 -95 10:34 ID =930 2462 P.02
tit Goldsbury
200 Concorde Plaza
Suite 620
San Antonlo, 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 8, Ben Deane Lot Split. Aspen, Colorado, commonly known as
700 Sneaky Lane, Aspen, Colorado 81811 and 1 hereby authorize David Flnholm and
Nioole Plercy Flnholm of Finholm & Flnholm Architects. Inc., 111 -L Aspen Airport
Business Center, Aspen, Colorado 81611 (970 )925.5713 to represent me In this
application_
.s
Data
200 Concorde Plaza/
Suite 620
San Antonio, TX 78218
(210)930 -1251
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GENERAL WARRANTY
DEE
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m
i
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 2982 P.03
II Boox 564 PAGE31'
all reference being to the real property records of Pitkin
County, Colorado.
SIGNED this _n_ day of May, 1988.
LOUISIANA
STATE OF3XLXKN" )
PARISH OF OUACHITA ) ss.
I � The foregoing instrument was acknowledged before me
this t day of May, 1988, by Elizabeth D. Cutler.
WITNESS my hand and official seal.
My commission expires:
( SEAL)
Notary Pu liO
rwh28.09
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