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Land Use Case.311 Gillespie St.HPC29-97
2735-121-27-001 HPC29-97 -Sam Houston Minor HPC 311 Gillespie Street --*.. ...1 -42*5 6% 3 14 2-5 1 'pl 7 RESOLUTION OF THE ASPEN HISTORIC PRESERVATION COMMISSION APPROVING AN APPLICATION FOR MINOR DEVELOPMENT AT 311 GILLESPIE STREET, ASPEN, COLORADO RESOLUTION NO. , SERIES OF 1997 WHEREAS the applicant, Sam Houston, has requested minor development approval for the property located at 311 Gillespie Street. The property is a designated landmark; and WHEREAS all development in an "H," Historic Overlay District or development involving a historic landmark must meet all four Development Review Standards of Section 26.72.010(D) of the Aspen Land Use Code in order for HPC to grant approval, namely: 1. Standard: The proposed development is compatible in general design, massing and volume, scale and site plan with designated historic structures located on the parcel and with development on adjacent parcels when the subject site is in a "H," Historic Overlay District or is adjacent to an Historic Landmark. 2. Standard: The proposed development reflects and is consistent with the character of the neighborhood of the parcel proposed for development. 3. Standard: The proposed development enhances or does not detract from the historic significance of designated historic structures located on the parcel proposed for development or on adjacent parcels. 4. Standard: The proposed development enhances or does not diminish from the architectural character or integrity of a designated historic structure or part thereof, and WHEREAS, Amy Amidon, in her staff report dated September 10,1997, recommended approval as proposed; and WHEREAS, the application was reviewed at a regular meeting of the Historic Preservation Commission on September 10,1997, at which the Commission considered and approved the application without conditions by a vote of 7-0. NOW, THEREFORE, BE IT RESOLVED: That minor development approval for 311 Gillespie Street, Aspen, Colorado, be approved without conditions. APPROVED BY THE COMMISSION at its regular meeting on the day of ,1997. HISTORIC PRESERVATION COMMISSION Chairman ATTEST: Chief Deputy Clerk F ' ./ ././. 'U- .fr I . .. -31.5 4 -I -* *0.6 .. I .. 1 . I .4 .., j''ll-pl~ ....:. ... 9- . . - - 11 - . .4 ... .. . ..A -7-imil/ -4 0.- ' ~ ' *~ , -k.4.- 192~ ., 14'. .:.41 i L. 4. 3.. , II . . " '21 -1.4.,I™ f I • b. •4• . - 1.- 1 - - - f.- ASPEN HISTORIC . --ESERVATION COMMISSION MINUTES OF SEPTEMBER 24. 1997 Chair-person Suzarmah Reid called the meeting to order at 5:00 p.m. Present were Roger Moyer, Mark Onorofski, Melanie Roschko, Gilbert Sanchez, Mary Hirsch and Heidi Friedland. Excused were Susan Dodington and Jeffrey Halferty. 311 GILLESPIE - MINOR Amy Guthrie informed the board that Sam Houston has purchased the ski barn at the corner of Lake and Gillespie, Mary Martin's old house at 311 Gillespie. There is an addition toward the back that is visible from Lake Avenue but it is not historic construction. The request is to replace a window on the second floor and a slider window with a large fixed window that would match the existing window. Sam Houston, owner stated that the header on the windows would match. He also stated that the trim would match the window on the right which is indicated in the photo copy. MOTION: Mark moved to approve the minor development proposal for a new fixed -window to match the existing second floor fixed window at 311 Gillespie; second by Roger. All in favor, motion carried. 447 E. COOPER, Stefan Kaelin, awning Amy informed the board that the shop is in the Guido's building. The request is for a dark red (bavarian theme) awning in the front of the shop. Staff has concerns about how the awning is attached to the building, suspended from the balcony and projects out from the building. Stefan Kaelin, owner o f the store reported that the balcony projects 3 feet out from the store and there is no other way to hang the awning except from the balcony. The board inquired about the need for the awning and if the existing halogen light would remain. 1 :.. ' ~~~~~'i~~-~ '~' ~~~- ·~-- ~'~-·~·-f~·E€t..fR'·--f-~' '-.·2£>:1 PARCEL ID:~2735-121-27-001 . DATE RCVD: |09/~9/97 # COPIES:~ CASENOME?321 -1 - CASE NAME: Sam Houston PLNR:~Amy · .1.94 'F!1,OJ ABDR:~ 311 W Gillespie Aspen, Co 81611 CAS€!YP:[Minor HPC STEPH F C OWNJAPP:|Sam Houston ADR~311 W Gillespie C/S/Z~Aspen, Co 81611 PHN~925-7135 REP:| ADR4 C/S/Z:j PHN~ ' &*1~,F·-·.....TW*6 2· FEES DUE:~120 FEES'RCVD11 20 .STAT:] 4·REFERRALS| _ REF:| Bl ' DUE* · MTGDATE REVBODY PH NOTICED· ./t'- .2 " ·:. F ..·-. r :.piq,-:-4 . · ·tk , r .- -i , 'tj·J··:p DATE OF FINAL ACTION:1 BOCC\CC: REMARKS| PZ: ' ,-· ' ' /'324;~I. BOA: CLOSED:] BY: 1 HRG OFF: PLAT SUBMITD: ~ PLAT (BK,PG):| ADMIN: r 1 ./ 4 .... 1.!:9 . MEMORANDUM TO: Aspen Historic Preservation Commission UP- 1 k y THRU: Stan Clauson, Community Development Directgf /1 Julie Ann Woods, Deputy Planning Director I N i I R - FROM: Amy Amidon, Historic Preservation Officer ~ RE: 311 Gillespie- minor DATE: September 10,1997 SUMMARY: This structure is an original Victorian carriage house, which served the home to the west. It has had numerous alterations, but is a designated landmark. The owner wishes to alter a window on the rear of the building. Staff recommends approval. APPLICANT: Sam Houston, owner. LOCATION: 311 Gillespie Street. PROJECT SUMMARY AND REVIEW PROCESS: All development in an "H," Historic Overlay District, or development involving a historic landmark must meet all four Development Review Standards found in Section 26.72.010(D) of the Aspen Land Use Code in order for HPC to grant approval. 1. Standard: The proposed development is compatible in general design, massing and volume, scale and site plan with designated historic structures located on the parcel and with development on adjacent parcels when the subject site is in a "H," Historic Overlay District or is adjacent to an Historic Landmark. For Historic Landmarks where proposed development would extend into front yard, side yard and rear yard setbacks, extend into the minimum distance between buildings on the lot or exceed the allowed floor area by up to five hundred (500) square feet or the allowed site covered by up to five (5) percent, HPC may grant such variances after making a finding that such variation is more compatible in character with the historic landmark and the neighborhood, than would be development in accord with dimensional requirements. In no event shall variations pursuant to this section exceed those variations allowed under the Cottage Infill Program for detached accessory dwelling units, pursuant to Section 26.40.090(B)(2). Response: An addition has been made on the rear (south) side of the carriage house. On this elevation, there are several fixed windows and one horizontal slider window. The applicant proposes to replace the slider window to match the fixed windows. Staff finds that double hung windows would be more appropriate for the building, but the applicant should not be required to replace all the fixed windows at this time. Staff recommends the new fixed window be approved. 2. Standard: The proposed development reflects and is consistent with the character of the neighborhood of the parcel proposed for development. Response: The proposal does not affect the character of the neighborhood. 3. Standard: The proposed development enhances or does not detract from the historic significance of designated historic structures located on the parcel proposed for development or on adjacent parcels. Response: The proposal does not detract from the historic significance of the building. 4. Standard: The proposed development enhances or does not diminish from the architectural character and integrity of a designated historic structure or part thereof. Response: The proposal does not further diminish the architectural character and integrity of the building. ALTERNATIVES: The HPC may consider any of the following alternatives: • Approve the Minor Development application as submitted. • Approve the Minor Development application with conditions to be met prior to issuance of a building permit. • Table action to allow the applicant further time for restudy. (Specific recommendations should be offered.) • Deny Minor Development approval finding that the application does not meet the Development Review Standards. RECOMMENDATION: Staff recommends that HPC approve the minor development proposal for a new fixed window to match the existing second floor fixed window. RECOMMENDED MOTION: "I move to approve the minor development proposal for a new fixed window to match the existing second floor fixed window." ...3 . 4 - . 1,1 . d.* 01•6 4 1 4. 100 . r · . 33.-~ · ..11. Af . A t& ~74421*6324 - - - At ~ C 14$41& C trab#YJ,- -:~ :*•122;-'mmall"/Id/Al£#4L#'A - 2. - * < -3 1- 24 rk , , D.~-€3-2- lillil---I--I..< U 4-I-. . $ -0. -. I , $+- - 7 '-...+10-'' 1. -- , i:e@~4 - .* ,~ le¥. I. iqu 44. ...24,4 ~ b * C. . 1 N :d I. 44 . - m : '.6 >3 5- 5. f-1 -r.4 .4 - 1 · 1 1- Il: 1 1.4 :,· 4.. _ .- 4 - - - - 2.93 f _- - September 4, 1997 Amy Amidon Aspen/Pitkin Community Development Dear Amy: Following is the information required for my submission: 1. Applicant: Sam Houston 311 W. Gillespie Aspen, CO 81611 970/ 925-7135 2. Legal Description of 311 W. Gillespie: Unit B, Martin Condominiums, according to the Condominium Map thereof recorded May 9,1989 in Plat Book 22 at Page 51, and as defined and described in the Condominium Declaration recorded June 22,1989 in Book 595 at Page 714 as Reception No. 312662 and First Amendment to the Condominium Declaration for Martin Condominiums, recorded September 18, 1995 in Book 793 at Page 901. 3. See attached new evidence of Title showing Sam Houston' s ownership. 4. See attached vicinity map locating house in the west end of Aspen. If you need further information, please call me at 920-3000 (office) or 925-7135 (home). Sincerely, /1 it*A-> )ustoh Enclosures 01.:E ASPEN MANOR LODGE 'U..Akijf* i'~*; F- W 'M ' ' 9 u. 6340 A_.8 .... -44· i, ·*94·Ah ~:/1 ~Df TEi " -~ .. A /11/ . 74 'fht.-'<17 1. "4 z LL N.> 1 ' 1···, r CL 6.1 /9 02-14·- 4 :·, 24~ 1,%1 2-4.1. L.©3 , , 4,71 j\, 1.. -4€ f"-2)BA-iz-*~5. 4 .·i•, A...1, l.,init,crl ·'rl 'de. . 1{ f r--IN=-li :\ ''<'.~ :..J-~' rk' it' fiX'-€· . -' ' 4 •, 4 01YfrhooGE '·1 -· 1- il·#An·Ti~.W 9- il f - . , , tti ·-· . .. 4 COOPER AVE. . SNOW QUEEN 'A.. C LIMELITE LODGE _ - - . VICTORIA'! -5&1·14 i, 1 1 6 ¥ 210 COOPEr BED & BREAKFAS1 THE FIRESIDE LODGE ~ 1-1,--1 A . 1 --M ,=~ coo~PER FN~ n 0 --n 49 ~:i, ~· 13 ; r n -//4/14' r. STREET ~C-' 11.p·41<61"U 2 - nt/Ille-LI-1-13 ¥„ Loris!211' -firkA -81.P-~ !?I• s~uc>los„ic,i-t -U t. 15 1~)1~1%~ tz 0103/2:42 ,el 341 , *'9% 3- / Ppit :i·74 -; ->/-*,3 0·51(3: :* 4 *Ai:··: : 17 i 17 1470.. Uj L . 4 - ff· t,pen le' I.irifc,1 862: wir '-CY 1114 521-- - 52 7- 21 - '·te~ -9~~ m fla I ~~' EfISICA MEi N. I TIE SNOWFLIKE 1Nt. ner - 6.,· lourier , fl Wintr- boort Clitflir,/ kent: . 73771 970-92.0-039 4 11 1 - -rvt·. "alaci THE Ke, IEARTHSTON - - COTTONWOOD - SHADOW MOUN-AIN W CONDON'INIUM- _,5 LODC E Sl. MORTIZ LODGE r~44 ProoortiON= -== * HOUS -'r- Cong f / 4 In= 6-8.' ICE=g-===--' .-77*- --1 . p= 6.2 115 L: - -12.4 +7.-1 'r 7. /2- 1 41 r. ,-46 412493 1... -iliC%.,La6 spen ountain Restaurant . £c-1.- 2 0 '6»411 ,allery ~7r==7==. 1 . ¢ 1ty-:U=p·02 L-cht]77~~ ~ < 4 0/ie PlA~ '1171.2--A 62%. -'23 2/~r~*it~lf'*3 d 04 0 8 0 8 --->4,Fl~.4) Steak Pit -4 . *- ' 0 .:i:(4 : 1 - c,1- 021· HOTE_ -4.-*r,,#t2KZZLL&•'~ t.'tri--u:.1&*0 4%1'.reu ,_ p.,rk · LENADO • Grape · It c?El Grain - Solle,aoo W. HOPKINS AVE. Tne "R" B:stro denalssance Restaurant -1 Milan 6 J DOO•11 MANG LOOW Res~aurant & i- -le irl#-Tr' .4,~h · 1 , 1(} 22%4 ~ t 6?(531 ~ (55) Lank€,ring. Chiroprai t. 2 - i Reservationb tiW -' 4 4 57 The - 44/ u % ~»*Cmen. 24/49 Lifl f' € 1** / I. ./ - -p'./i Jl- Alderter's U/Der Edge 8 *414 *A.im m) Ma,9 r...1,"1 A OLLY GIBSON I===I/ & Sports Inwr ASPEN BED & - ~AU'B~E~~-S~I CHRISTIANIA LODGE Clinic, Inc Antiques -Gallery Potters Booksellers Bakery & CaT LODGE INNSBRUCKINN BREAKFAST LODGE and Bistro ....'. 1 4002 .2 / /0.1 . 100 I 2 - W. MAIN ST. Carol Dopkin The Real Jack s Restaurant at the Gracy b Fle,she Estate Chma Fun TYROLEAN ULLR LODGE Carl s Pharmacy ,· Company SARDY HOUSE HOTEL THE HOTEL Ch#nes/ LODGE (&41 'PA ~021.littia <21£316;1 1 3 ASPEN _ Int. _ - Restaurant TA- -,- L 4-=r£.1 . GED' [Fil,Emiet , 12*9* f:26 67.19 #1 kikw.: 1/·-EL- ER ST - 4 BLEEKER ST. ~ C.,9,+11 ( Iminunin ( mirch # CO vur+.€>i f--- 4 lu 4 HALLAM ST. ACY»J 1 HALLAM ST. 0 It/JiI;EMA~1 , 4t»kdk¢~#1 1 FRANCIS ST. c&£-FANV Lik'W__-4 11( - F=xn,14,5 nkie*Ntfht SMUGGLER ST. ~p.4 t..{%30:~f¢tt''fiii k:39 0 e ty Nl,8~k -84#~ Orlt 94 6 0 ' A- 97\0 1 5!de--------- v-0- 92 NORTH ST. #Pillopol 'bur'j i ' L 17 0,3 Lij ' N. '~ 4~ 21,1 fA #.rnA:1A ;*- --- 4= 4 9 .0.Hwhatpah - 1 *A©% 8 0. 4.Pri, ( c.iii r /,r E. r 1 i „.irim„ir. ut studir 64·r ~•~ •11 Ah«om•u~*~_4\ ~~~ ~~ ~ 1 I, $ 1 11.,IL,m lakc· ~.ir,iri- Pre,cn·• 1 \Embjl 11-Ulam LIAr E " U .... -----r~--~~7*;¥h IM., 3=L =44* 1 5 , -42\r - 7 -1- GALLESPIE ST. -2:Ee_r- I, U - -_ 1 kl, .f-'+1 *h. 291-*198 1 1 1 '' . ti '' A L OS/bVU V's MONARCH ST. + 1 4- - rinsT ST. '-LS OUIH-L 19 Hldld A SEP-02-1997 09: 40 FROM ASP Ck 1 / PITKIN COM DEV TO 9-9258670 P.02 ATTACHMENT 1 LAND USE APPLICATION FORM 1. Project narnehh« Ret'670/~ 2. Project location 3// 0 . 6 1 UPI P f E - ST- 0 (indicate street address, lot and block number or metes and bounds description) 3. Present zoning 4. Lot size 267-0.J 5. Applicant's name, address and phone number 5>-N /* 301 0, C,tui,(rifft 97 . A,94-3 60. 6/64 970 915 -7 j 3% 6. Representative's name, address, and phone number 4 1 A- . 7. Type of application (check all that apply): 1 Conditional Use Conceptual SPA Conceptual HPC i - -- Special Review Final SPA Final HPC 8040 Greenline Conceptual PUD K Minor HPC Stream Margin Final PUD Relocation HPC Subdivision - TexUMap Amend. Hist,ric Landmark GMQS allotment GMQS exemption Demo/Partial Demo View Plane Condominiumization Design Review Lot Split/Lot Line Appeal Committee Adjustment 8. Description of existing uses (number and type of existing structures, approximate sq. ft., number of bedrooms, any previous approvals granted to the property) /3- 2 0 1%27.- ¢01,0 + 0131-t,i_.c-g--_,· -- c 3 A.e-„A-v-o-e-~..c-, 2 - lk) cJk-S 9. Description of development application _ 00 ¢ *co~, 0-3 10. Have you completed and attached the following? J Attachment 1 - Land use application form Attachment 2- Dimensional requirements form 7. -7~ Response to Attachment 3 Response to Attachment 4 IIIlII1I CERTIFICATE OF OWNERSHIP Pitkin County Title, Inc.,a duly licensed Title Insurance Agent in the State of Colorado hereby certifies that SAM HOUSTON is the Owner in Fee Simple of the following described property: UNIT B, MARTIN CONDOMINIUMS, according to the Condominium Map thereof recorded May 9, 1989 in Plat Book 22 at Page 51, and as defined and described in the Condominium Declaration recorded June 22, 1989 in Book 595 at Page 714 as Reception No. 312662 and First Amendment to the Condominium Declaration for Martin Condominiums, recorded September 18, 1995 in Book 793 at Page 901. COUNTY OF PITKIN, STATE OF COLORADO. ENCUMBRANCES: Deed of Trust from: Sam Houston to the Public Trustee of the County of Pitkin for the use of : Pitkin County Bank & Trust Company to secure : $536,250.00 dated : March 20, 1997 recorded : March 24, 1997 reception no. : 402739 Deed of Trust from: Sam Houston to the Public Trustee of the County of Pitkin for the use of : Pitkin Exchange, Inc. to secure : $240,000.00 dated : March 24, 1997 recorded : March 24, 1997 reception no. : 402740 The above Deed of Trust was assigned to Metro National Exchange Services, Inc. by instrument recorded June 13, 1997 as Reception No. 405371. Subject to easements and rights of way of record. This certificate is not to be construed to be a guarantee of title and is furnished for informational purposes only. PITKIN COUN- ---LE, INC. 1. , alithor'~ffd~ signature CERTIFIED TOPUUGUST 13, 1997 @ 8:30 A.M. 91 62 WARRANTY DEED THIS DEED, made this 24 day of MARCH 1997, between MARTIN INVESTMENT CO., a Colorado general partnership OF THE COUNTY OF , STATE OF AZ GRANTOR, SAM HOUSTON, GRANTEE 111111111111 lilli lili 11111111111111111111 lilli 1111 lili 402738 03/24/1907 11:28A WD I of 2 R 11.00 0 58.50 N 0.00 PITKIN COUNTY CLERK whose legal address is : 620 E. HYMAN, ASPEN, CO, 81611 CITY OF ASPEN, COUNTY OF PITKIN, STATE OF CO CD WITNESSITH, That for and in consideration of the sum of ten dollars ·25 and other good and valuable consideration. the receipt and sufficiency of ~0 which is hereby acknowledged, the grantor has granted, bargained. sold and ~~~~~~~-~ conveyed, and by these presents does grant, bargain, sell and convey and confirm unto the grantee, his heirs and assigns forever, all the real property together with improvements, if any, situate and lying and being in 'QA~ ~~~~~~~~ the Town of ASPEN, County of PITKIN, State of COLORADO, described as follows: ~~~~ UNIT B, MARTIN CONDOMINIUMS, according to the Condominium Map thereof 01 recorded May 9, 1999 in Plat Book 22 at Page 51, and as defined and described in the Condominium Declaration recorded June 22, 1989 in Book 595 at Page 714 as Reception No. 312662 and First Amendment to the Condominium Declaration for Martin Condominiums, recorded September 18, 1995 in Book 793 at Page 901. TOGETHER with all and singular the hereditaments and appurtenances thereto belonging, or in anywise appertaining, and the reversion and reversions, remainders, rents, issues and profits thereof, and all the estate, right, title, interest, claim and demand whatsoever of the grantor either in law or equity, of, in and to the above bargained premises, with the hereditaments and appurtenances. TO HAVE AND TO HOLD the said premises above bargained and described, with the appurtenances, unto the grantee, its heirs and assigns forever. And the Grantor, for itself, its successors and assigns, does covenant, grant, bargain, and agree to and with the Grantee, its heirs and ~1 00 assigns, that at the time of the ensealing delivery of the presents, it is ~ well seized of the premises above conveyed, has good, sure, perfect, H absolute and indefeasible estate of inheritance, in law, in fee simple, and has good right, full power and lawful authority to grant, bargain, Bell and convey the same in manner and form as aforesaid, and that the NO game are free and clear from all former and other grants, bargains, sales, liens, taxes, assessments, encumbrances and restrictions of whatever kind or nature soever, except those matters as set forth on Exhibit "Al' attached hereto and incorporated herein by reference. The grantor shall and will WARRANT AND FOREVER DEFEND the above bargained premises in the quiet and peaceable possession of the grantee, his heirs and assigns, against all and every person or persons lawfully claiming the whole or any part thereof. The singular number shall include the plural, the plural the singular, and the use of gender shall be applicable to all genders. /2 4 1627 MARTIN INVESTMENT CO. 1 4920*979922 - STATE OF COLORADO ) '~|- COUNTY OF PITKIN ) SS. The foregoing instrument was acknowledged before me this 24th day of March , 19 97 , by MARTIN INVESTMENT CO., a Colorado general partnership A0000:ZTEFFilixemti by: William K. Martin & Mary F. Martin its: leneral, partners 0.:4.. 1 DECLARATION RECEIVED 03/24/1997 ~CT l 1 540 c, '€8* 304„, 000 *Icl CI~E~ 1111111111111111111111111111111111111111111111111111111 404850 05/28/1997 03:23P WD 2 of 2 R 11.00 D 24.00 N 0.00 PITKIN COUNTY CLI EXHIBIT "A" 1. Taxes for the year 1997 not yet due or payable. 2. Right of the proprietor of a vein or lode to extract or remove his ore therefrom, should the same be found to penetrate or intersect the premises hereby granted as reserved in United States Patent recorded June 8, 1888 in Book 55 at Page 2. 3. Terms, conditions, provisions, obligations, easements, restrictions and assessments as set forth in the Condominium Declaration for Martin Condominiums recorded June 22, 1989 in Book 595 at Page 714, deleting therefrom any restrictions indicating preference, limitation or discrimination based on race, color, religion, sex, handicap, familial status or national origin. And Amended by First Amendment recorded September 18, 1995 in Book 793 at 901. 4. Easements, encroachments, rights of way and all matters as disclosed on Plat of subject property recorded May 9, 1989 in Plat Book 22 at Page 51. 5. Terms, conditions, provisions and obligations as set forth in Easement Agreement recorded January 10, 1990 in Book 611 at Page 674. 6. Terms, conditions, provisions and obligations as set forth in Encroachment Agreement recorded December 4, 1990 in Book 635 at Page 292. 11111111'Ell 111111 lili lilli 11111111111111111111 lili lili 402738 03/24/1997 11: 26A I® 2 of 2 R 11.00 D 58.50 N 0.00 PITKIN COUNTY CLERK b NO. 305 CERnFICATE OF COPY OF RECORD STATE OF COLORADO, 2 SS. County of...jfrl.Y~~05......................... 1 i X. Acte /41 - - ....................., County Clerk and Recorder in and for said County, in the State aforesaid, do hereby certify that the foregoing is a full, true and correct.............................-4*02.....................of «Od 73 £f; as the.zi~,ia.appears upon the records of my office. Given under my hand and official seal, this...........mf..f.OZL.......day of 1(: m:)1 4 3. 4-// ~ Recd,d#F-~ ME C. F. HOECKIL CO.. DENVER 1-7 After Recordation Return to: Pitkin County Bank & Trust Company 534 East Hyman Avenue Aspen, CO 81611 1 lillia lilli 111111 lili lilli 11111111111111111111 lili lili 402739 03/24/1997 01:17P DT 1 of 5 R 26.00 D 0.00 N 0.00 PITKIN COUNTY CLERK DEED OF TRUST BORROWER GRANTOR SAM HOUSTON SAM HOUSTON ADDRESS ADDRESS 620 E HYMAN AVE 620 E HYMAN AVE ASPEN, CO 81611 ASPEN, CO 81611 TELEPHONE NO. IDENTIFICATION NO. TELEPHONE NO. . IDENTIFICATION NO. ~ TRUSTEE: Public Trustee PITKIN County 530 E Main Street, Aspen, Co 81611 lf) In consideration of the loan or other credit accommodation hereinafter specified and any future advances or future Obligations, as defined herein, which may hereafter be advanced or incurred and the trust hereinafter mentioned and other good and valuable consideration, the receipt and ~ sufficiency of which are hereby acknowledged: Grantor hereby irrevocably bargains, sells, transfers, grants, conveys and assigns to Trustee, his successors and assigns, in trust, for Pitkin County Bank & Trust Company , 534 East Hyman Avenue, ~- *Aspen, CO 81611 ("Lender"), the (J beneficiary under this Deed of Trust, with power of sale and right of entry and possession all of Grantor's present and future estate, right, title and ~- interest in and to the real property described in Schedule A which is attached to this Deed of Trust and incorporated herein by this reference, together with all present and future improvements and fixtures; all tangible personal property including without limitation all machinery, equipment, building materials, and goods of every nature (excluding consumer goods) now or hereafter located on or used in connection with the real property, whether or not affixed to the land, all privileges, hereditaments, and appurtenances including all development rights associated with the real property, whether previously or subsequently transferred to the real property from other real property or now or hereafter susceptible of transfer from this real property to other real property; all leases, licenses and other agreements: all rents, issues and profits; all water, well, ditch, reservoir and mineral rights and stocks pertaining to the real property (cumulatively "Property"); to have and to hold the Property and the rights hereby granted for the use and benefit of Trustee, his successors and assigns, until payment in full of all Obligations secured hereby. Moreover, in further consideration, Grantor does, for Grantor and Grantor's heirs, representatives, successors, and assigns, hereby expressly warrant, covenant, and agree with Lender and Trustee and their successors and assigns as follows: 1. OBLIGATIONS. This Deed of Trust shall secure the payment and performance of all present and future indebtedness, liabilities, obligations and covenants of Borrower or Grantor (cumulatively "Obligations") to Lender pursuant to: (a) this Deed of Trust and the following promissory notes and other agreements: INTEREST PRINCIPALAMOUNT/ FUNDING/ MATURITY CUSTOMER LOAN RATE CREDIT LIMIT AGREEMENTDATE DATE NUMBER NUMBER FIXED $536,250.00 03/20/97 09/20/97 (b) all other present or future, written agreements with Lender that refer specifically to this Deed of Trust (whether executed for the same or different purposes than the foregoing); (c) any guaranty of obligations of other parties given to Lender now or hereafter executed that refers to this Deed of Trust; (d) future advances, whether obligatory or optional, to the same extent as if made contemporaneously with the execution of this Deed of Trust, made or extended to or on behalf of Grantor or Borrower. Grantor agrees that if one of the Obligations is a line of credit, the lien of this Deed of Trust shall continue until payment in full of all debt due under the line notwithstanding the fact that from time to time (but before termination of the line) no balance may be outstanding. At no time shall the lien of this Deed of Trust, not including sums advanced to protect the security of this Deed of Trust, exceed f 536,250.00 ; and (e) all amendments, extensions, renewals, modifications, replacements or substitutions to any of the foregoing. As used In this Paragraph 1, the terms Grantor and Borrower shall include and also mean any Grantor or Borrower if more than one. 2. REPRESENTATIONS, WARRANTIES AND COVENANTS. Grantor represents, warrants and covenants to Lender that: (a) Grantor has fee simple marketable title to the Property and shall maintain the Property free of all lions, security interests, encumbrances and claims except for this Deed of Trust and those described in Schedule B, which is attached to this Deed of Trust and incorporated herein by reference, which Grantor agrees to pay and perform in a timely manner; (b) Grantor is in compliance in all respects with all applicable federal, state and local laws and regulations, including, without limitation, those relating to "Hazardous Materials," as defined herein, and other environmental matters (the "Environmental Laws"), and neither the federal government nor any other governmental or quasi governmental entity has filed a lien on the Property, nor are there any governmental, judicial or administrative actions with respect to environmental matters pending, or to the best of the Grantor's knowledge, threatened, which involve the Property. Neither Grantor nor, to the best of Grantor's knowledge, any other party has used, generated, released, discharged, stored, or disposed of any Hazardous Materials as defined herein, in connection with the Property or transported any Hazardous Materials to or from the Property. Grantor shall not commit or permit such actions to be taken in the future. The term "Hazardous Materials" shall mean any substance, material, or waste which is or becomes regulated by any governmental authority including, but not limited to, (i) petroleum, (ii) friable or nonfriable asbestos; (iii) polychlorinated biphenyls; (iv) those substances, materials or wastes designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act or listed pursuant to Section 307 of the Clean Water Act or any amendments or replacements to these statutes, (v) those substances, materials or wastes defined as a "hazardous waste" pursuant to Section 1004 of the Resource Conservation and Recovery Act or any Ar¥,An,(rnante n, r/wlobar.,ar.*e +M *hat ete*„*a. en,4 t.,A *6*......6.6..... 1111111111111'1111 lili lilli '111111111111111111111111111 402739 03/24/1997 01:17P DT 2 of 5 R 26.00 0 0.00 N 0.00 PITKIN COUNTY CLERK (d) Grantor has the right and is duly authorized to execu. ww not and shall not conflict with the provisions of any statute, regulation, ordinance, rule of law, contract or other agreement which may be binding on Grantor at any time; (e) No action or proceeding is or shall be pending or threatened which might materially affect the Property; and (f) Grantor has not violated and shall not violate any statute, regulation, ordinance, rule of law, contract or other agreement (including, but not limited to, those governing Hazardous Materials) which might materially affect the Property or Lender's rights or interest in the Property pursuant to this Deed of Trust. 3. PRIOR DEEDS OF TRUST. Grantor represents and warrants that there are no prior deeds of trust affecting any part of the Property except as set forth on Schedule B attached to this Deed of Trust, which Grantor agrees to pay and perform in a timely manner. If there are any prior deeds of trust then Grantor agrees to pay all amounts owed, and perform all obligations required, under such deeds of trust and the indebtedness secured thereby and further agrees that a default under any prior deed of trust shall be a default under this Deed of Trust and shall entitle Lender to al[ rights and remedies contained herein or in the Obligations to which Lender would be entitled In the event of any other default. 4. TRANSFERS OF THE PROPERTY OR BENEFICIAL INTERESTS IN GRANTORS OR BORROWERS. In the event of a sale, conveyance, lease, contract for deed or transfer to any person of all or any part of the real property described in Schedule A, or any interest therein, or of all or any beneficial interest in Borrower or Grantor (if Borrower or Grantor is not a natural person or persons but Js a corporation, limited liability company, partnership, trust, or either legal entity), Lender may, at its option declare the outstanding principal balance of the Obligations plus accrued interest thereon immediately due and payable. At Lender's request, Grantor or Borrower, as the case may be, shall furnish a complete statement setting forth all of its stockholders, members, or partners, as appropriate, and the extent of their respective ownership Interests. 5. ASSIGNMENT OF RENTS. In consideration of the Obligations, which are secured by this Deed of Trust, Grantor absolutely assigns to Lender all Grantor's estate, right, title, interest, claim and demand now owned or hereafter acquired in all existing and future leases of the Property (including extensions, renewals and subleases), all agreements for use and occupancy 01 the Property Call such leases and agreements whether written or oral, are hereafter referred to as the "Leases"), and all guaranties of lessees' performance under the Leases, together with the immediate and continuing right to collect and receive all of the rents, Income, receipts, revenues, issues, profits and other Income of any nature now or hereafter due (including any income of any nature coming due during any redemption period) under the Leases or from or arising out of the Property including minimum rents, additional rents, percentage rents, parking or common area maintenance contributions, tax and insurance contributions, deficiency rents, liquidated damages following default in any Lease, all proceeds payable under any policy of insurance covering loss of rents resulting from untenantability caused by destruction or damage to the Property, all proceeds payable as a result of a lessee's exercise of an option to purchase the Property, all proceeds derived from the termination or rejection of any Lease in a bankruptcy or other insolvency proceeding, and all proceeds from any rights and claims of any kind which Grantor may have against any lessee undw the Leases or any occupants 01 the Properly (all of the above are hereafter collectively referred to as the "Rents"). This assignment is subject to the right, power and authority given to the Lender to collect and apply the Rents. This assignment is fecorded in accordance with applicable state law; the lien created by this assignment is intended to be specific, perfected, and choate upon the recording of this Deed of Trust, all as provided by applicable state law as amended from time to time. As long as there is no default under the Obligations or this Deed of Trust, Lender grants Grantor a revocable license to collect all Rents from the Leases when due and to use such proceeds in Grantor's buwtess operations. However, Lender may at any time require Grantor to deposit all Rents into an account maintained by Grantor or Lender at Lender's institution. Upon default in the payment of, or in the performance of, any of the Obligations, Lender may at its option take possession of the Property and have, hold, manage, lease and operate the Property on terms and for a period of time that Lender deems proper. Lender may proceed to collect and receive all Rents from the property, and Lender shall have full power to make alterations, renovations, repairs or replacements to the Property as Lender may deem proper, Lender may apply all Rents in Lender's sole discretion to payment of the Obligations or to the payment of the cost of such alterations, renovations, repairs and replacements and any expenses incident to taking and retaining possession of the Property periodically and the management and operation of the Property. Lender may keep the Property properly insured and may discharge any taxes, charges, claims, assessments and other liens which may accrue. The expense and cost of these actions may be paid from the Rents received, and any unpaid amounts shall be added to the principal of the Obligations. These amounts, together with other Costs, shall become part of the Obligations secured by this Deed of Trust, 6. LEASES AND OTHER AGREEMENTS. Grantor shall not take or fail to take any action which may cause or permit the termination or the withholding of any payment in connection with any Lease or other agreement ("Agreement') pertaining to the Property. In addition, Grantor, without Lender's prior written consent, shall not: (a) collect any monies payable under any Agreement more than one month in advance; (b) modify any Agreement; (c) assign or allow a lien, security Interest or other encumbrance to be placed upon Grantor's rights, title and interest in and to any Agreement or the amounts payable thereunder; or (d> terminate or cancel any Agreement except for the nonpayment of any sum or other material breach by the other party thereto, If Grantor receives at any time any written communication asserting a default by Grantor under an Agreement or purporting to terminate or cancel any Agreement, Grantor shall promptly forward a copy of such communication (and any subsequent communications relating thereto) to Lender, All such Agreements and the amounts due to Grantor thereunder are hereby assigned to Lender as additional security for the Obligations. 7. COLLECTION OF INDEBTEDNESS FROM THIRD PARTY. Lender shall be entitled to notify or require Grantor to notify any third party (including, but not limited toi lessees, licensees, governmental authorities and insurance companies) to pay Lender any indebtedness or obligation owing to Grantor with respect to tho Property (cumulatively 'Indebtedness") whether or not a default exists under this Deed of Trust. Grantor shall diligently collect the Indebtedness owing to Grantor from these third parties until the giving of such notification, In the event that Grantor possesses or receives possession of any instruments or other remittances with respect to the Indebtedness following the giving of such notification or if the instruments or other remittances constitute the prepayment of any Indebtedness or the payment of any insurance or condemnation proceeds, Grantor shall hold such instruments and other remittances in trust lor Lender apart from its other property, endorse the instruments and other remittances to Lender, and immediately provide Lender with possession of the instruments and other remittances. Lender shall be entitled, but not required, to collect (by legal proceedings or otherwise), extend the time for payment, compromise, exchange or release any obligor or collateral, or otherwise settle any of the Indebtedness whether or not an event of default exists under this Agreement. Lender shall not be liable to Grantor lor any action, error, mistake, omission or delay pertaining to the actions described in this paragraph or any damages resulting therefrom. Notwithstanding the foregoing, nothing herein shall cause Lender to be deemed a mortgagee-in-possession. 8. USE AND MAINTENANCE OF PROPERTY. Grantor shall take all actions and make any repairs needed to maintain the Properly in good condition. Grantor shall not commit or permit any waste to be committed with respect to the Property. Grantor shall use the Property solely in compliance with applicable law and insurance policies. Grantor shall not make any alterations, additions or improvements to the Property without Lender's prior written consent. Without limiting the foregoing, all alterations, additions and Improvements made to the Property shall be subject to the beneficial interest belonging to Lender, shall not be removed without Lender's prior written consent, and shall be macie at Grantor's sole expense. 9. LOSS OR DAMAGE. Grantor shall bear the entire risk of any loss, theft, destruction or damage (cumulatively "Loss or Damage") to the Property or any portion thereof from any cause whatsoever, In the event of any Loss or Damage, Grantor shall, at the option of Lender, repair the affected Property to its previous condition or pay or cause to be paid to Lender the decrease in the fair market value of the affected Property. 10. INSURANCE. The Property will be kept insured for its full insurable value (replacement cost) against all hazards Including loss or damage caused by flood, earthquake, tornado and fire, theft or other casualty to the extent required by Lender. Grantor may obtain insurance on the Property from such companies as~e acceptable to Lender in its sole discretion. The Insurance policies shall require the insurance company to provide Lender with at least - days'written notice before such policies are altered or cancelled in any manner. The insurance policies shall name Lender as a loss payee and provide that no act or omission of Grantor or any other person shall affect the right of Lender to be paid the insurance proceeds pertaining to the loss or damage of the Property. In the event Grantor fails to acquire or maintain insurance, Lender (after providing notice as may be required by law) may in its discretion procure appropriate insurance coverage upon the Properly and the insurance cost shall be an advance payable and bearing interest as described in Paragraph 21 and secured hereby, Grantor shall furnish Lender with evidence of insurance indicating the required coverage. Lender may act as attorney-in-fact for Grantor in making and settling claims under insurance policies, cancelling any policy or endorsing Grantor's name on any draft or negotiable instrument drawn by any insurer. All such insurance policies shall be immediately assigned, pledged and delivered to Lender as further security for the Obligations. In the event of loss, Grantor shall immediately give Lender written notice and Lender is authorized to make proof of loss. Each insurance company is directed to make payments directly to Lender instead of to Lender and Grantor. Lender shall have the right, at its sole option, to apply such monies toward the Obligations or toward the cost of rebuilding and restoring the Property. Any amounts may at Lender's option be applied in the inverse order of the due dates thereof, 11. ZONING AND PRIVATE COVENANTS. Grantor shall not initiate or consent to any change in the zoning provisions or private covenants affecting the use of the Property without Lender's prior written consent, If Grantor's use of the Property is or becomes a nonconforming use under any zoning provision, Grantor shall not cause or permit such use to be discontinued or abandoned without the prior written consent of Lender. Grantor will immediately provide Lender with written notice of any proposed changes to the zoning provisions or private covenants affecting the Property. 12. CONDEMNATION. Grantor shall immediately provide Lender with written notice of any actual or threatened condemnation or eminent domain proceeding pertaining to the Properly. All monies payable to Grantor from such condemnation or taking are hereby assigned to Lender and shall be applied first to the payment of Lender'a attorneys' fees, legal expenses and other costs (including appraisal fees) in connection with the condemnation or eminent domain proceedings and then, at the option of Lender, to the payment of the Obligations or the restoration or repair of the Property. 13. LENDER'S RIGHT TO COMMENCE OR DEFEND LEGAL ACTIONS. Grantor shall immediately provide Lender with written notice of any actual or threatened action, suit, or other proceeding affecting the Property. Grantor herebv aoooints I end•r AR it€ Atinrn•.,-in-f•,+ i. ..0-•...... . ....A-*-- 15. TAXES AND ASSESSMENTS. Grantor shall pay all taxes and assessments relating to the Property when due and immediately provide Lender evidence of payment of same. Upon the request of Lender, Grantor shall deposit with Lender each month one-twelfth (1/12) of the estimated annual insurance premium, taxes and assessments pertaining to the Property. So long as there is no default, these amounts shall be applied to the payment of taxes, assessments and insurance as required on the Property. In the event of default, Lender shall have the right, at its sole option, to apply the funds so held to pay any taxes or against the Obligations. Any funds applied may, at Lender's option, be applied in reverse order of the due date thereof. 16. INSPECTION OF PROPERTY, BOOKS1 RECORDS AND REPORTS. Grantor shall allow Lender or its agents to examine and inspect the Property and examine, inspect and make copies of Grantor's books and records pertaining to the Property from time to time. Grantor shall provide any assistance required by Lends, for these purposes. All of the signatures and information contained In Grantor's books and records shall be genuine, true, accurate and complete in all respects. Grantor shall note the existence of Lender's beneficial interest in its books and records pertaining to the Property. Additionally, Grantor shall report, in a form satisfactory to Lender, such information as Lender may request regarding Grantor's financial condition or the Property. The information shall be for such periods, shall reflect Grantors records at such time, and shall be rendered with such frequency as Lender may designate. All information furnished by Grantor to Lender shall be true, accurate and complete in all fespects, and signed by Grantor if Lender requests. 17. ESTOPPEL CERTIFICATES. Within ten (10) days after any request by Lender, Grantor shall deliver to Lender, or any intended transferee of Lender's rights with respect to the Obligations, a signed and acknowledged statement specifying (a) the outstanding balance on the Obligations; and (b) whether Grantor possesses any claims, defenses, set-offs or counterclaims with respect to the Obligations and, if so, the nature of such claims, defenses, set-offs or counterclaims. Grantor will be conclusively bound by any representation that Lender may make to the intended transferee with respect to these matters in the event that Grantor fails to provide the requested statement In a timely manner. 18. EVENTS OF DEFAULT. An Event of Default shall occur under this Deed of Trust and the Trustee's power shall become operative in the event that Grantor, Borrower or any guarantor of the Obligationg: (a) fails to pay any Obligation to Lender when due; (b) fails to perform any Obligation or breaches any warranty or covenant to Lender contained in this Deed of Trust or any other present or future agreement; (c) destroys, loses or damages the Property in any material respect or subjects the Property to seizure, confiscation, or- condemnation; (d) seeks to revoke, terminate or otherwise limit its liability under any guaranty to Lender; (e) dies. becomes legally incompetent, is dissolved or terminated, becomes insolvent, makes an assignment for the benefit of creditors, fails to pay debts as they become due, files a petition under the federal bankruptcy laws, has an involuntary petition in bankruptcy filed in which Grantor, Borrower or any guarantor is named, or has properly taken under any writ or process of court; (f) allows goods to be used, transported or stored on the Property, the possession, transportation, or use of which, is illegal; (g) allows any party other than Grantor or Borrower to assume or undertake any Obligation without the written consent of Lender; or (h) causes Lender to deem itself insecure due to a significant decline in the value of the Property; or if Lender, in good faith, for any reason, believes that the prospect of payment or performance is impaired. 19. RIGHTS OF LENDER ON EVENT OF DEFAULT. Upon the occurrence of an Event of Default under this Deed of Trust, Lender shall be entitled to exercise one or more of the following remedies without notice or demand (except as required by law): (a) to declare the Obligations immediately due and payable in full, such acceleration shall be automatic and immediate if the Event of Default is a filing under the Bankruptcy Code; (b) to collect the outstanding Obligations with or without resorting to judicial process; (c) to require Grantor to deliver and make available to Lender any personal property or Chattels constituting the Property at a place reasonably convenient to Grantor and Lender: (d) to enter upon and take possession of the Property without applying for or obtaining the appointment of a receiver and, at Lender's option, to appoint a receiver without bond, without first bringing suit on the Obligations and without otherwise meeting any statutory conditions regarding receivers, it being Intended that Lender shall have this contractual right to appoint a receiver·, (e) to employ a managing agent of the Property and let the same, either In Trustee's own name, in the name of Lender or in the name of Grantor, and receive the rents, incomes, issues and profits of the Property and apply the same, after payment of all necessary charges and expenses, on account of the Obligations; (f) to pay any sums in any form or manner deemed expedient by Lender to protect the security of this Deed of Trust or to cure any default other than payment of interest of principal on the Obligations; (g) to foreclose this Deed of Trust judicially or nonjudicially in accordance with applicable state law: (h) to set-off Grantor's Obligations against any amounts owed Grantor by Lender including, but not limited to, monies, instruments. and deposit accounts maintained with Lender or any currently existing or future affiliate of Lender; and (i) to exercise all other rights available to Lender under any other written agreement or applicable law. Lender'e rights are cumulative and may be exercised together, separately, and in any order, In the event that Lender institutes an action seeking the recovery of any of the Property by way of a prejudgment remedy In an action against Grantor, Grantor waives the posting of any bond which might otherwise be required. Lender or Lender's designee may purchase the Property at any sale. In the event Lender purchases the Properly at the Trustee's sale, to the extent Lender's bid price exceeds the Obligations, Lender shall pay Trustee cash equal to such excess. The Property or any part thereof may be sold in one parcel, or in such parcels, manner or order as Lender in its sole discretion may elect, and one or more exercises of the power herein granted shall not extinguish or exhaust the power unless the entire Property is sold or the Obligations are paid in full. 20. SECURITY INTEREST UNDER THE UNIFORM COMMERCIAL CODE. This Deed of Trust shall be considered a financing statement and a fixture filing pursuant to the provisions of the Uniform Commercial Code (as adopted in the state where the real property is located) covering fixtures, chattels, and articles of personal property now owned or hereafter attached to or to be used in connection with the Property together with any and all replacements thereof and additions thereto (the 'Chattels'), and Grantor hereby grants Lender a security interest in such Chattels. The debtor is the Grantor described above. The secured party is the Lender described above. Upon demand, Grantor shall make, execute and deliver such security agreements (as such term is defined in said Uniform Commercial Code) as Lender at any time may deem necessary or proper or required to grant to Lender a perfected security interest In the Chattels, and upon Grantor's failure to do so, Lender is authorized to sign any such agreement as the agent of Grantor. Grantor hereby authorizes Lender to file financing statements (as such term is defined in said Uniform Commercial Code) with respect to the Chattels, at any time, without the signature of Grantor. Grantor will, however, at any time upon request of Lender, sign such financing statements. Grantor will pay all filing fees for the filing of such financing statements and for the refiling thereof at the times required, in the opinion of Lender, by said Uniform Commercial Code. If the lien of this Deed of Trust be subject to any security agreement covering the Chattels, then in the event of any default under this Deed of Trust, all the right, title and interest of Grantor in and to any and all of the Chattels is hereby assigned to Lender, together with the benefit of any deposits or payments now or hereafter made thereof by Grantor or the predecessors or successors in title of Granto, in the Property. 21. REIMBURSEMENT OF AMOUNTS EXPENDED BY LENDER. Lender, at Lender's option, may expend funds Oncluding attorneys' fees and legal expenses) to perform any act required to be taken by Grantor or to exercise any right or remedy of Lender under this Deed of Trust. Upon demand, Grantor shall immediately reimburge Lender for all suGh amounts expended by Lender together with interest thereon at the lower of the highest rate described in any Obligation or the highest rate allowed by law from the date of payment until the date of reimbursement. These gums shall be included in the definition of Obligations herein and shall be secured by the beneficial interest granted herein. If the Obligations are paid after the beginning of publication of notice of sale, as herein provided, or In the event Lender shall, at its sole option, permit Grantor to pay any part of the Obligations after the beginning of publication of notice of sale, as herein provided, then, Grantor shall pay on demand all expenses incurred by the Trustee and Lender in connection with said publication, including reasonable attorneys' fees to the attorneys for the Trustee and for the Lender, and a reasonable fee to the Trustee, and this Deed of Trust shall be security for all such expenses and fees. 22. APPLICATION OF PAYMENTS. All payments made by or on behalf of Grantor may be applied against the amounts paid by Lender including attorneys' fees and legal expenses) in connection with the exercise of its rights or remedies described in this Deed of Trust and then to the payment of the remaining Obligations in whatever order Lender chooses. 23. POWER OF ATTORNEY. Grantor hereby appoints Lender as its attorney-in-fact to endorse Grantor's name on all instruments and other documents pertaining to the Obligations or Deed of Trust. In addition, Lender shall be entitled, but not required, to perform any action or execute any document required to be taken or executed by Grantor under this Deed of Trust. Lender's performance of such action or execution of such documents shall not relieve Grantor from any Obligation or cure any default under this Deec! of Trust. All powers of attorney described in this Deed of Trust are coupled with an interest and are irrevocable. 24. SUBROGATION OF LENDER. Lender shall be subrogated to the rights of the holder of any previous lien, security interest or encumbrance discharged with funds advanced by Lender regardless of whether these lions, security interests or other encumbrances have been released of record. 25. COLLECTION COSTS. To the extent permitted by law, Grantpr agrees to pay Lender's reasonable fees and costs, including, but not limited to, fees and costs of attorneys and other agents (including without limitation paralegals, clerks and consultants), whether or not such attorney or agent is an employee of Lender, which are incurred by Lender in collecting any amount due or enforcing any right or remedy under this Deed of Trust, whether or not suit is brought, including, but not limited to, all fees and costs incurred on appeal, in bankruptcy, and for post-judgment collection actions. 26. PARTIAL RELEASE. Lender may release its interest in a portion of the Property by executing and recording one or more partial releases without affecting }ts interest in the remaining portion of the Property. Nothing herein shall be deemed to nhlin•te I Anclor tr· relooe. an„ r.4 i•, i...ra..1...6. 28. SUCCESSORS AND ASSIGNS. This Deed of Trust shall be binding upon and inure to the benefit of Grantor and Lender and their respective successors, assigns, trustees, receivers, administrators, personal representatives, legatees and devisees. 29. NOTICES. Except as otherwise required by law, any notice or other communication to be provided under this Deed of Trust shall be in writing and sent to the parties at the addresses described in this Deed of Trust or such other address as the parties may designate in writing from time to time. Any such notice so given and sent by first class mail, postage prepald, shall be deemed given the earlier of three (3) days after such notice is sent or when received by the person to whom such notice is being given. 30. SEVERABILITY. Whenever possible, each provision of this Deed of Trust shall be interpreted so as to be effective and valid under applicable state law. If any provision of this Deed of Trust violates the law or is unenforceable, the rest of this Deed of Trust shall continue to be valid and enforceable. 31. APPLICABLE LAW This Deed of Trust shall be governed by the laws of the state where the real property is located. Unless applicable law provides otherwise, Grantor consents to the jurisdiction and venue of any court selected by Lender, in its sole discretion, located In that state. 32. MISCELLANEOUS. Grantor and Lender agree that time is of the essence. Grantor walves presentment, demand for payment, notice of dishonor and protest except as required by law. All references to Grantor in this Deed of Trust shall include all persons signing below. If there is more than one Grantor, their Obligations shall be joint and several. This Deect of Trust represents the complete integrated understanding between Grantor and Lender pertaining to the terms and conditions hereof, 33. NO THIRD PARTY RIGHTS. No person is or shall be a third party beneficiary of any provision of this Deed of Trust, All provisions of this Deed of Trust in favor of Lender are intended solely for the benefit of Lender, and no third party shall be entitled to assume or expect that Lender will waive or consent to the modification of any provision of this Deed of Trust, in Lender's sole discretion. 34. PRESERVATION OF LIABILITY AND PRIORITY. Without affecting the liability of Borrower, Grantor, or any guarantor of the Obligations, or any other person (except a person expressly released in writing) for the payment and performance of the Obligations, and without affecting the rights of Lender with respect to any Property not expressly released in writing, and without impairing in any way the priority of this Deed of I rust over the interest of any person acquired or first evidenced by recording subsequent to the recording of this Deed of Trust, Lender may, either before or after the maturity of the Obligations, and without notice or consent: release any person liable for payment or performance of all or any part of the Obligations; make any agreement altering the terms of payment or performance of all or any part of the Obligations; exercise or refrain ffom exercising or waive any right or remedy that Lender may have under this Deed of Trust; accept additional security of any kind for any of the Oblipations; or release or otherwise deal with any real or personal property securing the Obligations, Any person acquiring or recording evidence of any interest of any nature In the Property shall be deemed, by acquiring such interest or recording any evidence thereof, to have consented to all Or any such actions by Lender. 35. DEFEASANCE. Upon the payment and performance in full of all of the Obligations, Lender will execute and deliver to Grantor those documents that may be required to release this Deed of Trust of record. Grantor shall be responsible to pay any costs of recordation, 36. CONSTRUCTION LOAN. u This Deed of Trust is a construction mortgage under the Uniform Commercial Code, to secure an obligation incurred for the construction of an improvement on land, including the acquisition costs of land. This Deed of Trust secures a construction loan, and it will be subject to the terms of a construction loan agreement between Grantor and Lender. Any materials, equipment or supplies used or intended for use in the construction, development, or operation of the Property, whether stored on or off the Property, shall also be subject to the lien of this Deed of Trust. 37. WAIVER OF HOMESTEAD. Grantor hereby waives all homestead exemptions in the Property to which Grantor would otherwise be entitled under any applicable law. 38. JURY TRIAL WAIVER. LENDER AND GRANTOR HEREBY WAIVE ANY RIGHT TO TRIAL BY JURY IN ANY CIVIL ACTION ARISING OUT OF, OR BASED UPON, THIS DEED OF TRUST. 39. ADDITIONAL TERMS: 111111111111 mil lili 111111111111111111111111111111111 402739 03/24/1997 01:17P DT 4 of 5 R 26.00 0 0.00 N 0.00 PITKIN COUNTY CLERK Grantor acknowledges that Grantor has read, understands, and agrees to the terms and conditions of this Deed of Trust, and acknowledges receipt of an exact copy of same. Dated this 20th day of March, 1997 GRANTOR: SAM HOUSTON,00~ 0~ GRANTOR: 3 1- 1 1 SAM HOUSTON \-/ ./ GRANTOR: GRANTOR: GRANTOR: GRANTOR: ACKNOWLEDGMENTS State of Colorado ) SS. County of Pitkin ) The foregoing instrument was acknowledged before me this 20th day of March. 1997 by Sam Houston My commission expires: Witness my hand and official seal. ..0•EN'"Rp'*,* 4 - €23/(9 (5.-lk</Fts/<irkr..5444,/ -%0 9 l~/N.tary Public ; ~,AOTARP. 0% ~1~PUBLIC '44,OP Coke> 4,#"1111"NU" 14 Commisilon Expires 11/29/99 State of Colorado ) SS. County of ) The foregoing instrument was acknowledged before me this day of by as of/for My commission expires: Witness my hand and official seal. Notary Public SCHEDUUE A The following described real property located in the County of PITKIN , State of Colorado : UNIT B, MARTIN CONDOMINIUMS, according to the Condominium Map thereof recorded May 9, 1989 in Plat Book 22 at Page 51, and as defined and described in the Condominium Declaration recorded June 22, 1989 in Book 595 at Page 714 as Reception No. 312662 and First Amendment to the Condominium Declaration for Martin Condominiums, recorded September 18, 1995 in Book 793 at Page 901. 1111111111111111111111111111111111111111111111111111111 402739 03/24/1997 01:17P DT 5 of 5 R 26.00 D 0.00 N 0.00 PITKIN COUNTY CLERK SCHEDULE B "INTENTIONALLY OMITTED" 34 The printed portions of this form hme been approved by the Colorado Real Estate Commission. (TD 72-7-96) IF THIS FORM IS USED IN A CONSUMER CREDIT TRANSACTION, CONSULT LEGAL COUNSEL. THIS IS A LEGAL INSTRUMENT. IF NOT UNDERSTOOD, LEGAL, TAX OR OTHER COUNSEL SHOULD BE CONSULTED BEFORE SIGNING. DEED OF TRUST (Due on Transfer - Strict) THIS DEED OF TRUST is made this 24th day of March, 1997 , between Sam Houston (Borrower), whose addrp,k 620 E. Hyman Avenue, Aspen, CO 81611 and the Public Trustee of the County in which the Property (see paragraph 1) is situated (Trustee); for the benefit of Pitkin Exchange, Inc., a Colorado corporation (Lender), whose address is 601 E. Hopkins Avenue, Aspen, CO 81611 Borrower and Lender covenant and agree as follows: 1. Property in Trust. Borrower, in consideration of the indebtedness herein recited and the trust herein created, hereby grants and conveys to Trustee in trust, with power of sale, the following described property located in the County of Pitkin Rtate of Colorado: UNIT B, MARTIN CONDOMINIUMS, according to the Condominium Map thereof recorded May 9, 1989 in Plat Book 22 at Page 51, and as defined and described in the Condominium Dec- laration recorded June 22, 1989 in Book 595 at Page 714 as Reception No. 312662 and First Amendment to the Condo- minium Declaration for Martin Condominiums, recorded September 18, 1995 in Book 793 at Page 901. which has the addrtss of 311 West Gillespie , (Street) Aspen , Cninratin 81611 (Property Address), together (City) (Zip Code) with all its appurtenances (Property). 2. Note; Other Obligations Secured. This Deed of Trust is given to secure to Lender: A. the repayment of the indebtedness evidenced by Borrower's note (Note) dated March 24. 1997 in the principal silm nf Two Hundred Forty Thousand ($240.000.00) US. Dollars, with interest on the unpaid principal balanrpfrom March 24, 1997 until paid, at the rate of 8 percent per annum, with principal and interest payable at 601 East Ho pkin s Avenue, Aspen, CO 81611 orsuch other place asthe Lender maydesignate, in 5 payments of interest only, each in the amount of Sixteen Hundred Dollars (U,S.$ 1.600.00 ) due on the 24th day of each calendar month beginning April 24, 1997 ; such payments to continue until the entire indebtedness evidenced by said Note is fully paid; however, if not sooner paid, the entire principal amount outstanding and accrued interest thereon, shall be due and payable on September 15. 1997 1111111111111111111111111111111111111111111111111111111 402740 03/24/1997 01:18P DT 1 of 4 R 21.00 D 0.00 N 0.00 PITKIN COUNTY CLERK and Borrower is to pay to Lender a late charge of 5 % of any payment not received by the Lender within 10 days after payment is due; and Borrower has the right to prepay the principal amount outstanding under said Note, in whole or in part, at any time without penalty except B. the payment of all other sums, with interest thereon at 1 7 % per annum, disbursed by Lender in accordance with this Deed of Trust to protect the security of this Deed ofTrust; and C. the performance of the covenants and agreements of Borrower herein contained. 3. Title. Borrower covenants that Borrower owns and has the right to grant and convey the Property, and warrants title to the same, subject to general real estate taxes for the current year, easements of record or in existence, and recorded declarations, restric- tions, reservations andcovenants, ifany, asofthisdateandexceptand subj ect to a recorded First Lien Deed of Trust for the benefit of Pitkin County Bank & Trust Co., which Deed of Trust secures the repayment of a Promissory Note in the principal sum of $ 536,250.00. 4. Payment of Principal and Interest. Borrower shall promptly pay when due the principal of and interest on the indebtedness ~C-3- 1 l 5 4 0 6. Prior Mortgages and Deeds of Trust; Charges; Liens. Borrower shall perform all of Borrower's obligations under any prior deed of trust and any other prior liens. Borrower shall pay all taxes, assessments and other charges, fnes and impositions attributable to the Property which may have or attain a priority over this Deed of Trust, and leasehold payments or ground rents, if any, in the manner set out in paragraph 23 (Escrow Funds for Taxes and Insurance) or, if not required to be paid in such manner, by Borrower making payment when due, directly to the payee thereof. Despite the foregoing, Borrower shall not be required to make payments otherwise required by this paragraph if Borrower, after notice to Lender, shall in good faith contest such obligation by, or defend enforcement of such obligation in, legal proceedings which operate to prevent the enforcement of the obligation or forfeiture of the Property or any part thereof, only upon Borrower making all such contested payments and other payments as ordered by the court to the registry of the court in which such proceedings are filed. ** 7. Property Insurance. Borrower shall keep the improvements now existing or hereafter erected on the Property insured against loss by fire or hazards included within the term "extended coverage" in an amount at least equal to the lesser of (i) the insurable value of the Property or (2) an amount sufficient to pay the sums secured by this Deed of Trust as well as any prior encumbrances on the Property. All of the foregoing shall be known as "Property Insurance': The insurance carrier providing the insurance shall be qualified to write Property Insurance in Colorado and shall be chosen by Borrower subject to knder's right to reject the chosen carrier for reasonable cause. All insurance policies and renewals thereof shall include a standard mortgage clause in favor of Lender, and shall provide that the insurance carrier shall notify Lender at least ten (10) 2 days before cancellation, termination or any material change of coverage, Insurance policies shall be furnished to Lender at or before closing, Lender shall have the right to hold the policies and renewals thereof. In the event of loss, Borrower shall give prompt notice to the insurance carrier and l,ender. Lender may make proof of loss if not made promptly by Borrower. Insurance proceeds shall be applied to restoration or repair of the Property damaged, provided such restoration or repair is econom- ically feasible and the security of this Deed of Trust is not thereby impaired. If such restoration or repair is not economically feasible or if the security of this Deed of Trust would be impaired, the insurance proceeds shall be applied to the sums secured by this Deed of Trust, with the excess, if any, paid to Borrower. If the Property is abandoned by Borrower, or if Borrower fails to respond to Lender within 30 days from the date notice is given in accordance with paragraph 16 (Notice) by Lender to Borrower that the insurance carrier offers to settle a claim for insurance benefits, Lender is authorized to collect and apply the insurance proceeds, at Lender's option, either to restoration or repair of the Property or to the sums secured by this Deed of Trust. Any such application ofproceeds to principal shall not extend or postpone the due date ofthe installments referred to in paragraphs 4 (Payment of Principal and Interest) and 23 (Escrow Funds for Taxes and Insurance) or change the amount of such installments. Notwithstanding anything herein to the contrary, if under paragraph 18 (Acceleration; Foreclosure; Other Remedies) the Property is acquired by Lender, all right, title and interest of Borrower in and to any insurance policies and in and to the proceeds thereof resulting from damage to the Property prior to the sale or acquisition shall pass to Lender to the extent of the sums secured by this Deed of Trust immediately prior to such sale or acquisition. All of the rights of Borrower and Lender hereunder with respect to insurance carriers, insurance policies and insurance proceeds are subject to the rights of any holder of a prior deed of trust with respect to said insurance carriers, policies and proceeds. 8. Preservation and Maintenance of Property. Borrower shall keep the Property in good repair and shall not commit waste or permit impairment or deterioration of the Property and shall comply with the provisions of any lease if this Deed of Trust is on a leasehold. Borrower shall perform all of Borrower's obligations under any declarations, covenants, by-laws, rules, or other documents governing the use, ownership or occupancy ofthe Property. 9. Protection of Lender's Security. Except when Borrower has exercised Borrower's rights under paragraph 6 above, if the Bor- rower fails to perform the covenants and agreements contained in this Deed of Trust, or if a default occurs in a prior lien, or if any action or proceeding is commenced which materially affects Lender's interest in the Property, then Lender, at Lender's option, with notice to Borrower if required by law, may make such appearances, disburse such sums and take such action as is necessary to protect Lender's interest, including, but not limited to: (a) any general or special taxes or ditch or water assessments levied or accruing against the Property; (b) the premiums on any insurance necessary to protect any improvements comprising a part of the Property; (c) sums due on any prior lien or encumbrance on the Property; (d) if the Property is a leasehold or is subject to a lease, all sums due under such lease; (e) the reasonable costs and expenses of defending, protecting, and maintaining the Property and Lender's interest in the Property, including repair and maintenance costs and expenses, costs and expenses of protecting and securing the Prop- erty, receiver's fees and expenses, inspection fees, appraisal fees, court costs, attorney fees and costs, and fees and costs of an attorney in the employment of the L.ender or holder of the certificate of purchase; (f) all other costs and expenses allowable by the evidence of debt or this Deed of Trust, and (g) such other costs and expenses which may be authorized by a court of competent jurisdiction. Borrower hereby assigns to Lender any right Borrower may have by reason of any prior encumbrance on the Property or by law or otherwise to cure any default under said prior encumbrance. Any amounts disbursed by Lender pursuant to this paragraph 9, with interest thereon, shall become additional indebtedness of Borrower secured by this Deed of Trust. Such amounts shall be payable upon notice from Under to Borrower requesting payment thereof, and Lender may bring suit to collect any amounts so disbursed plus interest specified in paragraph 2B (Note; Other Obliga- tions Secured). Nothing contained in this paragraph 9 shall require Lender to incur any expense or take any action hereunder. 10. Inspection. Lender may make or cause to be made reasonable entries upon and inspection of the Property, provided that Lender shall give Borrower notice prior to any such inspection specifying reasonable cause therefor related to Lender's interest in the Property. 11. Condemnation. The proceeds of any award or claim for damages, direct or consequential, in connection with any condemna- tion or other taking of the Property, or part thereof, or for conveyance in lieu of condemnation, are hereby assigned and shall be paid to Lender as herein provided. However, all of the rights of Borrower and Lender hereunder with respect to such proceeds are subject to the rights of any holder of a prior deed of trust. In the event of a total taking of the Property, the proceeds shall be applied to the sums secured by this Deed of Trust, with the excess, if any, paid to Borrower. In the event of a partial taking of the Property, the proceeds remaining after taking out any part of the award due any prior lien holder (net award) shall be divided between knder and Borrower, in the same ratio as the amount of the sums secured by this Deed of Trust immediately prior to the date of taking bears to Borrower's equity in the Property immediately prior to the date of taking. Borrower's equity in the Property means the fair market value of the Property less the amount of sums secured by both this Deed of Trust and all prior liens (except taxes) that are to receive any of the award, all at the value immediately prior to the date of taking. If the Property is abandoned by Borrower, or if, after notice by Lender to Borrower that the condemnor offers to make an award or settle a claim for damages, Borrower fails to respond to Lender within 30 days after the date such notice is given, Lender is authorized to collect and apply the proceeds, at Lender's option, either to restoration or repair of the Property or to the sums secured by this Deed of Trust. Any such application of proceeds to principal shall not extend or postpone the due date of the installments referred to in paragraphs 4 (Payment of Principal and Interest) and 23 (Escrow Funds for Taxes and Insurance) nor change the amount of such installments. 12. Borrower Not Released. Extension of the time for payment or modification of amortization ofthe sums secured by this Deed of Trust granted by Lender to any successor in interest of Borrower shall not operate to release, in any manner, the liability of the original Borrower, nor Borrower's successors in interest, from the original terms of this Deed of Trust. Lender shall not be required to commence proceedings against such successor or refuse to extend time for payment or otherwise modify amortization of the sums secured by this Deed ofTrust by reason of any demand made by the original Borrower nor Borrower's successors in interest. 13. Forbearance by Lender Not a Waiver. Any forbearance by Lender in exercising any right or remedy hereunder, or otherwise afforded by law, shall not be a waiver or preclude the exercise of any such right or remedy. 14. Remedies Cumulative. Each remedy provided in the Note and this Deed ofTrust is distinct from and cumulative to all other rights or remedies under the Note and this Deed of Trust or afforded by law or equity, and may be exercised concurrently, indepen- dently or successively. 15. Successors and Assigns Bound; Joint and Several Liability; Captions. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective successors and assigns of Lender and Borrower, subject to the provisions of --------4 1• 'T....r.·. ..f •1„, pra.,r,v· Ae<,imntion). All covenants and agreements of Borrower shall be joint and sever# The 402740 03/24/1997 01:18P DT 3 of 4 R 21.00 D 0.00 N 0.00 PITKIN COUNTY CLERK 16. Notice. Except for any notice required by law to be given in another manner, (a) any notice to Borrower provided for in this Deed ofTrust shall be in writing and shall be given and be effective upon (1) delivery to Borrower or (2) mailing such notice by flrst- class US. mail, addressed to Borrower at Borrowefs address stated herein or at such other address as Borrower may designate by notice to Lender as provided herein. and (b) any notice to Lender shall be in writing and shall be given and be effective upon (1) delivery to Lender or (2) mailing such notice by first-class US. mail, to Lender's address stated herein or to such other address as Lender may designate by notice to Borrower as provided herein. Any notice provided for in this Deed of Trust shall be deemed to have been given to Borrower or Lender when given in any manner designated herein. 17. Governing Law; Severability. The Note and this Deed ofTrust shall be governed by the law of Colorado. In the event that any provision or clause of this Deed ofTrust or the Note conflicts with the law, such conflict shall not affect other provisions ofthis Deed of Trust or the Note which can be given effect without the confiicting provision, and to this end the provisions of the Deed of Trust and Note are declared to be severable. 18. Acceleration; Foreclosure; Other Remedies. Except as provided in paragraph 24 (Transfer of the Property, Assumption), upon Borrower's breach of any covenant or agreement of Borrower in this Deed of Trust. or upon any default in a prior lien upon the Property, (unless Borrower has exercised Borrower's rights under paragraph 6 above), at Lender's option, all of the sums secured by this Deed of Trust shall be immediately due and payable (Acceleration). To exercise this option, Lender may invoke the power of sale and any other remedies permitted by law. Lender shall be entitled to collect all reasonable costs and expenses incurred in pursuing the remedies provided in this Deed of Trust, including, but not limited to, reasonable attorney's fees. If Lender invokes the power of sale, knder shall give written notice to Trustee of such election. Trustee shall give such notice to Borrower of Borrower's rights as is provided by law. Trustee shall record a copy of such notice as required by law Trustee shall advertise the time and place of the sale of the Property, for not less than four weeks in a newspaper of general circulation in each county in which the Property is situated, and shall mail copies of such notice of sale to Borrower and other persons as prescribed by law. After the lapse of such time as may be required by law, Trustee, without demand on Borrower, shall sell the Property at public auction to the highest bidder for cash at the time and place (which may be on the Property or any part thereof as permitted by law) in one or more parcel as Trustee may think best and in such order as Trustee may determine. Lender or Lender's designee may purchase the Property at any sale. It shall not be obligatory upon the purchaser at any such sale to see to the application of the purchase money. Trustee shall apply the proceeds of the sale in the following order: (a) to all reasonable costs and expenses of the sale, including, but not limited to, reasonable Trustee's and attorney's fees and costs o f title evidence; (b) to all sums secured by this Deed o f Trust and (c) the excess, if any, to the person or persons legally entitled thereto. 19. Borrower's Right to Cure Default. Whenever foreclosure is commenced for nonpayment of any sums due hereunder, the owners of the Property or parties liable hereon shall be entitled to cure said defaults by paying all delinquent principal and interest payments due as of the date of cure, costs, expenses, late charges, attorney's fees and other fees all in the manner provided by law. Upon such payment, this Deed ofTrust and the obligations secured hereby shall remain in full force and effect as though no Acceleration had occurred, and the foreclosure proceedings shall be discontinued. 20. Assignment of Rents; Appointment of Receiver; Lender in Possession. As additional security hereunder, Borrower hereby assigns to Lender the rents of the Properly; however, Borrower shall, prior to Acceleration under paragraph 18 (Acceleration; Fore- closure; Other Remedies) or abandonment of the Property, have the right to collect and retain such rents as they become due and payable. Lender or the holder of the Trustee's certificate of purchase shall be entitled to a receiver for the Property after Acceleration under paragraph 18 (Acceleration; Foreclosure; Other Remedies), and shall also be so entitled during the time covered by foreclosure pro- ceedings and the period of redemption, if any; and shall be entitled thereto as a matter o f Tight without regard to the solvency or insolvency of Borrower or of the then owner of the Property, and without regard to the value thereof. Such receiver may be appointed by any Court of competent jurisdiction upon ex parte application and without notice - notice being hereby exoressly waived. Upon Acceleration under paragraph 18 (Acceleration; Foreclosure; Other Remedies) or abandonment of the Property, Lender, in person, by agent or by judicially-appointed receiver, shall be entitled to enter upon, take possession of and manage the Property and to collect the rents of the Property including those past due. All rents collected by Lender or the receiver shall be applied, first, to payment of the costs of preservation and management of the Property, second, to payments due upon prior liens, and then to the sums secured by this Deed of Trust. Lender and the receiver shall be liable to account only for those rents actually received. 21. Release. Upon payment of all sums secured by this Deed of Trust, Lender shall cause Trustee to release this Deed of Trust and shall produce for Trustee the Note. Borrower shall pay all costs of recordation and shall pay the statutory Trustee's fees. lf Lender shall not produce the Note as aforesaid, then Lender, upon notice in accordance with paragraph 16 (Notice) from Borrower to Lender, shall obtain, at Lender's expense, and file any lost instrument bond required by Trustee or pay the cost thereof to effect the release of this Deed of Trust. 22. Waiver of Exemptions. Borrower hereby waives all right of homestead and any other exemption in the Property under state or federal law presently existing or hereafter enacted. 71 F<rraw Funrk far T:r,pq Anrl Tnairnnrp Thiq r,gragr:,ph 71 iq nnt Applir.1,1, if Wunrl. g. rlpiln,•A lv•Ir,lir irehpmer'IA ru,•0•"nt. thN42cumbrance. Subject to applicable law, Borrower shall pay to Lender, on each day installments of principal and intg;*tre payable UneNote, until the Note is paid in full, a sum (herein referred to as "Funds") equal tn -0-- ofthe yearly taxes and asses,QEnts which may attain priority over this Deed of Trust, rl'"f -610*Irly premium installments for Properly rn,uence, all as reasonably estimated initially and from time to time by Lender-Alf(Re basis of assessments and bills and reasonable estimait54~reof, taking into account any excess Funds not used or short*o. The principal of the Funds shall be heli0. a separate account by the Lender in trust forth~beffEfit of the Borrower and deposited in an institution the deposits or accounts of wineIMIP insured or guaranteed by a feder~Ppmate agency. Lender shall apply the Funds to pay said taxes, assessments and insurance premillrn,~fnder may not charge-fgWo nolding and applying the Funds, analyzing said account or verifying and compiling said assessments andb,142'ender shaperDe required to pay Borrower any interest or earnings on the Funds. Lender shall give to Borrower, without charge, an ectm421»Counting of the Funds showing credits and debits to the Funds and the purpose for which each debit to the Funds was made..Ibe-Fah¢14~e pledged as additional security for the sums secured by this Deed of Trust. If the amount of the Funds held by Lender sh~Per-be sufficient to pay taxes, hstements and insurance premiums as they fall due, Borrower shall pay to Lender any amountnecessary to make up the deficiency with<30 days from the date notice is given in accordance with paragraph 16 (Notic*Mlender to Borrower requesting payment thereof. rre*~ed however, if the loan secured by this Deed of Trust is subject~*RESPA or other laws regulating Escrow Accounts, such deficlenGL surplus or an other required adjustment shall be paid_geatted or adjusted in compliance with such applicable laws. Upon payment i11.futrof all sums secured by this Deed ofTrust, Lender shall simultaneously refund to Borrowsqpy Funds held by Lender. If ul*4hragraph 18 (Acceleration-, Foreclosure; Other Remedies) the Property is sold or the Property is otne,* acquired by Len>punder shall apply, no later than immediately prior to the sale of the Property or its acquisition by Lender, whiche™.eccurs 8r*-Kny Fmwk hplri hy T ,•nrler 2, thp timp nf Arrlir2tinn ag 9 rrprlit :,gainft th,• wimq ier,ired hy thu 11„4 Af Tri,it 24. Transfer of the Property; Assumption. The following events shall be referred to herein as a -Transfer": (i) a transfer or conveyance of title (or any portion thereof, legal or equitable) of the Property (or any part thereof or interest therein), (ii) the execution of a contract or agreement creating a right to title (or any portion thereof, legal or equitable) in the Property (or any part thereof or interest therein), (iii) or an agreement granting a possessory right in the Property (or any portion thereof), in excess of three (3) years, (iv) a sale or transfer of, or the execution of a contract or agreement creating a right to acquire or receive, more than fifty percent (50%) of the controlling interest or more than fifty percent (50%) of the beneficial interest in the Borrower, (v) the reorganization, liquidation or dissolution of the Borrower. Not to be included as a Transfer arc (i) the creation of a lien or encumbrance subordinate to this Deed of Trust, (ii) the creation of a purchase money security interest for household appliances, or (iii) a transfer by devise, descent or by operation of the law upon the death of a joint tenant. At the election of Lender, in the event of each and every transfer: (a) All sums secured by this Deed of Trust shall become immediately due and payable (Acceleration). (b) If a Transfer occurs and should Lender not exercise Lender's option pursuant to this paragraph 24 to Accelerate, Transferee shall be deemed to have assumed all of the obligations of Borrower under this Deed of Trust including all sums secured hereby whether or not the instrument evidencing such conveyance, contract or grant expressly so provides. This covenant shall run with the Properly and remain in full force and effect until said sums are paid in full. The Lender may without notice to the Borrower deal with Transferee in the same manner as with the Borrower with reference to said sums including the payment or credit to Transferee of undisbursed (c) Should Lender not elect to Accelerate upon the occurrence of such Transfer then, subject to (b) above, the mere fact of a lapse oftime or the acceptance of payment subsequent to any of such events, whether or not Lender had actual or constructive notice of such Transfer, shall not be deemed a waiver of Lender's right to make such election nor shall Lender be estopped therefrom by virtue thereof. The issuance on behalf ofthe Lender of a routine statement showing the status of the loan, whether or not Lender had actual or constructive notice of such Transfer, shall not be a waiver or estoppel of Lender's said rights. 25. Borrower's Copy. Borrower acknowledges receipt of a copy of the Note and this Deed of Trust. EXECUTED BY BORROWER. IF BORROWER IS NATURAL PERSON(of// cPA¢U SAM HOUSTON . - doing huginesq aq IF BORROWER IS CORPORATION: ATTEST: Namc of Corporation By Secretary President (SEAL) IF BORROWER IS PARTNERSHIP: Name of Partnership by A General Partner STATE OF COLORADO PITKIN 3 SS County of The foregoing instrument wasacknowledged before methis .2044 rl:•un '11, March, 1997 SAM HOUSTON t KOTAR A li ~fl~~tRA by* f .T# b Al - {\4++ 1 -i . --= ~ ' BUB L\G/~ W, 11-ek@Y Witness my hand and official seal. 4»4 My commission expirrf ,doy syl(ge~/'~s~publ!8~ -m......0 , 'flutiEJEBEgits)07'i MY COMMIS®NA:PIRER.. JULN43'0~ Lt;N,4e,€ *®,(p6lor*f 81611 Rthi UP€,4 Address *If a natural person or persons, insert the name(s) of such person(s). If a corporation, insert, for example, "John Doe as President and Jane Doe as Secretary of Doe & Co., a Colorado corporation." Ifa partnership, insert, for example, "Sam Smith as general partner in and for Smith & Smith, a general partnership." 1111111111111111111111 lilli'111111111111111111'mill'll 402740 03/24/1997 01:18P DT 4 of 4 R 21.00 D 0.00 N 0.00 PITKIN COUNTY CLERK O -5 3 r : 0 1 f i 3 ss F TRUST TRUSTEE P.ION.1 loj Poly SCA lU@Uln-11SU KInp n pue' - 08Ed . COLORADO, ~N uolid=11 - I lili'11111111111111111111111111111111111111111111111111 1 405371 08/13/1997 03:02P ASGN DT 1 of 1 R 6.00 D 0.00 N 0.00 PITKIN COUNTY CLERK Recorder ASSIGNMENT OF DEED OF TRUST OR MORTGAGE DEED June 2. 1997 Date of Assignment Metro National Exchange Services . Tne . Assignee 111 E. Broadway Address Salt Lake City, UT 48111 Pitkin Exchange, Inc., a Assignor Colorado corporation 601 E. Hopkin Address Aspen. CO 816]1 March 24, 1997 Date of Decd of Trusi March 24, 1997 1 Recording date of Deed of Trust Pitkin County of Reconling 402740 Book No. Page No. Film No. Reception No. KNOW ALL MEN BY THESE PRESENTS that Sam Houston did grant, bargain, sell and convey the property described in the Deed of Trust or Mortgage Deed, herein referred to as Deed of Trust, to the Public Trustee* in the County in which said Deed of Trust was recorded, to be held in trust to secure the payment of a Promissory Note for the original principal sum of Two hundred fortv thousand dollars and no/!00********** , ****************************************************** dolleirs, together with interest. NOW THEREFORE, inconsideration ofthe sum of ten dollars _and other good and valuable consideration dollars, paid to the assignor, the receipt and sufficiency of which is hereby acknowledged, the said assignor hereby assigns unto the said assignee, the said Deed of Trust and note secured thereby, together with all moneys now owing or that may hereafter become due or owing in respect thereof, and the full benefit of all the powers and of all the covenants and provisos therein contained, and the said assignor hereby grants and conveys unto the said assignee, the following described property, situate in the ** County of Pitkin , State of Colorado, to wit: UNIT B, MARTIN CONDOMINIUMS, according to the Condominium Map thereo f recorded May 9, 1989 in Plat Book 22 at Page 51, and as defined and described in the Condominium Declaration recorded June 22, 1989 in Book 595 at Page 714 as Reception No. 312662 and First Amendment to the Condominium Declaration for Martin Condominiums, recorded September 18, 1995 in Book 793 at Page 901. also known by street and number as: 311 West Gillespie, Aspen, CO 81611 TO HAVE AND TO HOLD the said Deed of Trust and note, and also the said property unto the said assignee forever, subject to the terms contained in said Deed of Trust and note. And the said assignor hereby covenants with the assignee that the said Deed of Trust and note hereby assigned is a good and valid securitv and that the sum of Two hundred fortv thousand dollars and no/l 00******* ********************************* dollars remains unpaid on the said note and that the said assignor has not done or permitted any act, matter or thing whereby the said Deed of Trust has been released or discharged, either partly or in entirety and has the right to assign said Deed of Trust and note and will upon request, do, perform and execute every act necessary to enforce the full performance of the covenants and agreements therein contained. This assignment and the covenants herein shall extend to and be binding upon the heirs, personal representatives, successors and assigns of the respective parties hereto. IN WITNESS WHEREOF, the assignor has executed this assignment the day and year first above written. Attes K 0 06 6. 401/ta Joy Sa Higens, ~6&~idedt State of Colorado I-/ County of Pitkin The foregoing instrument was acknowledged before me ot. Jiine 2, ]997 (date) by Pitkin Exchange. Inc.. a Colorado corporation bv Jov S. Higens. .-, A -341100.. hand President ly». an sea //*410 1 L #.1 0 '41 4 2 (919 Date Commission Expires ,/0.2:00.....6·.4.54 N kuL _. - S "1 -- 981-464