The URL can be used to link to this page

Home My WebLink AboutLand Use Case.620 E Cooper Ave.A136-00 CASE NUMBER A136 -00 PARCEL ID if 2737- 182 -25023 CASE NAME Hunter Plaza Telecom PROJECT ADDRESS 620 E. Cooper PLANNER Greg Woods CASE TYPE Wireless Telecom Facility OWNER/APPLICANT Hunter Plaza Associates LLP REPRESENTATIVE Nextel Communications /Justin Robinson DATE OF FINAL ACTION 11/13/00 CITY COUNCIL ACTION PZ ACTION ADMIN ACTION Approved BOA ACTION DATE CLOSED 1/2/00 BY J. Lindt • MEMORANDUM TO: Julie Ann Woods, Community Development Director FROM: Greg Woods, Planning Intern RE: Nextel Communications proposal to locate a Wireless Telecommunications Facility at 620 E. Cooper DATE: November 9, 2000 SUMMARY: Nextel Communications, represented by Justin Robinson, representing Anthony J. Mazza, Managing Partner for Hunter Plaza Associates, LLP, has applied for the installation of telecommunication equipment to be installed on the roof of the building located at 620 E. Cooper. The parcel is located outside of the Commercial Core Historic District and is not within any of the Mountain View Planes pursuant to section 26.435.050 of the City of Aspen Land Use Code. The application proposes to locate up to twelve panel type antennas on the "upper' roof. The top of the new antennas will not exceed five feet above the existing parapet roofline. Nextel proposes to locate an equipment shelter on the "lower" roof of the Hunter Square complex. The equipment shelter will be Largely hidden from pedestrian and automobile traffic from the Cooper Street vantage point. The shelter is designed to match the current brick of the building and will be visible as an appurtenance from the rear of the building. The applicant contends that the building is under its allotted FAR and therefore has room for the addition of the equipment shelter, with dimensions of 12'x16'. The application meets the standards for telecommunication equipment, pursuant to Section 26.575.130. Attached are the relevant criteria. Also attached is the application, containing a picture of the proposed equipment. Staff recommends The Community Development Director approve this application, with eight conditions. APPLICANT: Justin Robinson, Site Acquisition Consultant. Representing Anthony J. Mazza, Managing Partner for Hunter Plaza Associates, LLP LOCATION: 620 E. Cooper (Roof). 1 ZONING: C -1, Commercial CURRENT AND PROPOSED LAND USE: Mixed Use, Commercial REVIEW PROCEDURE: Wireless Telecommunication Service Facilities: The Community Development Director may approve, approve with conditions, or disapprove an application pursuant to Section 26.575.130 of the Land Use Code. STAFF COMMENTS: Review criteria and Staff Findings have been included as Exhibit "A." The application has been included as Exhibit `B." Photo simulation of roof top antennas and equipment shelter have been included as Exhibit "C." RECOMMENDATION: Staff recommends the Community Development Director approve the Nextel Communications equipment proposed for the roof of 620 E. Cooper, with conditions. APPROVAL: I hereby approve the Nextel Communications equipment proposed for the roof of the 620 E. Cooper with the following conditions: 1. A building permit shall be obtained by the applicant. A copy of this approval shall accompany the building permit application. 2. The applicant shall obtain a right -of -way permit if there is a disturbance of the public right -of -way during construction. 3. The applicant shall obtain a Temporary Encroachment License during construction if the public right -of -way is to be used for construction storage or staging. 4. The applicant shall submit a traffic control plan if there is an encroachment on the public right -of -way that affects the normal traffic flow. 5. The addition of the brick equipment shelter shall not make the structure exceed the allowable FAR in a C -1 Zone District. 6. The applicant shall paint all antennas a flat brownish -red color that matches that of the building. 7. The antennas shall be installed without any architectural skirting. 8. The equipment shelter shall be designed to match the color and material of the existing building. 2 • . , date ___41/431. ,;~ Ju jfirAnn Woods, AICP C. unity Development Director City of Aspen J , date It/24 Justin Robin on Nextel Co unic- ions Site Acquisition Consultant ATTACHMENTS: Exhibit A -- Review Criteria and Staff Comments Exhibit B -- Development Application Exhibit C -- Photo Simulation of Proposal 3 Exhibit A Telecom. Equipment F. Review Standards. The following standards are designed to foster the City's safety and aesthetic interests without imposing unreasonable limitations on wireless telecommunication services facilities and equipment. 1. Setbacks. At a minimum, all wireless telecommunication services facilities and equipment shall comply with the minimum setback requirements of the underlying zone district; if the following requirements are more restrictive than those of the underlying zone district, the more restrictive standard shall apply. a. All facilities shall be located at least fifty (50) feet from any property lines, except when roof - mounted (above the eave line of a building). Flat -roof mounted facilities visible from ground level within one - hundred (100) feet of said property shall be : oncealed to the extent possible within a compatible architectural element, such as a chimney or ventilation pipe, or behind architectural skirting of the type generally used to conceal HVAC equipment. Pitched -roof mounted facilities shall always be concealed within a compatible architectural element, such as chimneys or ventilation pipes. b. Monopole towers shall be set back from any residentially zoned properties a distance of at least three (3) times the monopole's height (i.e., a sixty (60) foot setback would be required for a twenty (20) foot monopole), and the setback from any public road, as measured from the right -of -way line, shall be at least equal to the height of the monopole. c. No wireless communication facility may be established within one- hundred (100) feet of any existing, legally established wireless communication facility except when located on the same building or structure. d. No portion of any antenna array shall extend beyond the property lines or into any front yard area. Guy wires shall not be anchored within any front yard area, but may be attached to the building. Staff Finding: Staff feels that architectural skirting for the antennas will be more obtrusive than helpful in covering the proposed antennas. The Nextel facility will not encroach beyond any property lines nor utilize guy wires. The proposed antennas will be attached to the same building. 2. Height. Wireless telecommunication services facilities and/or equipment shall not exceed thirty-five (35) feet in height or the maximum permissible height of the given zone district, whichever is more restrictive. In addition: a. Whenever a wireless telecommunication services antenna is attached to a building roof, the antenna and support system for panel antennas shall not exceed five (5) feet above the highest portion of that roof, including parapet walls, and the antenna and support system for whip antennas shall not exceed fifteen (15) feet above the highest portion of that roof, including parapet walls. b. If the building itself exceeds the height limitations of the zone, and such excess height was legally established (i.e., granted a variance, approved by PUD, etc.), then the combined height of the building and antenna shall not exceed the maximum height allowed by such approval unless determined by the Community Development Director to be suitably camouflaged. c. If the building is constructed at or above the zone district's height limit, or if combined height of the building and the antenna would exceed the applicable height limit, the additional height of the antenna must be reviewed pursuant to the process and standards (in addition to the standards of this Section) of conditional use review, Section 26.425.010, unless determined by the Community Development Director to be suitably camouflaged (in which case an administrative approval may be granted). d. Support and/or switching equipment shall be located inside the building, unless it can be fully screened from view as provided in the "Screening" standards (26.475.130(F)(5)) below. Staff Finding: The 12 panel type proposed antennas that extend above the highest roof point by five feet will be painted to blend into the building. The proposed height of the equipment shelter placed on the lower roof will be three feet lower than the height of the upper roof. The equipment shelter will be designed and constructed using the building materials designed to match the existing building exterior. 3. Architectural Compatibility. Whether manned or unmanned, wireless telecommunication services facilities shall be consistent with the architectural style of the surrounding architectural environment (planned or existing) considering exterior materials, roof form, scale, mass, color, texture and character. In addition: a. If such facility is accessory to an existing use, the facility shall be constructed out of materials that are equal to or of better quality than the materials of the principal use. b. Wireless telecommunication services equipment shall be of the same color as the building or structure to which or on which such equipment is mounted, or as required by the appropriate decision - making authority (Community Development Director, Historic Preservation Commission, Planning and Zoning Commission, or City Council, as applicable). c. Whenever wireless telecommunication services equipment is mounted to the wall of a building or structure, the equipment shall be mounted in a configuration designed to blend with and be architecturally integrated into a building or other concealing structure, be as flush to the wall as technically possible. and shall not project above the wall on which it is mounted. d. Monopole support buildings, which house cellular switching devices and/or other equipment related to the use, operation or maintenance of the subject monopole, must be designed to match the architecture of adjacent buildings. If no recent and/or reasonable architectural theme is present, the Community Development Director may require a particular design that is deemed to be suitable to the subject location. e. All utilities associated with wireless communication facilities or equipment shall be underground (also see "Screening" below). Staff Finding: To the extent practical, the antennas are compatible with the architecture of the building. Although the antennas can be seen from either side of the building, staff feels that the proposed architectural skirting will be more obtrusive than leaving the antennas unshielded. Staff is not recommending any screening measures be implemented. The construction of the associated equipment shelter will be consistent with the building. 4. Compatibility With the Natural Environment. Wireless telecommunication services facilities and equipment shall be compatible with the surrounding natural environment considering land forms, topography, and other natural features, and shall not dominate the landscape or present a dominant silhouette on a ridge line. In addition: a. If a location at or near a mountain ridge line is selected, the applicant shall provide computerized, three dimensional, visual simulations of the facility or equipment and other appropriate graphics to demonstrate the visual impact on the view of the affected ridge(s) or ridge line(s); an 8040 Greenline Review, pursuant to the provisions of Section 26.435.030, may also be required. b. Site disturbances shall be minimized, and existing vegetation shall be preserved or improved to the extent possible, unless it can be demonstrated that such disturbance to vegetation and topography results in less visual impact to the surrounding area. c. Surrounding view planes shall be preserved to the extent possible. d. All wireless telecommunication services facilities and equipment shall comply with the Federal Communication Commission's regulations concerning maximum radio frequency and electromagnetic frequency emissions. Staff Finding: In order for the proposed location to not be affected by ridgeline, 8040, or mountain view plane restrictions, staff is recommending the proposed skirting on the upper roof not be built. The applicant has committed to meeting FCC regulations regarding the operation of wireless service facilities. 5. Screening. Roof and ground mounted wireless telecommunication services facilities and equipment, including accessory equipment, shall be screened from adjacent and nearby public rights -of -way and public or private properties by paint color selection, parapet walls, screen walls, fencing, landscaping, and/or berming in a manner compatible with the building's and/or surrounding environment's design, color, materials, texture, land forms and/or topography, as appropriate or applicable. In addition: a. Whenever possible, if monopoles are necessary for the support of antennas, they shall be located near existing utility poles, trees, or other similar objects; consistent of colors and materials that best blend with their background; and, have no individual antennas or climbing spikes on the pole other than those approved by the appropriate decision - making authority (Community Development Director, Historic Preservation Commission, Planning and Zoning Commission, or City Council, as applicable). b. For ground mounted facilities, landscaping may be required to achieve a total screening effect at the base of such facilities or equipment in order to screen the mechanical characteristics; a heavy emphasis on coniferous plants for year -round screening may be required. Landscaping shall be of a type and variety capable of growing within one (1) year to a landscape screen which satisfactorily obscures the visibility of the facility. c. Unless otherwise expressly approved, all cables for a facility shall be fully concealed from view underground or inside of the screening or monopole structure supporting the antennas; any cables that cannot be buried or otherwise hidden from view shall be painted to match the color of the building or other existing structure. d. Chain link fencing shall be unacceptable to screen facilities, support structures, or accessory and related equipment (including HVAC or mechanical equipment present on support buildings); fencing material, if used, shall be six (6) feet in height or less and shall consist of wood, masonry, stucco, stone or other acceptable materials that are opaque. e. Notwithstanding the foregoing, the facility shall comply with all additional measures deemed necessary to mitigate the visual impact of the facility. Also, in lieu of these screening standards, the Community Development Director may allow use of an alternate detailed plan and specifications for landscape and screening, including plantings, fences. walls, sign and structural applications, manufactured devices and other features designed to screen, camouflage and buffer antennas, poles and accessory uses. For example, the antenna and supporting structure or monopole may be of such design and treated with an architectural material so that it is camouflaged to resemble a tree with a single trunk and branches on its upper part. The plan should accomplish the same degree of screening achieved by meeting the standards outlined above. Staff Finding: Staff feels that leaving the 12 proposed antennas exposed without skirting is less obtrusive than constructing a five foot high screen around the antennas. Although the antennas will be visible from the street, staff feels if the antennas are painted a flat mute brownish -red color they will be concealed more effectively than by creating a Larger eye sore with the proposed screening. The proposed equipment shelter will be designed to blend in with the existing building and share the same color. 6. Lighting and Signage. In addition to other applicable sections of the code regulating signage or outdoor lighting, the following standards shall apply to wireless telecommunication services facilities and equipment: a. The light source for security lighting shall feature down - directional, sharp cut -off luminaries to direct, control, screen or shade in such a manner as to ensure that there is no spillage of illumination off -site. b. Light fixtures, whether free - standing or tower - mounted, shall not exceed twelve (12) feet in height as measured from finished grade. c. The display of any sign or advertising device other than public safety warnings, certifications or other required seals on any wireless communication device or structure is prohibited. d. The telephone number(s) to contact in an emergency shall be posted on each facility in conformance with the provisions of Chapter 26.510 of the Aspen Municipal Code. Staff Finding: The equipment proposed does not require any lighting. No signage other than what is mandated by the FCC will exist. 7. Access Ways. In addition to ingress and egress requirements of the Building Code, access to and from wireless telecommunication services facilities and equipment shall be regulated as follows: a. No wireless communication device or facility shall be located in a required parking, maneuvering or vehicle /pedestrian circulation area such that it interferes with, or in any way impairs, the intent or functionality of the original design. b. The facility must be secured from access by the general public but access for emergency services must be ensured. Access roads must be capable of supporting all potential emergency response vehicles and equipment. c. The proposed easement(s) for ingress and egress and for electrical and telephone shall be recorded at the Pitkin County Clerk and Recorder's Office prior to the issuance of building permits. Staff Finding: The equipment is not proposed in an area requiring vehicular circulation. Exhibit A Telecom. Equipment F. Review Standards. The following standards are designed to foster the City's safety and aesthetic interests without imposing unreasonable limitations on wireless telecommunication services facilities and equipment. 1. Setbacks. At a minimum, all wireless telecommunication services facilities and equipment shall comply with the minimum setback requirements of the underlying zone district; if the following requirements are more restrictive than those of the underlying zone district, the more restrictive standard shall apply. a. All facilities shall be located at least fifty (50) feet from any property lines, except when roof - mounted (above the eave line of a building). Flat -roof mounted facilities visible from ground level within one - hundred (100) feet of said property shall be concealed to the extent possible within a compatible architectural element, such as a chimney or ventilation pipe, or behind architectural skirting of the type generally used to conceal HVAC equipment. Pitched -roof mounted facilities shall always be concealed within a compatible architectural element, such as chimneys or ventilation pipes. b. Monopole towers shall be set back from any residentially zoned properties a distance of at least three (3) times the monopole's height (i.e., a sixty (60) foot setback would be required for a twenty (20) foot monopole), and the setback from any public road, as measured from the right -of -way line, shall be at least equal to the height of the monopole. c. No wireless communication facility may be established within one- hundred (100) feet of any existing, legally established wireless communication facility except when located on the same building or structure. d. No portion of any antenna array shall extend beyond the property lines or into any front yard area. Guy wires shall not be anchored within any front yard area, but may be attached to the building. Staff Finding: Staff feels that architectural skirting for the antennas will be more obtrusive than helpful in covering the proposed antennas. The Nextel facility will not encroach beyond any property lines nor utilize guy wires. The proposed antennas will be attached to the same building. 2. Height. Wireless telecommunication services facilities and/or equipment shall not exceed thirty -five (35) feet in height or the maximum permissible height of the given zone district, whichever is more restrictive. In addition: a. Whenever a wireless telecommunication services antenna is attached to a building roof, the antenna and support system for panel antennas shall not exceed five (5) feet above the highest portion of that roof, including parapet walls, and the antenna and support system for whip antennas shall not exceed fifteen (15) feet above the highest portion of that roof, including parapet walls. b. If the building itself exceeds the height limitations of the zone, and such excess height was legally established (i.e., granted a variance, approved by PUD, etc.), then the combined height of the building and antenna shall not exceed the maximum height allowed by such approval unless determined by the Community Development Director to be suitably camouflaged. c. If the building is constructed at or above the zone district's height limit, or if combined height of the building and the antenna would exceed the applicable height limit, the additional height of the antenna must be reviewed pursuant to the process and standards (in addition to the standards of this Section) of conditional use review, Section 26.425.010, unless determined by the Community Development Director to be suitably camouflaged (in which case an administrative approval may be granted). d. Support and/or switching equipment shall be located inside the building, unless it can be fully screened from view as provided in the "Screening" standards (26.475.130(F)(5)) below. Staff Finding: The 12 panel type proposed antennas that extend above the highest roof point by five feet will be painted to blend into the building. The proposed height of the equipment shelter placed on the lower roof will be three feet lower than the height of the upper roof. The equipment shelter will be designed and constructed using the building materials designed to match the existing building exterior. 3. Architectural Compatibility. Whether manned or unmanned, wireless telecommunication services facilities shall be consistent with the architectural style of the surrounding architectural environment (planned or existing) considering exterior materials, roof form, scale, mass, color, texture and character. In addition: a. If such facility is accessory to an existing use, the facility shall be constructed out of materials that are equal to or of better quality than the materials of the principal use. b. Wireless telecommunication services equipment shall be of the same color as the building or structure to which or on which such equipment is mounted, or as required by the appropriate decision - making authority (Community Development Director, Historic Preservation Commission, Planning and Zoning Commission, or City Council, as applicable). c. Whenever wireless telecommunication services equipment is mounted to the wall of a building or structure, the equipment shall be mounted in a configuration designed to blend with and be architecturally integrated into a building or other concealing structure, be as flush to the wall as technically possible, and shall not project above the wall on which it is mounted. d. Monopole support buildings, which house cellular switching devices and/or other equipment related to the use, operation or maintenance of the subject monopole, must be designed to match the architecture of adjacent buildings. If no recent and/or reasonable architectural theme is present, the Community Development Director may require a particular design that is deemed to be suitable to the subject location. e. All utilities associated with wireless communication facilities or equipment shall be underground (also see "Screening" below). Staff Finding: To the extent practical, the antennas are compatible with the architecture of the building. Although the antennas can be seen from either side of the building, staff feels that the proposed architectural skirting will be more obtrusive than leaving the antennas unshielded. Staff is not recommending any screening measures be implemented. The construction of the associated equipment shelter will be consistent with the building. 4. Compatibility With the Natural Environment. Wireless telecommunication services facilities and equipment shall be compatible with the surrounding natural environment considering land forms, topography, and other natural features, and shall not dominate the landscape or present a dominant silhouette on a ridge line. In addition: a. If a location at or near a mountain ridge line is selected, the applicant shall provide computerized, three dimensional, visual simulations of the facility or equipment and other appropriate graphics to demonstrate the visual impact on the view of the affected ridge(s) or ridge line(s); an 8040 Greenline Review, pursuant to the provisions of Section 26.435.030, may also be required. b. Site disturbances shall be minimized, and existing vegetation shall be preserved or improved to the extent possible, unless it can be demonstrated that such disturbance to vegetation and topography results in less visual impact to the surrounding area. c. Surrounding view planes shall be preserved to the extent possible. d. All wireless telecommunication services facilities and equipment shall comply with the Federal Communication Commission's regulations concerning maximum radio frequency and electromagnetic frequency emissions. Staff Finding: In order for the proposed location to not be affected by ridgeline, 8040, or mountain view plane restrictions, staff is recommending the proposed skirting on the upper roof not be built. The applicant has committed to meeting FCC regulations regarding the operation of wireless service facilities. 5. Screening. Roof and ground mounted wireless telecommunication services facilities and equipment, including accessory equipment, shall be screened from adjacent and nearby public rights -of -way and public or private properties by paint color selection, parapet walls, screen walls, fencing, landscaping, and /or berming in a manner compatible with the building's and/or surrounding environment's design, color, materials, texture, land forms and/or topography, as appropriate or applicable. In addition: a. Whenever possible, if monopoles are necessary for the support of antennas, they shall be located near existing utility poles, trees, or other similar objects; consistent of colors and materials that best blend with their background; and, have no individual antennas or climbing spikes on the pole other than those approved by the appropriate decision - making authority (Community Development Director, Historic Preservation Commission, Planning and Zoning Commission, or City Council, as applicable). b. For ground mounted facilities, landscaping may be required to achieve a total screening effect at the base of such facilities or equipment in order to screen the mechanical characteristics; a heavy emphasis on coniferous plants for year -round screening may be required. Landscaping shall be of a type and variety capable of growing within one (1) year to a landscape screen which satisfactorily obscures the visibility of the facility. c. Unless otherwise expressly approved, all cables for a facility shall be fully concealed from view underground or inside of the screening or monopole structure supporting the antennas; any cables that cannot be buried or otherwise hidden from view shall be painted to match the color of the building or other existing structure. d. Chain link fencing shall be unacceptable to screen facilities, support structures, or accessory and related equipment (including HVAC or mechanical equipment present on support buildings); fencing material, if used, shall be six (6) feet in height or less and shall consist of wood, masonry, stucco, stone or other acceptable materials that are opaque. e. Notwithstanding the foregoing, the facility shall comply with all additional measures deemed necessary to mitigate the visual impact of the facility. Also, in lieu of these screening standards, the Community Development Director may allow use of an alternate detailed plan and specifications for landscape and screening, including plantings, fences, walls, sign and structural applications, manufactured devices and other features designed to screen, camouflage and buffer antennas, poles and accessory uses. For example, the antenna and supporting structure or monopole may be of such design and treated with an architectural material so that it is camouflaged to resemble a tree with a single trunk and branches on its upper part. The plan should accomplish the same degree of screening achieved by meeting the standards outlined above. Staff Finding: Staff feels that leaving the 12 proposed antennas exposed without skirting is less obtrusive than constructing a five foot high screen around the antennas. Although the antennas will be visible from the street, staff feels if the antennas are painted a flat mute brownish -red color they will be concealed more effectively than by creating a larger eye sore with the proposed screening. The proposed equipment shelter will be designed to blend in with the existing building and share the same color. 6. Lighting and Signage. In addition to other applicable sections of the code regulating signage or outdoor lighting, the following standards shall apply to wireless telecommunication services facilities and equipment: a. The light source for security lighting shall feature down - directional, sharp cut -off luminaries to direct, control, screen or shade in such a manner as to ensure that there is no spillage of illumination off -site. b. Light fixtures, whether free- standing or tower - mounted, shall not exceed twelve (12) feet in height as measured from finished grade. c. The display of any sign or advertising device other than public safety warnings, certifications or other required seals on any wireless communication device or structure is prohibited. d. The telephone number(s) to contact in an emergency shall be posted on each facility in conformance with the provisions of Chapter 26.510 of the Aspen Municipal Code. Staff Finding: The equipment proposed does not require any lighting. No signage other than what is mandated by the FCC will exist. 7. Access Ways. In addition to ingress and egress requirements of the Building Code, access to and from wireless telecommunication services facilities and equipment shall be regulated as follows: a. No wireless communication device or facility shall be located in a required parking, maneuvering or vehicle /pedestrian circulation area such that it interferes with, or in any way impairs, the intent or functionality of the original design. b. The facility must be secured from access by the general public but access for emergency services must be ensured. Access roads must be capable of supporting all potential emergency response vehicles and equipment. c. The proposed easement(s) for ingress and egress and for electrical and telephone shall be recorded at the Pitkin County Clerk and Recorder's Office prior to the issuance of building permits. Staff Finding: The equipment is not proposed in an area requiring vehicular circulation. .tee. Th Nextel Communications 4643 S. Ulster Street, Suite 500, Denver, CO 80237 303 721 -3400 NBUEL October 20, 2000 City of Aspen Community Development 130 South Galena Street Aspen, CO 81611 -1975 Re: Nextel Communications proposal to locate a Wireless Telecommunications Facility at 620 E. Cooper. Nextel Site C0451 -C Review Standards To Whom It May Concern: This narrative is intended to act as part of the required application submittal requirements to the City of Aspen to locate a wireless telecommunication facility on behalf of Nextel Communications, ( "Nextel "), a Delaware corporation, at the Hunter Square retail building located at 620 East Cooper, Aspen, CO 81611. Pursuant to the submittal requirements and the development review standards, a written narrative outlining the proposals compliance to the Review Standards for Wireless Telecommunications Facilities and Equipment. Please see below a description of the proposed project as well as an outline of the review standards and Nextel's compliance. Nextel proposes to locate an equipment shelter on the "lower" roof of the Hunter Square complex. Currently this complex houses offices, a restaurant and numerous retail establishments. As depicted by the enclosed site plan and elevation drawings of the building, the placement of the equipment shelter will be largely hidden from pedestrian and automobile traffic from the front vantage point. The equipment shelter is designed to match the current brick of the l'su and will be visible as an appurtenance from the rear of the 4 I 1. The photo simulations that are enclosed within pac et • eprct e location of t q ment shelter. In addition to the equipment shelter Nexte proposes to locate up to twelve (12) panel type antennas on the `apper" roof which will be screened from view Uv a - scre that Nextel will install. This screen wall will also be designed to match and blend with the existing building materials. The addition of the screen wall will also act to screen the existing HVAC units and other conduit and venting apparatuses that are currently unobstructed. Below is Nextel's justification and compliance with the review standards set forth by the City of Aspen. 1. Setbacks The Nextel Site meets all of the required setback criteria. a. The antennas will be concealed behind "architectural skirtin " as required by by the Review tandards. b. Not applicable c. The Nextel facility meets the required 100' separation from all legally established facilities. d. The Nextel facility will not encroach beyond any property lines nor utilize_ guy wires. 2. Height. The Nextel facility will comply with the 35' height limit with in this zone. a. The antennas will not exceed more than the 5' limit above the highest portion of the r of . b. Not Applicable as the facility and the building meet the require height limit in the zone. c. Not Applicable as the facility and the building meet the require height limit in the zone. d. The corresponding Nextel equipment shelter will be placed on the exterior of the "lower" roof and designed and constructed using the building materials designed to match the buildings exterior. Screening will also conceal all associated conduit and cabling. These proposed screening methods are consistent with the Screening Standards (26.475.130(F)(5)). 3. Architectural Compatibility. The proposed Nextel facility will be consistent and compatible with the existing building and surrounding properties. a. Due to the fact that this is an accessory use, Nextel will use all m ate�o match the design, texture and color of the exist h mg iuldm¢, b. As stated above all colors, texture and will match the existing building. c. Not applicable as the antennas will be screened on the roof. d. The construction of the associated equipment shelter will be consistent with the building. e. All utilities, cabling and conduit will be screened from view and designed to blend in with the building where applicable. 4. Compatibility with the Natural Environment. The proposed Nextel Facility will not impact the natural surrounding environment. This site is to be located on a building and a tremendous amount of effort will be placed on designing and constructing this proposed facility to be virtually invisible ■ w to the public. No existing landscaping, vegetation or view planes will be altered or impacted by the proposed facility. 5. Screening. The proposed facility will be designed to blend in with the existing building. Alle elements of the proposed facility are designed and constructed to either match the existing building or be completely hidden from view. a. Not applicable. b. Not applicable, this site will not require any additional landscaping. c. All cableing, conduit and wiring will be screened to match the existing color of the building. d. Not applicable, no fencing will be used at this proposed facility. e. Nextel is proposing to screen the facility from view of the public by all required means. Nextel will also comply with all reasonable additional conditions or requirements from the Community Development Director or reviewing authority. 6. Lighting and Signage. The Nextel facility will comply with all lighting and signage requirements. a. Any lighting required on the exterior of the equipment shelter will be utilized by access personnel and will not affect the public. b. Not applicable. c. Nextel will not have any signage other than what is mandated by the FCC. d. All emergency contact notification will be visually appairent. 7. Access Way. The proposed Nextel facility will utilize all existing pedestrian walk ways to access the facility. a. The proposed facility is a rooftop mounted facility and thus will not impact any pedestrian or vehicle circulation. b. The facility will be secured from the general public but will be accessible by emergency equipment. The proposed Nextel Facility will not impact access roads. c. All electrical and telephone easements are from the existing point of presence and will be illustrated on the Nextel Construction Drawings when registered with the City of Aspen Building Department. Access easement will be labeled as well. The proposed Nextel Facility meets and complies will all requirements of the Review Standards for Wireless Telecommunications Facilities and Equipment. As stated above, Nextel has designed this site to be virtually unnoticeable from the surrounding public. Nextel has gone to great efforts to make this facility consistent and compatible with the surrounding properties so that no additional impact on the public of Aspen is created by this facility. Nextel is hoping to provide a quality service to the people of Aspen and the surrounding communities and with the addition of this proposed site Nextel will be closer to that goal Please feel free to contact me if there is any questions, concerns or additional information that I can provide to assist in the review of the this proposal. I can be reached at any time at (303) 472 -2148. Thank you for you acceptance and review of this development application. Sincerely, - 11 � Justin Ro binso Nextel Colmnunciations. LAND USE APPLICATION PROJECT: Name: OEX a.— \A/vv.-Etas "1 FAUUT'f Location: ( , C FS -R-EC: (Indicate street address, lot & block number, legal description where appropriate) APPLICANT: Name: v S . PM • . ?Alt Address: 2c S. 1AtL),..... e- Sc . Sit ?D A , /\ �, CO 6' iol Phone #: "t a. 9 z S 3` - REPRESENTATIVE: Name: c .044 - -iST J ,a ` • Address: ,STS . S5Ca 1e.. -s'- , (XD foZz fl Phone #: 2.53z, 4 _ - 20t9 TYPE OF APPLICATION: (please check all that apply): ❑ Conditional Use p Conceptual PUD ❑ Conceptual Historic Devt. o Special Review ❑ Final PUD (& PUD Amendment) ❑ Final Historic Development ❑ Design Review Appeal ❑ Conceptual SPA ❑ Minor Historic Devt. ❑ GMQS Allotment ❑ Final SPA (& SPA Amendment) ❑ Historic Demolition ❑ GMQS Exemption ❑ Subdivision p Historic Designation o ESA - 8040 Greenline, Stream ❑ Subdivision Exemption (includes ❑ Small Lodge Conversion/ Margin, Hallam Lake Bing condominiumization) Expansion Mountain View Plane ❑ Lot Split ❑ Temporary Use ❑ Other: ❑ Lot Line Adjustment ❑ Text/Map Amendment EXIS71NG CONDmONS: (description of existing buildings, uses, previous approvals, etc.) PROPOSAL: (description of proposed buildings, uses, modifications, etc.) Have you attached the following? FEES DUE: $ 2- Pre- Application Conference Summary [ Attachment #1, Signed Fee Agreement 2 Response to Attachment #2, Dimensional Requirements Form a Response to Attachment #3, Minimum Submission Contents []'Response to Attachment #4, Specific Submission Contents • 2 Response to Attachment #5, Review Standards for Your Application /1000 14:59 970 - 920 -4052 ASPEN TITLE CORP. PAGE 03 f ; 4 f r, 3 C O M M I T M E N T Plat id No. SCHEDULE A (continued) Order No. 406588N -C 5. The land referred to in the Commitment is covering the land in the State of Colorado, County of PITKIN , described as follows: Lots K, L, M, N and O. Block 100, City of Aspen, EXCEPT the following portion thereof: A parcel of land being part of Lots K, L and M, Block 100, Aspen, Colorado. Said parcel is more fully described as follows: Beginning at the Northwest corner of said Lot K; thence South 75 °09 East, 62.44 Feet along the North line of Lots K, L and M to the center of a masonry wall; thence South 14 °50'49" West, 32.24 Feet along the center of said wall; thence North 75 °09'11" West, 16.30 Peet along the center of a masonry wall; thence South 14 °50'49" West, 4.16 Feet along the center of said wall; thence North 75 °09'11" West, 46.14 Feet along the center of said wall to a point on the Westerly line of said lot K; thence North 14 °50'49" East, 36.40 Feet to the poinc of beginning. FIRST AMERICAN TITLE INSURANCE COMPANY /2000 14:59 970 - 920 -4052 ASPEN TITLE CORP. PAGE 03 F ' ' j . C O M M I T M E N T Plat id No. SCHEDULE A (continued) Order No. 406588N -C 5. The land referred to in the Commitment is covering the land in the State of Colorado, County of PITKIN described as follows; Lots K, L, M, N and 0, Block 100, City of Aspen, EXCEPT the following portion thereof; A parcel of land being part of Lots K, L and M, Block 100, Aspen, Colorado. Said parcel is more fully described as follows; Beginning at the Northwest corner of said Lot K; thence South 75 °09'11" East, 62.44 Feet along the North line of Lots K, L and M to the center of a masonry wall; thence South 14 °50'49" West, 32.24 Feet along the center of said wall; thence North 75 ° 09'11" West, 16.30 Feet along the center of a masonry wall; thence South 14 ° 50'49" West, 4.16 Feet along the center of said wall; thence North 75 °09'11" West, 46.14 Feet along the center of said wall to a point on the Westerly line or said lot K; thence North 14 ° 50'49" East, 36.40 Feet to the point of beginning. FIRST AMERICAN TITLE INSURANCE COMPANY r� STRUCTURAL CONSULTANTS 3400 East Bayaud Avenue, #300 Denver, CO 80209 INCORPORATED 303/ 399 5154 Fax 303/ 333 9501 October 12, 2000 Mr. Liam O'Farrell, P.E. DYNATEK TELECOMMUNICATIONS SERVICES 6901 S. Yosemite Street, Suite 200 Englewood, CO 80112 Re: 620 E. Cooper, Aspen - Cell Site SCI # 00 -341 05 Dear Liam: The purpose of this letter is to express that our office will review the structural impact of installing new telecommunication equipment on the roof of the building at 620 E. Cooper in Aspen, Colorado. Our scope of services will include analyzing the existing structure from the roof framing down to the foundations for the capacity to support the proposed equipment. We will design and detail supplementary structural framing as required for the installation of the new shelter and antenna mounts. It is our understanding that existing structural drawings will be made available to us for our analysis. At the time of this letter, we have only briefly reviewed the proposed equipment layout. No calculations or analysis has been performed but will be included with the submission of complete Construction Documents. If you have any questions, please contact us at your convenience. Sincerely, STRUCTURAL CONSULTANTS, INC. Reviewed By: 7 29 Patrick J. Farrell, P.E. Lorin I. Lieberman, P.E. PJF/jrm / • 0 / • J , F l .p • � �i 9 i . ' „ slOf� i:.. ,: M I L ' D o Principals Senior Associates Associates Jerry B. Gray, P.E. Bruce R. Wolfe, P.E. till E. Cackowski R. Wayne Muir, P.E. Lorin Lieberman, P.E. Heath C. Stein, P.E. t t 1 PI i ... t `1 s s 4' ,2 4 / i , 1 . (. 1 { d1 MI , , 13 J3v 4 1, . I 4 .1-!..t f.i . igt 4 . , 0 d vSfl MA/ Pails 'aUUO ola 6661 4 Lelall OOZ laa3 OOOL I (Ialua° le) 00S Z L: L aleoS 000Z LE:60 911 PM • 00:S1 BM L-.___ - -. - ' - - - - — '4111 ,111111111116 a .>, \ ,.. CC • c ol a m �� d y 5 * �� ? U 5e3t bM �a O _ � �abNS i 4, r k y O ^ti o ^ ~ za 1N�ln Np N b3 ; r co m 2 O :\ .37b0 2fd OpO p v, tiy,�r a � ` N 1 K I NbW �(y� m 1 �/ . R. j 1 v E IN SNINdo .. a 0 ro Na`dd ONNIGIW z 1 N� �n ' � 2 /j V. ) ON/� 5� Z 8 z b id OH 3 SNfx z )0 � iadooD isrg 0Z9 �b I `' m 2 ;= z� 07 �`y a fL'nbs za�unH 8 G yb�� b y g n �3k'� �p D -15�OD 3 z 3378 _ Ply, H suoueammu iapxa N �'� %, � M _ •bt 2 l aj a 41OS B 4/ ^ t � u S / ONb i A = '� _ j 2 N �aN32i9 t1.1 o o ` r2 0 y Z 1 ` ..;.: -< O J i `Z m cJr117 A 31\ 11S d � -� V ' --� : r s" - --' y3 Aq , S � O, %, i cn lj 0 WS z - 6- ' A s o Q � ad3d H`L�ON M n M, o � "y 7, 31dS31110 M 1 } � }a Nl )13 0 Q OpM a s , 7Kei o� f/ U m I bJ `lei 31,V0 -14.. -14.. -7/ N O3 � o a.mnbs TliunH ` • .3 _„,,,, LAND USE APPLICATION PROJECT: .• Name: 1v VIty -FLOSS Tr1no A FAOU1V Location: (02f • C..R 5C (Indicate street address, lot & block number, legal description where appropriate) APPLICANT: Name: Hu nts FtozA AF s- ctikazs lAcIt PA r sF� Address: Z� S. MiLL�� - 4 it , /\s's 5. Co s (p1 \ Phone #: 10 . �12S. F 3L REPRESENTATIVE: Name: 1J C o u i vl�.rt� aS Address: 42, S U t C , SCe. 1 � C-d 902Z Phone #: ;as .2A TYPE OF APPLICATION: (please check all that apply): • Conditional Use 1 Conceptual PUD 9 Conceptual Historic Devt. 9 Special Review 9 Final PUD (& PUD Amendment) 9 Final Historic Development ▪ Design Review Appeal 0 Conceptual SPA 9 Minor Historic Devt. ▪ GMQS Allotment 0 Final SPA (& SPA Amendment) 0 Historic Demolition 9 GMQS Exemption 9 Subdivision 9 Historic Designation 9 ESA - 8040 Greenline, Stream 9 Subdivision Exemption (includes 0 Small Lodge Conversion/ Margin, Hallam Lake Bluff, condominiumization) Expansion Mountain View Plane 9 Lot Split 9 Temporary Use 0 Other: • Lot Line Adjustment 9 Text/Map Amendment EXISTING CONDITIONS: (description of existing buildings, uses, previous approvals, etc.) PROPOSAL: (description of proposed buildings, uses, modifications, etc.) Have you attached the following? FEES DUE: $ Er Pre- Application Conference Summary ['Attachment #1, Signed Fee Agreement Rt Response to Attachment #2, Dimensional Requirements Form []' Response to Attachment #3, Minimum Submission Contents 3 Response to Attachment #4, Specific Submission Contents • 2 Response to Attachment #5, Review Standards for Your Application STRUCTURAL CONSULTANTS 3400 East Bayaud Avenue, #300 Denver, CO 80209 INCORPORATED 303/399 5154 Fax 303/ 333 9501 October 12, 2000 Mr. Liam O'Farrell, P.E. DYNATEK TELECOMMUNICATIONS SERVICES 6901 S. Yosemite Street, Suite 200 Englewood, CO 80112 • Re: 620 E. Cooper, Aspen - Cell Site SCI # 00 -341 05 Dear Liam: The purpose of this letter is to express that our office will review the structural impact of installing new telecommunication equipment on the roof of the building at 620 E. Cooper in Aspen, Colorado. Our scope of services will include analyzing the existing structure from the roof framing down to the foundations for the capacity to support the proposed equipment. We will design and detail supplementary structural framing as required for the installation of the new shelter and antenna mounts. It is our understanding that existing structural drawings will be made available to us for our analysis. At the time of this letter, we have only briefly reviewed the proposed equipment layout. No calculations or analysis has been performed but will be included with the submission of complete Construction Documents. If you have any questions, please contact us at your convenience. Sincerely, STRUCTURAL CONSULTANTS, INC. Reviewed By: (/""'. Patrick J. Farrell, P.E. Lorin I. Lieberman, P.E. PJF/jrm r C..) 4' • i :- r 3,5; i t • 0 11 • �• tt F • . 8 10(J • (6 L, DD Principab Senior Associates Associates Jerry B. Gray, P.E. Bruce R. Wolfe, P.E. Jill E. Cackowski R. Wayne Muir, P.E. Lorin Lieberman, P.E. Heath C. Stein, P.E. . - ," Nextel Communications 4643 S. Ulster Street, Suite 500, Denver, CO 80237 303 721 -3400 i� EL October 20, 2000 City of Aspen Community Development 130 South Galena Street Aspen, CO 81611 -1975 Re: Nextel Communications proposal to locate a Wireless Telecommunications Facility at 620 E. Cooper. Nextel Site C0451 -C Review Standards To Whom It May Concern: This narrative is intended to act as part of the required application submittal requirements to the City of Aspen to locate a wireless telecommunication facility on behalf of Nextel Communications, ( "Nextel "), a Delaware corporation, at the Hunter Square retail building located at 620 East Cooper, Aspen, CO 81611. Pursuant to the submittal requirements and the development review standards, a written narrative outlining the proposals compliance to the Review Standards for Wireless Telecommunications Facilities and Equipment. Please see below a description of the proposed project as well as an outline of the review standards and Nextel's compliance. Nextel proposes to locate an equipment shelter on the `lower" roof of the Hunter Square complex. Currently this complex houses offices, a restaurant and numerous retail establishments. As depicted by the enclosed site plan and elevation drawings of the building, the placement of the equipment shelter will be largely hidden from pedestrian and automobile traffic from the front vantage point. The equipment shelter is designed to match the current brick of the building and will be visible as an appurtenance from the rear of the building. The photo simulations that are enclosed within this packet depict the location of the equipment shelter. In addition to the equipment shelter Nextel proposes to locate up to twelve (12) panel type antennas on the "upper" mof which will be screened from view by a screen wall facade that Nextel will install. This screen wall will also be designed to match and blend with the existing building materials. The addition of the screen wall will also act to screen the existing HVAC units and other conduit and venting apparatuses that are currently unobstructed. Below is Nextel's justification and compliance with the review standards set forth by the City of Aspen. 1. Setbacks The Nextel Site meets all of the required setback criteria. a. The antennas will be concealed behind "architectural skirting" as required by by the Review Standards. b. Not applicable c. The Nextel facility meets the required 100' separation from all legally established facilities. d. The Nextel facility will not encroach beyond any property lines nor utilize guy wires. 2. Height. The Nextel facility will comply with the 35' height limit with in this zone. a. The antennas will not exceed more than the 5' limit above the highest portion of the roof . b. Not Applicable as the facility and the building meet the require height limit in the zone. c. Not Applicable as the facility and the building meet the require height limit in the zone. d. The corresponding Nextel equipment shelter will be placed on the exterior of the "lower" roof and designed and constructed using the building materials designed to match the buildings exterior. Screening will also conceal all associated conduit and cabling. These proposed screening methods are consistent with the Screening Standards (26.475.130(F)(5)). 3. Architectural Compatibility. The proposed Nextel facility will be consistent and compatible with the existing building and surrounding properties. a. Due to the fact that this is an accessory use, Nextel will use all materials to match the design, texture and color of the existing building. b. As stated above all colors, texture and materials will match the existing building. c. Not applicable as the antennas will be screened on the roof. d. The construction of the associated equipment shelter will be consistent with the building. e. All utilities, cabling and conduit will be screened from view and designed to blend in with the building where applicable. 4. Compatibility with the Natural Environment. The proposed Nextel Facility will not impact the natural surrounding environment. This site is to be located on a building and a tremendous amount of effort will be placed on designing and constructing this proposed facility to be virtually invisible to the public. No existing landscaping, vegetation or view planes will be altered or impacted by the proposed facility. 5. Screening. The proposed facility will be designed to blend in with the existing building. Alle elements of the proposed facility are designed and constructed to either match the existing building or be completely hidden from view. a. Not applicable. b. Not applicable, this site will not require any additional landscaping. c. All cableing, conduit and wiring will be screened to match the existing color of the building. d. Not applicable, no fencing will be used at this proposed facility. e. Nextel is proposing to screen the facility from view of the public by all required means. Nextel will also comply with all reasonable additional conditions or requirements from the Community Development Director or reviewing authority. 6. Lighting and Signage. The Nextel facility will comply with all lighting and signage requirements. a. Any lighting required on the exterior of the equipment shelter will be utilized by access personnel and will not affect the public. b. Not applicable. c. Nextel will not have any signage other than what is mandated by the FCC. d. All emergency contact notification will be visually appairent. 7. Access Way. The proposed Nextel facility will utilize all existing pedestrian walk ways to access the facility. a. The proposed facility is a rooftop mounted facility and thus will not impact any pedestrian or vehicle circulation. b. The facility will be secured from the general public but will be arressible by emergency equipment. The proposed Nextel Facility will not impact access roads. c. All electrical and telephone easements are from the existing point of presence and will be illustrated on the Nextel Construction Drawings when registered with the City of Aspen Building Department. Access easement will be labeled as well. The proposed Nextel Facility meets and complies will all requirements of the Review Standards for Wireless Telecommunications Facilities and Equipment. As stated above, Nextel has designed this site to be virtually unnoticeable from the surrounding public. Nextel has gone to great efforts to make this facility consistent and compatible with the surrounding properties so that no additional impact on the public of Aspen is created by this facility. Nextel is hoping to provide a quality service to the people of Aspen and the surrounding communities and with the addition of this proposed site Nextel will be closer to that goal. Please feel free to contact me if there is any questions, concerns or additional information that I can provide to assist in the review of the this proposaL I can be reached at any time at (303) 472 -2148. Thank you for you acceptance and review of this development application. Sincerely, Justin Rdpinson Nextel COmmt iations. ' � Nextel Communications fi 4643 S. Ulster Street, Suite 500, Denver, CO 80237 303 721 -3400 4k 3f P. g NDCCEL we et t 1 tt 4 Letter of Authorization s Nextel Site It: CO -451C t t Site Name: Aspen Gulch; Hunter Plaza 1 p 1 lit it APPLICATION FOR ZONING /USE PERMIT I, Anthony J. Mazza, Managing Partner for Hunter Plaza Associates, LLP, a Colorado limited r. liability partnership, as owners of the below - described property, do hereby appoint NEXTEL WEST CORP., a Delaware corporation, d/b /a Nextel Communications, my agent for the purpose of consummating any building or use permit applications necessary to ensure Nextel's ability to use the property for the purpose of constructing and operating a communications facility. I understand that this application may be denied, modified or approved with conditions and that 1 such conditions and that such conditions or modifications must be complied with prior to issuance of building permits. 2 s t 1 1 Property address: Hunter Plaza 2. 620 East Cooper St. 1 Aspen, CO81• Assessor's Parcel Number: 2737182 ; 005 Signature of Property Representative: 4i awnm nTo Date: 6 xu/ 6 v a I 0 Authorized Nextel ommunications/Agent Signa 1 4 i 2, 5 8 2 4 1 L 2 AUG -U2 -2000 WED U1 :39 111 hAX NU. r. u[ CITY OF ASPEN PRE - APPLICATION CONFERENCE SUMMARY PLANNER: James Lindt, 920.5104 DATE: 8.2.00 PROJECT: Nextcl Telecom Facility REPRESENTATIVE: Justin Robinson OWNER: TYPE OF APPLICATION: One Step - Wireless Telecommunication DESCRIPTION: Installation of telecommunioation facility on TL.Cooper Ave. Land Use Code Sections) 26.675.130 Wireless Telecommunication Facilities Review by: Staff for compliance with criteria. If application is not consistent with criteria, conditional use review by the Planning and Zoning Commission is needed (public hearing). Review by Historic Preservation Commission Is required for any location on a historic structure or within a historic district. Public Ifearing: No. Unless appeal of criteria is hoard by Planning and Zoning Commission Referral Agencies: Engineering Planning Fees: Planning Deposit Minor ($480) Referral Agency Fees: Engineering, Minor ($170); Total Deposit: $650 (additional hours are billed at a rate of $195/hour) To apply, submit the following information: 1. Proof of ownership (for parcel on which facility will be located). 2. Signed fee agreement. 3. Applicant's name, address and telephone number in a letter signed by the applicant which states the name, address and telephone number of the representative authorized to act on behalf of the applicant. (The property owner is the applicant. Wireless service may be authorized to represent owner.) 4. Street address and legal description of the parcel on which development is proposed to occur, consisting of a current certificate from a title insurance company, or attorney licensed to practice in the State of Colorado, listing the names of all owners of the property, and all mortgages, judgments, liens, casements, contracts and agreements affecting the parcel, and demonstrating the owner's right to apply for the Development Application. 5. Total deposit for review of the application 6. 3 Copies of the complete application packet and maps. 7. An 8 1/2" by 11" vicinity map locating the parcel within the City of Aspen. 8. Roof plan with proposal facilities. 9. Additional materials as required by thc specific review. Please refer to thc code language for the specific submittal requirements. 10. A written description of the proposal and an explanation In written, graphic, or model form of how the proposed development complies with the review standards relevant to the development application. Please include existing conditions as well as proposed. Disclaimer; The foregoing summary is advisory in nature only and is not binding oldie City. The summary is based on current zoning. which is subject to change in the future, and upon factual representations that may or may not be accurate. The summary does not create a legal or vested right. Nextel Communications 4643 S. Ulster Street, Suite 500, Denver, CO 80237 303 721 -3400 N E,CrIGLE October 20, 2000 City of Aspen Community Development 130 South Galena Street Aspen, CO 81611 -1975 Re: Nextel Communications proposal to locate a Wireless Telecommunications Facility at 620 E. Cooper. Nextel Site C0451 -C Specific Submittal Contents To Whom It May Concern: Enclosed please find the application for Nextel Communications proposal to operate and construct a Wireless Telecommunications Facility on the roof of the Hunter Square building located at 620 E. Cooper. Per Attachment 4 all applicable copies and documents are enclosed in this packet. 1. Site Plan as well as before and after pictures are included 2. Site Survey illustrating relevant location and legal description of the subject property. 3. Landscape Plan. Nextel Communications would like to request that Staff waive this requirement due to the location of the facility entirely on an existing building. 4. Elevation Drawings. Elevation drawings are affixed as page 2 of the full size architectural drawings that are in this packet. 5. Lighting Plan. Nextel Communications would like to request that Staff waive this requirement due to the fact that Nextel will not be adding or increasing the lighting that is currently at the site. 6. Structural Integrity Report. Enclosed is a letter of intent by a licensed structural engineer to verify the structural capability of the roof. Due to the fact that Nextel is not constructing a freestanding pole or tower sub - requirements a -d do not apply. A full set of structural drawings for the Nextel facility will accompany the building permit review process. rw 1 7. FAA and FCC Coordination. The Nextel facility would not be located near the airport nor would it be a stand -alone facility and thus is not required by either agency to submit for compliance. 8. Utilizing an existing Facility. Due to the fact that there are no existing stand- alone telecommunications facilities in the immediate proximity, Nextel has pursued locating on a building as opposed to proposing a new facility upon which to locate. 9. Selection Criteria. Upon discussing this requirement with James Lindt, it was determined that this was not necessary. 10. Pre - Application Discussion. See attached copy of the pre- application report completed by the Aspen Planning Staff. In addition to these Specific Submission Contents for Wireless Telecommunication Facilities I have included, all required items from Attachment 3 "Minimum Submission Contents" and the information requested that was indicated on the Pre - Application Conference Summary. Included are, Proof of Ownership, Copy of the Title, Signed Fee Agreement, Letter of Authorization to represent the property owner in consummating this application and the deposit for the application and review process. Thank you for reviewing the enclosed information, please feel free to call me with any questions, concerns or need for additional information. Sincerely, - c ��, Justin ' obinso Nextel • 'cations c Nextel Communications 4643 S. Ulster Street, Suite 500, Denver, CO 80237 303 721 -3400 N E)CE! October 20, 2000 City of Aspen Community Development 130 South Galena Street Aspen, CO 81611 -1975 Re: Nextel Communications proposal to locate a Wireless Telecommunications Facility at 620 E. Cooper. Nextel Site C0451 -C Compliance with all FCC and FAA Requirements. To Whom It May Concern: This application for a wireless telecommunications facility will comply and with all mandated Federal Communication Commission guidelines with respect to maximum radio frequency and electromagnetic frequency emissions. Nextel has been authorized by the Federal Communications Commission to construct and operate the first multi - purpose enhanced specialized mobile radio system (ESMR) in the United States. As a requirement of Nextel's licenses, Nextel is subject to FCC audits and to date have not been notified of a site in noncompliance. Nextel operates well below that of the maximum standards of both RF and Electromagnetic emissions and will continue with the same at this proposed facility. Sincerely, Justin ' ob n Nextel o s 1 'cations ASPEN/PITHIN COMMUNITY DEVELOPMENT DEPARTMENT Agreement for Payment of City of Aspen Development Application Fees CITY OF ASPEN (hereinafter CITY) and t J c c t a i v J c LoRp., a Taos, cc e ' v -3 (hereinafter APPLICANT) AGREE AS FOLLOWS: 1. APPLICANT has submitted to CITY an application for (hereinafter, THE PROJECT). 2. APPLICANT understands and agrees that City of Aspen Ordinance No. 45 (Series of 1999) establishes a fee structure for Land Use applications and the payment of all processing fees is a condition precedent to a determination of application completeness. 3. APPLICANT and CITY agree that because of the size, nature or scope of the proposed project, it is not possible at this time to ascertain the full extent of the costs involved in processing the application. APPLICANT and CITY further agree that it is in the interest of the parties that APPLICANT make payment of an initial deposit and to thereafter permit additional costs to be billed to APPLICANT on a monthly basis. APPLICANT agrees additional costs may accrue following their hearings and/or approvals. APPLICANT agrees he will be benefited by retaining greater cash liquidity and will make additional payments upon notification by the CITY when they are necessary as costs are incurred. CITY agrees it will be benefited through the greater certainty of recovering its full costs to process APPLICANT'S application. 4. CITY and APPLICANT further agree that it is impracticable for CITY staff to complete processing or present sufficient information to the Planning Commission and/or City Council to enable the Planning Commission and/or City Council to make legally required findings for project consideration, unless current billings are paid in full prior to decision. 5. Therefore, APPLICANT agrees that in consideration of the CITY's waiver of its right to collect full fees prior,tm determination of app icati completeness, APPLICANT shall pay an initial deposit in the amount of $ which is for 4, hours of Community Development staff time, and if actual recorded costs exceed the initial deposit, APPLICANT shall pay additional monthly billings to CITY to reimburse the CITY for the processing of the application mentioned above, including post approval review. Such periodic payments shall be made within 30 days of the billing date. APPLICANT further agrees that failure to pay such accrued costs shall be grounds for suspension of processing, and in no case will building permits be issued until all costs associated with case processing have been paid. CITY OF ASPEN APPLICANT By: By Julie Ann Woods Community Development Director Date: 10y2, 00 Mailing Address: l� et - ak��Wriu %nt3�S 4{4:14 Vt.-e S . SA .SO■ (o Bczal g:\support\forms\agrpayas.doc ATyr 7• Est �Y b4A SAE ."cF �i 12/27/99 Co 4`;1G C O M M I T M E N T SCHEDULE A PROPERTY MANAGEMENT NEXTEL COMMUNICATIONS 4643 S. ULSTER STREET, SUITE 500 DENVER, CO 80237 1. Effective Date: August 23, 2000 at 7:00 AM Order No. 406588N -C JM /la Customer Reference CO -0451C 2. ALTA Owner's Policy Amount: $ Proposed Insured: A BUYER TO BE DETERMINED 3. ALTA Loan Policies Amount: $ Proposed Insured: Proposed Insured: Amount: $ 4. The estate or interest in the land described or referred to in this Commitment and covered herein is: FEE SIMPLE and title thereto is at the effective date hereof vested in: HUNTER PLAZA ASSOCIATES, LLP, a Colorado limited liability partnership issued by: Owner's Premium: $ THE TITLE COMPANY OF THE ROCKIES, INC. Lender's Premium: $ 600 EAST HOPKINS AVENUE #305 Add'l Lender Chg: $ ASPEN CO 81611 Add'l Charges: $ FAX 970- 920 -4052 Tax Certificate: $ PH 970- 920 -4050 DENVER 303 -595 -8463 Endorsement Chg: $ TBD Charges: $ 2,500.00 TOTAL CHARGES: $ 2,500.00 FIRST AMERICAN TITLE INSURANCE COMPANY C O M M I T M E N T Plat id No. SCHEDULE A (continued) Order No. 406588N -C 5. The land referred to in the Commitment is covering the land in the State of Colorado, County of PITKIN , described as follows: Lots K, L, M, N and 0, Block 100, City of Aspen, EXCEPT the following portion thereof: A parcel of land being part of Lots K, L and M, Block 100, Aspen, Colorado. Said parcel is more fully described as follows: Beginning at the Northwest corner of said Lot K; thence South 75 °09'11" East, 62.44 Feet along the North line of Lots K, L and M to the center of a masonry wall; thence South 14 °50'49" West, 32.24 Feet along the center of said wall; thence North 75 °09'11" West, 16.30 Feet along the center of a masonry wall; thence South 14 °50'49" West, 4.16 Feet along the center of said wall; thence North 75 °09'11" West, 46.14 Feet along the center of said wall to a point on the Westerly line of said lot K; thence North 14 °50'49" East, 36.40 Feet to the point of beginning. FIRST AMERICAN TITLE INSURANCE COMPANY C O M M I T M E N T SCHEDULE B Order No. 406588N -C Section 1 REQUIREMENTS THE FOLLOWING ARE THE REQUIREMENTS TO BE COMPLIED WITH: Item (a) Payment to or for the account of the grantors or mortgagors of the full consideration for the estate or interest to be insured. Item (b) Proper instrument(s) creating the estate or interest to be insured must be executed and duly filed for record, to wit: 1. Deed from HUNTER PLAZA ASSOCIATES, LLP to A BUYER TO BE DETERMINED. NOTE: Duly executed real property transfer declaration, executed by either the Grantor or Grantee, to accompany the Deed mentioned above, pursuant to Article 14 of House Bill No. 1288 - CRS 39 -14 -102. 2. Registration Statement from the Secretary of State for HUNTER PLAZA ASSOCIATES, LLP Limited Liability Partnership, and Articles of Association for HUNTER PLAZA ASSOCIATES, LLP , disclosing the names of all Managers of said limited liability partnership and otherwise complying with C.R.S. 7 -60 -144, et seq., and evidencing the existence of said limited liability partnership, must be filed in the office of the Secretary of State for the State of Colorado, but need not be recorded. 3. Evidence satisfactory to the Company or its duly authorized agent either (a) that the "real estate transfer taxes" imposed by Ordinance No. 20 (Series of 1979), and by Ordinance No. 13, (Series of 1990), of the City of Aspen, Colorado have been paid, and that the liens imposed thereby have been fully satisfied, or (b) that Certificates of Exemption have been issued pursuant to the provisions thereof. A CERTIFICATE OF TAXES DUE LISTING EACH TAXING JURISDICTION SHALL BE OBTAINED FROM THE COUNTY TREASURER OR THE COUNTY TREASURER'S AUTHORIZED AGENT PURSUANT TO 1983 C.R.S., 39 -1 -102 (14.5) AT A CHARGE OF $10.00 EACH TO THE CUSTOMER. NOTE: Corporations that do not maintain a permanent place of business in Colorado, and individuals, estates and trusts that do not reside in Colorado may be subject to a Colorado withholding tax on the sale of real property in the amount of $100,000.00 or more. The withholding tax will be the smaller of two percent (2W) of the sales price or the net proceeds from the sale of such real property. The tax will be withheld by the title company and remitted to the Colorado Department of Revenue unless the seller executes an affidavit confirming the exemption of the transfer from this withholding requirement. (Continued) FIRST AMERICAN TITLE INSURANCE COMPANY REQUIREMENTS (continued) Order No. 406588N0 C- NOTE: Effective September 1, 1997, CRS 30 -10 -406 requires that all documents received for recording or filing in the Clerk and Recorder's Office shall contain a top margin of at least one inch and a left, right and bottom margin of at least one -half inch. The Clerk and Recorder may refuse to record or file any document that does not conform. The requirement for the top margin shall not apply to documents using forms on which space is provided for recording or filing information at the top margin of the document. FIRST AMERICAN TITLE INSURANCE COMPANY C O M M I T M E N T SCHEDULE B Section 2 EXCEPTIONS Order No. 406588N - The policy or policies to be issued will contain exceptions to the following matters unless the same are disposed of to the satisfaction of the Company: Any loss or damage, including attorney fees, by reason of the matters shown below: 1. Any facts, rights, interests, or claims which are not shown by the public records but which could be ascertained by an inspection of said land or by making inquiry of persons in possession thereof. 2. Easements or claims of easements, not shown by the public records. 3. Discrepancies, conflicts in boundary lines, shortage in area, encroachments, and any other facts which a correct survey would disclose and which are not shown by the public records. 4. Any lien, or right to a lien for services, labor or material heretofore or hereafter furnished, imposed by law and not shown by the public records. 5. Defects, liens, encumbrances, adverse claims or other matters, if any, created, first appearing in the public records or attaching subsequent to the effective date hereof, but prior to the date the proposed insured acquires of record for value the estate or interest or mortgage thereon covered by this Commitment. 6. Taxes due and payable; and any tax, special assessments, charge or lien imposed for water or sewer service, or for any other special taxing district. 7. Any mine of gold, silver, cinnabar or copper, or any valid mining claim or possession held under existing laws, as reserved by M. G. Miller, County and Probate Judge of Pitkin County, Colorado, in the Deed to P.W. Pratt and 0. D. Sebree recorded January 3, 1888 in Book 59 at Page 236. 8. Any and all rights of the owner of the property immediately adjoining subject property arising from the existence of a party wall partly located on subject property, as described in Agreement recorded April 30, 1987, in Book 534 at Page 851. 9. Restrictions, which do not contain a forfeiture or reverter clause, as contained in instrument recorded April 30, 1987, in Book 534 at Page 851. 10. Terms, agreements, provisions, conditions and obligations as contained in Encroachment Agreement by and between the City of Aspen and Hunter Plaza, recorded May 18, 1987, in Book 536 at Page 812. 11. Any and all leases and tenancies. (Continued) FIRST AMERICAN TITLE INSURANCE COMPANY EXCEPTIONS (continued) Order No. 406588N0 -C 12. Deed of Trust from HUNTER PLAZA ASSOCIATES, LLP to the Public Trustee of PITKIN County for the use of Norwest Bank Minnesota, National Association, to secure $3,000,000.00, dated March 2, 1998, and recorded March 4, 1998, at Reception No. 414160. 13. Security interest under the Uniform Commercial Code affecting subject property, notice of which is given by HUNTER PLAZA ASSOCIATES, LLP, from , debtor(s), to Norwest Bank Minnesota, N. A., secured party, recorded March 4, 1998, at Reception No. 414161. 14. Statement of Change recorded November 22, 1999 at Reception No. 437880 in reference to the above financing statement. 15. Security interest under the Uniform Commercial Code affecting subject property, notice of which is given by Hunter Plaza Associates, LLP, from , debtor(s), to Norwest Bank Minnesota, N. A., secured party, recorded March 4, 1998, at Reception No. 414162. 16. Assignment of Rents recorded March 4, 1998, at Recepton No. 414200, given in connection with the above Deed of Trust. 17. Assignment of the above Deed of Trust to Morgan Stanley Mortgage Capital Inc., recorded April 7, 1998, at Reception No. 415363. 18. Assignment of the above Deed of Trust to Norwest Bank Minnesota, N. A., recorded March 6, 2000, at Reception No. 441148. 19. Assignment of the above Deed of Trust to Lasalle Bank National Association f /k /a Lasalle National Bank, as Trustee for the Holder of Commercial Mortgage Pass - Through Certificates Series 1998 -C1, recorded June 26, 2000, at Reception No. 444557. FIRST AMERICAN TITLE INSURANCE COMPANY _ ---- . 4 . . .. . ..... r . • . . • ....,.. _ . , ' . ' . ,,, , ... _ -, ,,-._ S '4, r- ,..... ..-. ,. g 2 37197)1.7.: 7.' ' - ' -S r :1'1' 1 4`100 11F,71.:At.;:'.., 41 1 itru . 1.4 :;.2 7 . 9 6 2 . -- - --- - -=---- - - - - - -:- --- - -i ,_..... - -- -- -- • (; n il ee& mad, 0, _ . . j . , 6 - z ratte ke---- in the year of our Lord one thousand eight hundred a.. 1 dy N ...._. ...., - .• • • - ,‘ - el evtbetwetn M G Stiller as County and 1 .ohate Judge of the County of P:thin, in the State of Colorado, and successor in office of •W De ane. Courtly and Probate Judge of said Pitkin County, as party of the first part. and .............................. _. ..... . .............. .------- ...... — . p ,,-,- ..... 0 .... - 2.- - 2 - 47C . .c.3 0 ri e- ,,../ • a-r."--e-...- . .... i l :- 1 ; of the C .... 4s l u T niz' vi itk i i d T n ari;I Stat of Colorado patty o l the second part. of P . IAT ;IIERF.AS, Under the provisions of the Act of' Congress, entitled '' An act for the relief of the inhabitants of cities ., 1 I 1 , t t l r ' 7 ' towils nth phbLeHands ” aPPrdvedMarch 2. ISO, J. W. Deane, as County an Le and Probate Judge Colorado, of sa idPitkin t Courty, 1 the aforcsaid. I ; / ',„... ' :: ,m1 ' osms'lc eah i "tot31,13 er IlatenUrie Mr, in the United States Land ce at adm le, o l ora d r h d o, or e and escn d u t h .i c tow- •,, I r"' '- • ke- t: I : nry beiherhide'ntruil for the ievC ral inc Use benefirof theociupants of said towruite according to their respective rights ,,r fr 'i ts e intin. 1;14 the CoMMissioner of the General Land Office of the United States made on the ,gth day of ) . Tirk D. OM, 4pender!, and o'n the 5th dal of May, A. D.10314, bylaid COmmissioner held for cancellation. - l ? ' 4 "; ';,;:i-if:'ANDMIIEREAR.'on'theillth day h H ble Secretary of the Interior of the United States by an order of that d • ' r . ,. 3,, 'r'k.' AND WHEItEAR:the United States of America did, b certain patent . dee d bearing d or M 3, A. Diggs, give, grant and convey uhto .. ',.' .4 t ' heiald J. W. Deane. Count/and Prelate Judge as aforesaid, in trust an aforesaid, and to his successors and assigns in trust as aforrsaid, the salt! tract • 5 f ,s,..,i,„ above d to Irtve'and to hold the same, together with all Inc rights, pdvileges, immunities and appurtenances of whatsoever nature thereunto n ' 'be elm' g - s id . J Deane, County and Probate Judge as aforesaid, in trust as aforesaid, and to his successors and assigns hi trust as aforesaid. ■ 4 ',tit:.14,:s<‘' ,-.../Alt.:71;*Din:VIVI I ' IE N: bY * an act the General Assemby of the State of Colorado, entitled "An not to provide for the disposal of town lots and the 2 -- '711c di -" ° -- f I ' t w s'tes entered upon public lands." approved the 1st day of March, A. D.188, it is provided that when land is entered as aforesaid : i r4 ,0 7`47..t r i&Ftl ee eidss:Il e be ln i °n . signetlbi the County and Probate Judge or his successor in office, under his private seal Ana Wonsan, the . said M G. %Der is . 1 . i Istja,, the of said J. W. Deane 33 County and Probate Judge o i nt in ( r -) taii„4i fa4-Avn s, ilauu it appears that rift./ . 4 , . •( 2 y "7 C.7.e. ,: ri- ..C2 WY)( C,C J$ ' „ 7"-,- „ - . -----c-4-7 I ,.. Ily entitled to lots, blocks and parcels of ground hereinafter described as the rightful occupant thereof, and is entitled to the occupancy ad :pp 'session of each and every of said lotq Weeks and parcels of land. - ' 4 . ! ......, L.FNNilg ....,' NOW. 1 I. M. G. aiiller. County and Probate Judge of Pitkin County, in the State of Colorado, in cOmpliane; with of the i z: Stale or Colorado. and by virtue of the Forms°, and being the successor in office of J. W. Deane, County and Probate Judge aforesaid, and Ms . ., • . , , . ' - . :.4Ca.' ' , 2 1 - • 2 , - „. „ ..,. , ,r,. successor in trust, in consideration of thy : 1/4$ . ..i I/ e '' ' f i . premises and the sum of (e .27 './ 7 ) . I .. : “.•-• '- e.,,. 2 .. (2-e .--,— y /0 - DOLLARS - --,- .. ' . 7 “; ±Y; 1 - , lawful snooty of the United States. to rue in turd Ind by the said4Carty of the second part, the receipt whereof is hereby acknowledged, have granted, i d 4 bargained. sold and conveyed, and by thee pr,....ent.; do grant. bargain, sell and confirm unto the said pirty of the second in .part,' following I 3 :4-3-s described lots. btocAs and parcels of land itt de Iv:'; and being in Aspen tau nsite and City of Aspen, in the County of Pr and State of Colorado f .z,,.- ..i 1 4-..-4 _ -_ i — -- • ." • • - • ' '. - • -.- - - - - - .)-4; ::::-. E• -.4 F: , ..sc" , --•;- , , ( , ....6i) ,. / ,,,: / f __ . , . . ...,...-, o c_."64.7 -...:_-,42.--,_. c ., c —c-a-- A -5.-- . _ _, _ ,. 1 : ict: -:.,1.- .."-Cet.-6 . ,. ,,', .,',.:, , . L. 7 /6_,, ,,.. c 1 _e_. - i ) ) (I J , v 7 i ) -- )...)_.:).•) J..): , I .. E... 1 v k 7,•;:::=,•1- f , ...__ - ,r---. it,- 13 N.. - 1 _. _. 1 4 ir. ‘.. •-• - TO DATE AND TO BOLD the said tont' and premises, tofrtethexcith jig priviles immunittes urtenances Of srhatscsev ri t. r b `,,-,' - -...- - -: thereunto belonging or in an). icc appertain :rig an thc said ( .,_,7 47 Yu • ( ,-. 3 !: „ . - _ . ... . . - :;.-.zi-FA'::::f.:_aci. - Pr. •:‘- I - 4.2....ci. hetrs and asstens forever. --( - - -, . . ..; .. P1101 IDED. 110WEVER that no Lee shall be hereby acquired to any mine of gold siive;:cintiab;rdidOpp1 14111idl claim or t and restnct ons contained in ection •gs ,:z."" ' ".: ..• ,' 1 Possessin, .heitl undeT exictin,.; laws; and provided further that this deed is hereby made and declared be to alltheconiiitiliii, Jim it tit . i S 2386 of the Revised Statutes of the United States, so far as the' P same is a licable the' n t E4 ..........,''' - ' 47 . - . " - :. ' - ''' z. ' . IN WITNINS IVIIEHOP, I, al. G Miller. Counts. and Probate Judge of Pitkin County in the State Colorado - ,Ucceor -- in office 1.#7,..4 micas aforesaid. have hereunto set my band ard affixed my private seal Inc day and year first abovWctritten:sl'e r---- .."a:4 ' .c• ' . • 1 I 1 ... , .. „ . ' • ' ' . f I - ''--,. I' 1 III COUNTY op% prr KIN __ . _, _ - . ./ _ . --. 777 0 - -9 7 ...„4„..1 -- ,-- a- . - -...ta .. - r• :. - %:. - -75sr: i..-' - , ::: ;._. 1 . i ...-::- - ' - - ty , n thc State aforesaid, hereby Certify t id - H,G.„Millfre'penonsliy t Ibr -. ..„ li 1 ' ■I i I ! / , ,t,./ :t.. ". acknowlcdg . \ , ,_. _apemen whose niat he nte;i1 s'ubseribed to the deed(appeared_before me this daY:in "‘ d 7 \.•, - i , n " ' , . ed th tie the sa me his .1 1 (i voluntuy act and dodos Count said deed set h. and Probate Judge or , - i 1 ‘. ,7 , . ones, or t e uses and purposes in font _. „e y , . 1 Wares- .-..1.1,1 , C. ..-._, h . - ..... 2 / Pt ji Loy __ , i 1 r I t it i . , urr.,,,,-,..t.., e■ri.a ' /r1 /. ' 1" / -- ' i i riled for r: ord 00 th, 7 • daY of ' I I: ■ I ' I 1 1 „ in tweicampii - i � - _ -! alre i -s L:. 1451'2 " _ Z , 6 scos534 :.;: 85]. cn F C O On f• . COMMON NALL AGNT IyM- IS AGEE, made a n d entered into thi i day of x ( L ' 1987 by and between MATN J, CER ual, an ISE, an individ- AOBS L. ROpp a ppyp collective) re ferred to as eris/ "), anip NTE R) PL ZA - Y C e / Ko ASSOCIATES, a Colorado partnership (hereinafter and referred d to as II - `� "HPA"), P ( hereinafter referrad to as I. .""" W ITNESSET H: amtn mNh"c..Ml WHEREAS, HPA is the record ' _ A +5c. i real property situate in the County of Pitkin, State of d Colorado, _$ to wit: 14'It: 1 Lots K, L, M, N and 0, in Townsi to of Aspen, EXCEPT the Block Eollowini City and :'i tion thereof: A parcel of land being g per ATA i Lots K, L and M, Block 100, Aspen, Colorado. s :�a 11 Said parcel is more fully described as fol- w,,— ,., U r lows: Beginning at the Northwest corner of 1 said Lot K; thence $ 75 ° 09'11" E, 62.44 feet i along . �3. s • n; ' g the North line of Lots K, L and M to L °. i t: the center of a masonry wall; thence S N L�f y ? 14 ° 50'49" W, 32.24 feet along the center of ` , ii 3 , y 7 said wall; thence N 75 ° 09'11" W. 16.30 feet '4L °+i along the center of a masonry wall; thence S p. a- cr...w- 1 9 ° 50'49" W, 4-16 feet along the center of � ® t u _ said wall; thence N 75 ° 09'11" W, 46.14 feet ,I along the center of said wall to a ..., . ( the Wes Westerly line of said Lot K; thence point on ,.�.. ,, 1 4 ° 50'49" E, 36.40 feet to the point of ?cam . "" beginning, '° "S'� (hereinafter referred to as the "HP4 ?. ?pezty "�. and 4a1:1 WHEREAS, Cerise/Kopp s L and M, PP are the record owners of that part of f ` I �" Lots ex Stock 100, Aspen, Colorado which is described as _ MI the "excepted" portion hereinafter the foregoing description, said `. excepted portion being hereinafter referred to as the "Cerise /Kopp Property "; and zaN 4 • ...EA WHEREAS, both Properties are presently improved with certain ai a building improvements which share a common wall along most of the co9.mnn bo and { "c Y.i WHEREAS, HPA plans to remove the existing improvements on 3 :_ the HPA Property and to construct a new commercial building „„", thereon, and in the process thereof ; °° replace portions of the common wall, said and sIe,. �� along the remainder of the common boundar r'+ ^ 'R MI "h-'+j certain other matters which affect both Properties; aandmPlish (1 ' In c `:9 �,. ',. s z � 4 f .v , t '[` - '•h.' A. ..San:[ - h -- Irz /. • +r . ` awn a - n 1 � -rs rF 4 _ far ,'-',4,7 ; _.. & 52 BOOK 534 WHEREAS, the parties desire by ' certain rights and responsibilities, tass instrument to establish .' as respect to said common wall, and to formalize between I " y with respect to said other matters. I. x'Wede NON, THEREFORE, for and in consideration of the mutual cove- . t and - nants and agreements herein contained and for other good and valuable considerations, the receipt ' 11, I hereby acknowledged, the P sufficiency of which are agree as follows; 1. Common Mall. The plat attached he parties a made a part iiereo by this reference re to as exhibit A and f '. ". width of both the existing (Ae depicts the location and posed now sec tine. „p tje'' to be left in place) and the pro- 'i) ammers stood that the centerline of the rep la cement Sections shall be in .y 2? =, }� being expressly under- ! may the same location as the centerline of the wall sections being rd replaced thereby. The parties mutually agree that, following ! l.'1 completion of construction and for so long he enti g thereafter as the same _ j shall remain in place, ! as depicted on Exhibit A re length and width of said wall - "� the end of the wall) shall be ( party this at Cwa l l westerly and -. subject to all of the terms and e be sub provisions of this A gzee ment. t. 1 =+ .� (a) Each party hereto is and shall be the i 1 _ respective fee simple owner of the a •i land underlying said wall to the centerthereofhe ` ' _ - which is part of said party's Property as above described, thed Centerwneraab owner phereby the wall • • . the other a perpetual, non-exclusive Y ment tf to t .,E the continued existenceuseandnj easement for � . '±' portion of the common lies said the I -. .4 roe rtyl which lies on said I granting party's Property. lew (b) Following �^� tion and for so lon ctheletfte oa Hth's oomsnrwal shall exist in place, thereafter ethespartiesmheretoll shall bear equal responaibili ty for the continuing maintenance and repair thereof to such good order and condition that the structural integrity of the I i improvements on the respective Properties shall be ' : protected, preserved and maintained. Provided, K� . that neither party, without its prior consent and approval, shall be liable to the other for any r costs incurred by such other party for the improvement (as distinguished from the necessary maintenance or repair) of the common wall. (c) In the event of damage or destruction of all or a portion of the common wall by fire or 4 R - . _ ref t . -.._ '+ee . .- j • ..o..... • • �' - \ �� ^ y _ T k . .' .- f>`�Y ±7, + — "e:Q av o- s:31t534 ;:;;853 - other independent cause, the same sh be promptly repaired or J. specifications and the to its prior y equally by the e expense thereof shared parties hereto. If such damage or _ ' .a destruction is caused hereto, one of the parties x. �; for reconstructing or shall repairingothe r wall n to bits ty 4'. prior specifications. J (d) The common wall shall always be built aut of brick, concrete or concrete block, in a f substantial and workmanlike manner, and shall con- form in all respects to the laws relating to con- I strueti on, restore tic^ oz re alt i i A 1 force at the time in the City of Aspen, Colos in -)- nmlfrthe. Any repair, maintenance or reconstruction of the same shall be done so as to cause the least possi- L 1 ble inconvenience to both of the parties. - f (e) If at any time in future either party n is' shall elect to erect on its Property a building constructed in whole or in part of steel or other y metal, such party may, for - 'qe c place structural s reel or o that purpose, insert or mon wall, provided that by doing m so a the n other com- _ i party shall not be deprived of the use of the com- -+ A mon wall for the suport of his the structural integrity of the co mmon n wall n shall t } AK , not be impaired thereby and that no part of such - 1 steel or metal shall extend beyond the centerline f of the wall. - T, i 2 . Pooting As depicted on Exhibit A, HPA's ` i I j existing and proposed subsurface footings attached approximately 12 inches from the center of the common wall into theCerise /Koet pp Property. Cerise /Kopp hereby grant and convey unto HPA a per �y O ual, non - exclusive easemen:. ft ti,e installation, use, mainte- nance and replacement of said footings to the full extent that t`a' im. Til '� they encroach upon the Cerise /Kopp Property, which easement shall be fully valid and effective for so long as said footings or any na functional part thereof remain in place. 3• Authorization- Tolerances. Cerise /Kopp hereby author- ire HPA to accom ment 1 plish the I a replace and /or installation of por- wall and the installation of new footings 'y'• [ions of the common j e adjacent thereto in the locations depicted on attached Exhibit A, i provided that such work shall be 1 '' applicable codes and at HPA's sole cost m and r expense. HPA with commits and agrees that the common wall and construction nstruction .. I (such that the adjacent portion i f a�'� I shall be substantially completed `' � Gr ' e.% A - `. is �"'r .. ♦ �:3 :: = 1 so, +534 I :a 854 _ i of the building on the Cerise /Kopp Property can again be occupied for business purposes) on or before July 1, 1987, and that Ozzies —, � Shoes, Inc. shall be and is hereby declared a third party benefi- .1-. ciary of this completion I 1 such pletion date covenant. Following completion of f 'r* ± construction, HPA shall have the exact locations of the � entire common wall and footings surveyed, and shall deliver a , ` -'l that all of the v terms and The part h is i Agreemen elshail ee _ remain fully -- t binding and effective so long as such survey does : I not show the common wall and /or footings to encroach into either party's Property more than 1 inch beyond Cho encroachments - depicted on attached Exhibit A. Provided, that if such survey shows the actual encroachment(s) to be more Or less than one- - ' . qu arter inch from the locations the iotions depicted on attached Exhibit P, 1 the parties shall be obligated to execute and record an amendment to said Exhibit A which reflects the surveyed locations of the new wall and/or footings. _ - <. Cetiae /ROOp Roof. Fo 110win of the new ec g completion of construction comm wall stions as above set forth, HPA hereby agrees that at all points that the roof of the building on the Cerise /Kopp Property abuts the common wall (both new and existing ' I sections), HPA will join the edge of said roof to the common wall I with flashing so as to provide a weathertight seal. HPA also commits and agrees that the roof of the new building being con- I ±m structed on its Property will not drain onto the roof of the building on the Cerise /Kopp Property. e Cerise /Rppp Stt t 1 1 t H it During construction ' 1 4 Its OE the new 1 I heps5 cn r. integrit HPA shall heabl add hereby to preserve the structural integrity of the building on h egrees { Cerise /Kopp Property and to take adequate measures to protect the interior of the Cerise /KO Y - ^. 4 during such construction d. promises against water damage + a i perod. S 6 . MPA to Cap Se L i n e . During construction of the new - building on its Proper +.y, : shall and hereby agrees to cap per- manently and to discontinue use of the existing sewer line which serves the bathrooms in the Palazzi Texaco Station. Said cap shall be located within HPA's Property, and shall be performed at f HPA's sole cost and expense. j . 11 i IL 7. Sin le Water Ta ; Se arate Meters. During ' 1 ing completion of construction o the new ui a lding on its EProp- I , erty, HPA shall and hereby agrees to preserve s up to HPA's water tap onto the City water system r in a Coopers hook- Street. HPA further agrees to suchi he and water meter for Cerise/Kopp install a PA separate s sole / pp on such hook -up, alll l at ter, l -TJ - . j cost and expense. Following installation of this meter, 1 charges shall be solely responsible for the payment of water • I 9 g eed t hereon. i ( 1 I -4- 1. l ' E .N - �'' s w -- :..+ ~ ,.. 4 .4 �..'. _ . �� .r - _ p W a s ecoK534 ,.,:855 8. HPA to Remove Eneroachin Gan = i struction of the new u1 in E ut sent. During don - hereby agrees to remove a on att toomovty, fpo shall and - ' _ Cerise /KO (or at least to move off of the Pp Property) the large gas meter from the alley behind ;' the Cerise /Kopp Property and all associated gas lines and equip- sent which presently sys p resently serve the HPA Property and which encroach on the Cerise /Kopp Property, all at HPA's sole cost and expense. k 9. Termination of Prior A regiment. The parties mutually understand an.. agree that zrom ana atter the recording hereof in I the Pitkin County real property r re - - j Agreement recorded April 13, 1983 in Book 1 443 at rtnge 32 Party Wall ce said i tezminatedaleanee force j ever. effect nor effee._ whatso- ([p 1 10. Covenants Run with the Land- Bindin Effect. All of 1 the terms , pzovisrons, agreemen an and/or established herein shall be deemed t construed z to t he ..� covenants running with the land, y the title to the respective Properties l the constitute parties t a burden on 9 extent set forth herein, and shall be binding upon and inure to _ '�i the benefit of the parties hereto and their respective heirs, >. p ersonal representatives, successors and assigns forever. ` .: . IN WITNESS hands WHEREOF, the patties have hereunto set their r ,-t w and seals as of of the the day and year first above written. f y . tun J. .:L. gYK i vi / 4 ? _ wy Robert L. Kopp s Company, '3+vg a partnership . � ` k 1 Ro.ezt L. Kopp, b • • y ,• p p, Gene a 1 � : Partner Hunte Plaza Associates, a �; ) . oza.,L viership B : �1� ne —agang I An Ge ` / jqa, ;r u i ; 7 T : s 1-4.7,.1:;: J x - K Yy . . _ Y IP 7...> m,, ; : J AI` 4 2 — VT uT.�ISE , ' i . i _ ,q. . N S : EVA 534 &5E a,. ...........:. • STATE OF - G � COUNTY OF j aa' � t1 0 ' 4 r i - b 317 ..• ilik E N , T foregoing instrument was acknowledged before me th s d x .Q • - day of (E�;i� 1987, by !I �� po_, �t v nd a Myornn Man J. Cn.n.L.A.a `. Witness my hand aand vial se My commission expires: 10.25.88 • No, A r CI.. P bl ° 0O c o STATE OF WLotko ) COUNTY OF , - /%1A) 1 ss. ^ A 'I1 The foregoing instrument was acknowledged before me this a &Rday of FiPtP_Cr , 1987, by Robert L. Kopp as a General aronc4pAm.Robert L. Kopp & Company, a partnership. "T a.. o'I//QIsness_my hand and official seal. 1 i P � pll c OO , ssion expires: dua le N ..7 if O e tee . No y pu lb .c fli . s i i a :. i _ t. .4"7+ _.. _. .. , '•F • • t `�•L I - - — birirl ! r..°„� - i . gym — y , .., ^ x = _Mit `k "' : , ;, : ?kw a Co<534 r4.851 ........4 STATE OF COLORADO ) i', ) —�, ) ss. 7 COUNTY OF PITRIN ) A The forego' g ipstrumcnt was acknowledged before me this t ' i day of 1987, zza plaza Asso ciates Ma , Y by Anthony y a s t CC^� F } Managing General artner intHUnter '� _I _I partnership. z Colora do � . Nitnocc my hand and official seal. ,r 00 ..... ? ....to i. ^ i My commission expires: 03 419/89 i B11 0 ? t ; Notar of.1 '• - ` `a s amer 1 4 1 IL I . 4 �i d 1 R� +3 i_ 1 r:. j 7 r . 5Cos534 ;: 85? a , /h/ .e. > OZZIE'S %: rrel Mal car-var./ •. Penr...a a1 'BAR. a w.MIa '...AM DR p . -i cd+�, :FdE 1 I NLV WALL Abve: fir I� II • i —� y 1171 .t .tun eats. seer t N n Sire w oyster Li..., N N ' 413 I 1 N k c 1 1 � m 1 t > 2 I - e UI r it 710. .. 1 ]j I I as P a IL '^n'�.+vc ti r •-! ! LL A I i a I- ® ' 4 di r it (.J [1? i i NEW FOOTWeit: 1 I kt [ '' i N EW WALLS: ?Flit ; t — O i I wP.`, e.. mot r� - L F a I 1 b I r I f 541 • WFT ,+_'d.....• , '4 .r - ?a... _?, ;.i..i _.daC'i k,k.4.j -...... „.— ,.. . JiatA -- u — i7w ' , �4":" _ — .kit - .. ..a -+mr� =+rte'. II _ ROOK 536 vacE812 m C « w s Y 9 8 o co a rn i ENCROACHMENT AGREEMENT ee p� .z Thies Ogren e M made ana Ilb, __d Into .h +c 11th V .. ' II _ 19 87, n b y and between the CITY OF ASPEN, F itkin County, .z _ _142:9:-.--_, Colorado, hereinafter referred to as 'Aspen' and = r Hunter Plaza - _i _ e h2rein ter [ePe[red to as 'Licensee.' -'"e' - C WHEREAS, Licensee is the owner of the following described t property located in the Cit of Aspen, Y pen, Pi tkin County, Colorado: 602 E. Cooper Ave. :v City of Aspen, PStkln County, Colorado - - .- WHEREAS, said ` _, right-of -way(s): pro abuts the following described public : „� Hunter Street, Cooper Avenue, t - ,. 3 and the alley of Block 100 way (sl =2 7 9 WHEREAS, Licensee desires to encroach upon said right -of - with awnings that extend 5' and an 8" subaraan footing. - r J I . i e W HEREAS, Aspen agrees to the grant of a private license of encroachment as built subject to certain conditions. S THEREFORE, in consideration of the mutual agreement herein- E'',ig ig after contained, Aspen and Licensee covenant and agree as �' aft .fi follows: 1. A private revocable license is hereby to occupy, maintain and ucilazc tie above described to Licensee M - r public right -of -way for the sole purpose described. With portion of to the license for the B• foundation, s said license as granted " will not be unreasonably revoked. �` 2. This license is granted for a perpetual term subject to being terminated at any time and for any reason at the sole 2 discretion of the City Council of the City of Aspen. v a 3. This license shall be subordinate to the right of Aspen �_. to use said area for any public purposes. I 8 S.' 4. Licensee is rea the public right -of-wa , tog le for the maintenance and repair of ! -_i therein, which Aspen, y in the exercise of p its discretion, shall s•,. determine to be necessary to keep the same in a safe and clean Ste• condition. i t nryy� m _ . i . -al vim ' ; . ,,.t'. fis _,v J., 'fir Y'C.Y.1 .. .b. • • is : t `S T,� , Lti BOOK 536 vase8l3 _ • 5. Licensee shall at all times during the term hereof, carry r public liability insurance for the benefit of the City with mot • • limits of nut less than those anon,e,.a w.' Caction C.R.s., as may be amended from time to time, naming the + City gas at co-insured. Licensee shall maintain said coverage in furl force and effect during the term of this License and shall furnish the City with - (' ._ Licensee .._ = such coverage. °• . such coverage maintained a certificate to r i ncing ;j pursuant this agreement shall contain th policies follo wingendorsement: suant to +a= 'It is hereby understood and agreed that this insurance '� policy may not be cancelled by the surety until thirty (30) "� days after receipt by the City, by registered mail, of a - i � written notice of such intention to cancel or not to renew.' .s - 6. Licensee shall save, defend and hold harmless against any g�K - and all claims for damages, costs and expenses, to i3_� property that may arise out of, or be occasioned by the use, i occupancy and maintenance of said pe °sons or , j any act or omission of any representative, agent, customer and /or ram employee of Licensee. 7. This license may be terminated by �L`� and for any reason on thirty (30) days Y to c ensee at any .1 time Sp e n notice sae's intent to cancel. This license may be te-minatedVby Aspen �. i at any time and for any reason by resolution dun locos City Council of the City of Aspen. U Y passed by the :4� ._ shall, at Licensee's expense, remove any improvements L or croachments from said property. The property shall be restored to a condition satisfactory to Aspen. _.. 8. This license is subject to all state laws, the 9 F j of the Charter of the City of Aspen Y NIIN fillr Y f ti i hereafter be amended, and the ordinances eg of f now exists the City of A of Aspen may en now ice, • 1. in effect or those which may hereafter en fter be adopted. i 9. Nothing herein shall be construed so as to from on the granted license of _ from granting such additional licenses or prevent Aspen r or affecting said property as it deems necessarpy.rty. interests in ` ' d ' -0. The conditions hereof imposed "_ I encroachment shall constitute and binding upon Licensee, th eir c heirs, 1t successo s and assigns. s Agreement i the any legal action to enforce the provisions of this able attorney's prevailing party shall be entitled to its reason - Y' fees. 12. If the structure for which this license was issued is removed for any resn, Licensee may not rebuild in the same y ' "1 "n withoui obtaining another encroachment license. � 1 _« . :I-1 - v - a L f • • Lj: ^ci.:a °i . ' b .baf].iA ....nr ictiiFdC.. --a wien"'4 3•wAa " •r 4 f .-4' . _ 1 :-:,71 _ ,:r,7-:- ...m.;--.; - zr - fitat,.;-as.-r--_?-___------“,-..i.: Aares J---- - sqi _ - — i N 1....1.; ,...,, -.7 , . a '' --• -..."2a.: `•.-. — - ): rt 7. - --- ChQs, , -- - ----; . --. 4 , - - . 74, - 2 ::A:kciy-r.?".gain-N - Sn' t .-r• • e rfli .."' s ., .1 fi '• . ..,4 ' 7: : '... ;:i.n -a:- [ ••• 0-• .--=',"1:13.-A”.-- roes BOON ilOO PAGE814 IN Aspen the WITN day ESS WHEREOF,the parties executed this agreement at .t'Irtit ...ate itc.- :.... ... :. i ....... - .. and year first written. CITY OF ASPEN, COLORADO kA - -7 ' - B Ira I z.....tzgr. -. f , I ...-:-= 4 . —,-. _AT .../ t , I i . G ./ ,..- i ' q KATHRYN S; ROCS, City Clerk ' I -ra- = ; ,i. • :z., -I - I --.' • - I. 1 - 1 1 Ill 1E . . .7-- d - - vie Licensee '...1 1 , \ STATE OF COLORADO ) ss. County of Pitkin 3 ttk ..' • i //Ohe fzegoing insttument was acknowledged benne me this . 4.-• 2_, :)y Cht.t. i _____( +15 L.Lp_ wIr A4g- Licensee. WITNESS NY HAND AND OPF/C/AL SrAL. • a 7 :7 J:7 I t . . „zz ia i Notary (public • ' i rj Address - .. r-z..-- :i :.-il .._ , - a';* • e• ' . - ......._ - - -. . --- -: -C-R.-75D ..,...RME... .....=t-' I' •F t , • ... ...e.i.... 4 • :1, - '..., - r^ a • ^"•1/4. • ,,,,i 4 p v t - t t:',.- t.' : i - .. LI::::!::9;tvt.S•42,1:-Aztt..;;34Asott.t.--...iittits fr, ...1....C...1:-. f. • " . • ._ _ • DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FINANCING STATEMENT This Deed of Taut (the 'Deed of Trust') is made as of this a day of March, 1998, by HUNTER PLAZA ASSOCIATES, LLP, a Colorado limited liability partnership, having its principal place of business at 205 South Mill Street, Suite 301A, Aspen, Colorado 81611 (herein called the "Grantor "), to the Public Trustee of Pitkin County, Colorado ("Trustee ") for the use and benefit of NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a national banking association, having its principal place of business at Sixth Street and Marquette Avenue, Minneapolis, Minnesota 55479-0089, its successors and assigns (herein called the "Beneficiary"). RECITALS A. The Beneficiary has made a loan to the Grantor on the date hereof in the principal amount ti of 53,000,000 (the 'Loan'). 7 cis B. The Loan is evidenced by the Grantor's promissory note hereinafter described. U C. M a condition to making the Loan, the Beneficiary has required the execution and Ci delivery hereof and of an Assignment of Rents and Leases of even date herewith (as the same may hereafter be amended or supplemented from time to time, the "Assignment of Rents'), assigning to the Beneficiary all of the Grantors interest in the Rents and Leases (as defined in the Assignment of Rents). NOW, THEREFORE, in consideration of the sum of 43,000,000 to the Grantor in hand paid, and for the purpose of securing (A) the repayment of the indebtedness evidenced by the Grantors promissory note of even date herewith, payable to the order of the Beneficiary in the principal amount of 53,000,000, said principal sum, with interest thereon at the rate therein provided, being finally due and payable on April 1, 2008, and all renewals, extensions and modifications thereof and any note issued in substitution or replacement therefor (the 'Note"); (B) the payment of all other sums with interest thereon as may be advanced by the Beneficiary- in accordance with this Deed of Trust, the Assignment of Rents and any other instruments securing payment of the Note (the indebtedness evidenced by the Note and all such other sums Ire hereinafter collectively referred to as the "Indebtedness'); and (C) the performance of all the covenants and agreements of the Grantor contained in the Assignment of Rents, the Note, this Deed of Trust and any other Loan Document (as hereinafter defined), the Grantor does hereby mortgage, grant, bargain, sell, assign, transfer and convey unto the Trustee. in trust, with power of sale and grants to Beneficiary a security interest in, all the tracts or parcels of land (hereinafter called the 'Land "), located in Pitkin County, Colorado, and described in Exhibit A attached hereto and made a part hereof, together with all of Granter's right, title and interest in and to (i) all of the buildings. structures and other improvements now standing or at any time hereafter constructed or placed upon the Land (the "Improvements "); (ii) all lighting, heating, ventilating, air-conditioning, • 111111 11111111111111111111111111111111111111 IIII 4 1418003/84/111911 11:204 DT DAVIS SILV2 1 of 40R 201.00 D 0.00 N 0,00 ►ITKIN COUNTY CO X j 1 11111 1E1 11111 11111 111 111 111111 110111 1111 414100 03/04/1010 11 :20A DT DAVIS SILVI 2 •1 ae R 201.00 0 0.N N 0.50 PITKIN COUNTY CO sprinkling and plumbing fixtures, water and power systems, engines and machinery, boilers, furnaces, oil burners, elevators and motors, communication systems, dynamos, transformers, electrical equipment, carpets, draperies, blinds and all other fixtures of every description located in or on, or used, or intended to be used in connection with the Land or any of the Improvements (excluding, however, fixtures owned by tenants occupying space in any building now or hereafter located on the Land); (iii) all hereditaments, easements, rights of way, appurtenances, riparian rights, rents, issues, profits, condemnation awards, mineral rights and water rights now or hereafter belonging or in any way pertaining to the Land or to any of the Improvements and all the estates, rights and interests of the Grantor in the Land; (iv) all cash funds, deposit accounts and other rights and evidence of rights of cash, now or hereafter created or held by Beneficiary pursuant to this Deed of Trust or any other of the Loan Documents (as hereinafter defined), including, without Imitation, all monies now or hereafter on deposit in the Tax and Insurance • Escrow Fund and the Replaccnent Escrow Fund (each u hereinafter defined); (v) all contacts and agreements now or hereafter entered into covering any part of the Mortgaged Property (as defined below) (collectively, the "Contracts ") and all revenue, income and other benefits thereof, including, without limitation, management agreements, service contracts, maintenance contracts, equipment leases, personal property leases and any contracts or doarmeats relating to cooshvction on any part of the Land or the Improvements (including plans, drawings,_ surveys, tests, reports, bonds and governmental approvals) or to the management or operation of any part of the Land or the Improvements; (vi) all present and future monetary deposits given to any public or private utility with respect to '.'tility services furnished to any part of the Land or the Improvements; (vii) all present an future funds, accounts, instruments, accounts receivable, documents, causes of action, daims, general intangibles (including, without limitation, trademarks, trade names, service marks and symbols now or hereafter used in connection with any part of the Land or the Improvements, all names by which the Land or the Improvements may be operated or known, all rights to carry an business under such names, and all rights, interests and privileges which Grantor has or may have as developer or declarant under any covenants, restrictions or declarations now or hereafter relating to the Land or the Improvements), all architectural renderings, models, drawings, plans, specifications, studies and data now or hereafter relating to the Land or the Improvements, all notes or chattel paper now or hereafter arising from or by virtue of any transactions related to the Land or the Improvements, and all insurance or binders now or hereafter relating to the Mortgaged Property, including any unearned thereon (collectively, the "General Intangibles"); (viii) all water taps, sewer taps, ceruitntes of occupancy, permits, licenses, franchises, certificates, consents, approvals and other rights and privileges now or hereafter obtained in connection with the Land or the Improvements and all present and future warranties and guaranties relating to the Improvements or to any equipment, fixtures, furniture, furnishings, personal property or components of any of the foregoing now or hereafter located or installed on the Land or in the Improvements; (ix) all building materials, furniture, furnishings, equipment, supplies and al/ other personal property now or hereafter located in, or on, or used or intended to be used in connection with the Land or any of the Improvements and all replacements and additions thereto (excluding personal property owned by tenants occupying space in the Improvements); (x) all additions, accessions, increases, pans, fittings, accessories, replacements, substitutions, betterments, repairs and proceeds to, of or for any and all of the foregoing; and (xi) any and all after- acquired interest of the Grantor in any • 2 1 11111 11111 11111 II 1111 11111111111111111 1 1111IM 1111 414191 07 /134/1910 11:7011 DT DNVI7 SILYI 3 of a0 R 201.91 D 0.00 N 0.00 PITKIN COUNTY CO of the foregoing, including the Land (all of the foregoing, together with the Land and the • Improvements are hereinafter referred to as the 'Mortgaged Property "). To Have and To Hold the Mortgaged Property unto the Trustee, its successors and assigns, forever, provided, nevertheless, that this Deed of Trust is upon the express condition that if the Grantor shall pay to the Beneficiary as and when due and payable the principal of and interest on the Note and all other sums payable under the Note, including without limitation, any prepayment fees required pursuant to the terms of the Note and all other Indebtedness, and shall also keep and perform each and every covenant and agreement of the Grantor herein contained and contained in any other agreements, documents or instruments now or hereafter evidencing, securing or otherwise relating to the indebtedness evidenced by the Note (the Note, this Deed of Trust, the Assignment of Rents, the Etvironmental Liabilities Agreement of even date herewith from Grantor it favor of Beneficiary ( the "Environmental Agreement "), and any other agreements, documents and instruments now or hereafter evidencing, seaming, guarantying or otherwise relating to the indebtedness evidenced by the Note, together with any and all renewals, amendments, extensions and modifications thereof, are herein collectively referred to as the "Loan Documents "), then this Deed of Trust and the estate hereby granted shall cease and be and become void and shall be released of record at the expense of the Grantor, otherwise this Deed of Trust shall be and remain in fulI force and effect. The Grantor represents, warrants and covenants to and with the Beneficiary that: (a) it is lawfully seized of the Land and the Improvements in fee simple and has good right and full power and authority under all applicable provisions of law and under its organizational documents to execute this Deed of Trust and to mortgage the Mortgaged Property; (b) the Mortgaged Property is free from all liens, security interests and encumbrances except as listed in Exhibit B attached hereto; (c) the Grantor will warrant and defend the title to the Mortgaged Property and the lien and priority of this Deed of Trust against all claims and demands of all persons whornsoever, whether now existing or hereafter arising, not listed in Exhibit B; and (d) the Improvements are, or will be located entirely within the boundaries of the Land, except for such minor excoachments as are disclosed on the survey delivered to the Beneficiary, (e) no bankruptcy or insolvency proceedings are pending or contemplated by Grantor or, to the best knowledge of Grantor, against Grantor or by or against any endorser, cosigner or guarantor of the Note; (f) all reports, certificates, affidavits, statements and other data furnished by Grantor to Beneficiary in connection with the Loan are true and correct m all material respects and do not omit to state any fact or circumstance necessary to make the natements contained therein not misleading; (g) the execution, delivery and performance of this Deed of Trust, the Note and all of the other Loan Documents have been duly authorized by all necessary action to be, and are, binding and enforceable against Grantor in accordance with the respective terms thereof and do not contravene, result in a breach of or constitute (upon the giving of notice or the passage of time or both) a default under the organizational documents of Grantor or any contract or agreement of any nature to which Grantor is a party or by which Grantor or any of its property may be bound and do not violate or contravene any law, order, decree, rule or regulation to which Grantor is subject; (h) the Land and the Improvements and the intended use thereof by Grantor comply in all material respects with all applicable restrictive cotenants, zoning ordinances, subdivision and building codes, flood disaster laws, applicable health and environmental laws and regulations and all other ordinances, orders or 3 C (1) . , x 4 .0 •..... hat✓. r �+ .. t L 111111 111 111101 111 hill 11111111111111111 111 as 414100 03/04110011 11 :354 DT DAVIS $ILVt t 4 at 40 R 201.00 D 0.00 N B.00 PITIt1R COUNTY DO p requirements issued by any state, federal or municipal authorities baying or claiming jurisdiction T over the Land or the Improvements; 0) no part of the Mortgaged Property is the subject of any pending, threatened or contemplated proceeding in the nature of condemnation or eminent To domain; (j) there are no judicial, administrative, mediation or arbitration actions, suits or m proceedings pending or threatened against or affecting Grantor, (and, if Grantor is a partnership, or any of its general partners) or the Mortgaged Property which, if adversely determined, would t materially impair either the Mortgaged Property or Grantor's ability to perform the covenants or O obligations required to be performed under the Loan Documents; (k) the Mortgaged Property is m free from delinquent water charges, sewer rents, taxes and assessments; and (1) Grantor possesses all licenses, permits, franchises, patents, copyrights, trademarks and tradenames adequate for the s conduct of its business substantially as now conducted. The Land and Improvements constitute a y separate tax parcel for purposes of ad valorem taxation. The Land and Improvements do not require any rights over, or restrictions against, other property not already in existence in order to comply with any of the aforesaid governmental ordinances, orders or requremans. The u covenants and warranties of this paragraph shall survive foreclosure of this Deed of Trust and C ; shall run with the Lend. c , - y The Grantor further covenants and agrees as follows: t 1. Payment of the Note. The Grantor will duly and punctually pay the principal of A and interest on the Note and all other sums payable under the Note in accordance with the terms t of the Note, and all other Indebtedness, when and as due and payable. The provisions of the Note I- are hereby incorporated by reference into this Deed of Trust as fully as if set forth at length co 4, herein. T. i :. 2. Fund for Taxes. Assessments and insurance. i v, (a) Simultaneously with the execution of this Deed of Trust, the Grantor shall pay to the Beneficiary an initial sum sufficient, when added to the sums described below, m to pay yearly taxes and assessments levied against the Mortgaged Property and the annual et T_ premiums of the insurance required by paragraphs 11(a) and 1 l(b), and the Grantor shall also pay on the day monthly installments of principal and interest are payable under the ;E Note, until the Note is paid in full, a sum equal to one - twelfth of the yearly taxes and _ assessments levied against the Mortgaged Property plus a sum equal to one - twelfth of the annual premiums of the insurance ( "Insurance Premiums') required by puagraphs 11(a) m and 1 1(b), all u estimated init'ally and from time to time by the Beneficiary, to be applied by the Beneficiary to pay said taxes, assessments and insurance premiums (such amounts . being ' •Rer referred to as the "Tax and Insurance Escrow Fund "). The Beneficiary y shall t1, the Tax and Insurance Escrow Fund to pay said taxes, assessments and _� insuranr prenuums prior to the date that penalty attaches for nonpayment or at the time O such insurance premiums are due, so long as the amount of the Tax and Insurance Escrow Z Fund held by the Beneficiary is sufficient at that time to make such payments. The Tax and Insurance Escrow Fund shall not be, nor be deemed to be, trust funds, and the Beneficiary shall have t h e ri ght to hold the Tax and Insurance Escrow Fund in any manner the Beneficiary elects and may commingle the Tax and Insurance Escrow Fund with other 4 J x f 1 11111 1111111 I i l l 111111 1111 11111 111111 111 11111 1111 1111 414100 03/04/1990 11 :36A DT DAVIS SILVI 5 of 40 R 201.00 D 0.00 N 0.00 PITKIN COUNTY CO moneys held by the Beneficiary. No earnings or interest on the Tax and Insurance Escrow Fund shall be payable to the Grantor. (b) Except as otherwise provided by Colorado Revised Statutes, Section 39.1- l19, if the amount of the Tax and Insurance Escrow Fund held by the Beneficiary shall exceed at any time the amount deemed neceasaijr by the Beneficiary to; provide for the payment of taxes and assessments and insurance premiums, such excess shall, at the optson of the Beneficiary, either be promptly repaid to the Grantor or be credited to the Grantor on the next monthly installment of the Tax and Insurance Escrow Fund due. If at any time the amount of the Tax and Insurance Escrow Fund held by the Beneficiary shall be leas than the amount deemed necessary by the Beneficiary to pay taxes, assessments and insurance premiums as they fall due, the Grantor shall promptly pay to the Beneficiary any amount necessary to make up the deficiency upon notice from the Beneficiary to the Grantor requesting payment thereof. t (Intentionally Omitted) 4. Replacement Escrow Fowl. The Grantor shall pay to the Beneficiary concurrently with and in addition to each monthly payment due under the Note and until the Ncte and all other Indebtedness is fully paid, an amount equal to one - twelfth of such amount reasonably estimated by the Beneficiary to be due for replacements and capital repairs required to be made to the Mortgaged Property during each calendar year) (the "Replacement Escrow Fund'). Such amount shall initially be zero. At least thirty (30) days prior to the end of each calendar year, the Grantor shall deliver to the Beneficiary for the Beneficiary's review and approval, a capital expenditure budget (the "Capital Expenditure Budget ") itemizing the replacements and capital repairs which are anticipated to be made to the Mortgaged Property during the next immediately succeeding calendar year . The Beneficiary may, upon notice to the Grantor, adjust the monthly amounts required to be deposited into the Renlacement Escrow Fund to a monthly amount equal to one- twelfth of the total amount specified in each approved Capital Expenditure Budget. So long as no Event of Default has occurred and is continuing, the Beneficiary shall, to the extent funds are available for such purpose in the Replacement Escrow Fund, make disbursements from the Replacement Escrow Fund for (i) items specified in each approved Capital Expenditure Budget on a quarterly basis in increments of no leu than 55,000 upon delivery by the Grantor of the Beneficiary's standard form of draw request accompanied by copies of invoices for the amounts requested and, if required by the Beneficiary, lien waivers and releases from all parties furnishing materials and/or services in connection with the requested payment and (u) reimbursement of all out -of- pocket inspection fees incurred by the Beneficiary. The Beneficiary may require an inspection of the Mortgaged Property prior to making a quarterly disbursement in order to verify completion of replacements and repairs. The Beneficiary reserves the right to make any disbursement from the Replacement Escrow Fund directly to the party thrashing matetiab and/or services. The Replacement Escrow Fund shall be held in an interest bearing account with the Beneficiary in accordance with the provisions of paragraph 20 of this Deed of Trust, and such account shall be in the Beneficiary's name or in the name of any entity servicing the Note for the Beneficiary. The Replacement Escrow Fund shall not constitute a trust fund and may be commingled with other monies h:Id by the Beneficiary . All interest on the Replacement Escrow 5 t Lc CD J L 1111111111111111111111111111111111111111 11111 111 1111 al 41000 07/04/1020 11.7611 OT DAVIS SILVI -c 0 of 4S R 2111.00 0 0.00 N 0.00 flfl(IN COUNTY CO O Fund shall be and become part of such Replacement Escrow Fund and shall be credited to the ✓ Grantor as provided in paragraph 20 hereof. The Replacement Escrow Fund is solely for the protection of Beneficiary and entails no responsibility on Beneficiary's part beyond the payment of To' the costs and expenses described in this paragraph 4 in accordance with the turns hereof and CT beyond the allowing of due credit for the sums actually received. In the event that the amounts on O deposit or available in the Replacement Escrow Fund are inadequate to pay the cost of' the replacements and capital repairs, Grantor shall promptly pay the amount of such deficiency. Upon i r assignment of this Deed of Trust by Beneficiary, any funds in the Replacement Escrow Fund shall dt be turned over to the assignee and any responsibility of Beneficiary, as assignor, with respect 3 thereto shall terminate. Upon full payment of the Indebtedness in accordance with its tern or at :a: such earlier time as Beneficiary may elect, the balance of the Replacement Escrow Fund then in - ear Beneficiary's possession shall be paid ova to Grantor and no other party shall have any right or '+' claim thereto. 41 . u 5. Reserves as Security for Indebtedness. As additional security for the payment and " performance by Grantor of the Indebtedness, Grantor hereby unconditionally and irrevocably c assigns, conveys, pledges, mortgages, transfers, delivers, deposits, sets over and confirms unto '(0 Beneficiary, and hereby grants to Beneficiary a security interest in, (i) the Tax and Insurance t Escrow Fund and the Replacement Escrow Fund (collectively, the "Escrow Funds "), (11) the r . c accounts into which the Escrow Funds have been deposited, (iii) all insurance on said accounts, m. (iv) all accounts, contract rights and general intangibles or other rights and interests pertaining thereto, (v) all sums now or hereafl r therein or represented thereby, (vi) all replacements, N t, substitutions or proceeds thereof, (vii) all instruments and documents now or hereafter evidencing ,e, the Escrow Funds or such accounts, (viii) all powers, options, rights, privileges and immunities c pertaining to the Escrow Funds (including the right to make withdrawals therefrom), and (ix) all proceeds of the foregoing. Grantor hereby authorizes and consents to the accounts into which the co Escrow Funds have been deposited being held in Beneficiary's name or the name of any entity i u servicing the Note for Beneficiary and hereby acknowledges and agrees that Beneficiary, or at •— Beneficiary's election, such servicing agent, shall have exclusive control over said accounts. C ' Grantor hereby assumes all risk of loss with respect to amounts on deposit in the Escrow Funds. c ; Grantor hereby knowingly, voluntarily and intentionally stipulates, acknowledges and agrees that the advancement of the funds from the Escrow Funds as set forth herein is at Grantor's direction i t a is not the exercise by Beneficiary of any right of set -off or other remedy upon a default. = - Grantor hereby waives all right to withdraw funds from the Escrow Funds except as provided for in this Deed of Trust. If an Event of Default shall exist, then Beneficiary may, without notice or t demand on Grantor, at its option: (A) withdraw any or all of the monies (including. without "' limitation, interest) then remaining in the Escrow Funds and apply the same, after deducting all 1 `— costs and expenses of safekeeping, collection and delivery (including, but not limited to, hi reasonable attorneys' fees, costs and expenses) to the Indebtedness in such order of application as u w Beneficiary shall deem appropriate (except that in the case of the Tax and Insurance Escrow O Funds, the Beneficiary may apply the monies in the Tax and insurance Escrow Fund, after Z deducting all of the Beneficiary's costs and expenses of safekeeping, collection and delivery, to pay taxes, assessments and insurance premiums which are then or will thereafter become due or to the Indebtedness in such order of application as Beneficiary shall deem appropriate), and the excess, if any, shall be paid to Grantor, (B) exercise any and all rights and remedies of a secured 4' 6 •' I J . r 1 11111 11111 11111 111111 1111 11111 111111 111 11111 1111 1111 414160 03/04/900 it :36A of DAVIS SILVI 7 of e0 R 201.00 0 0.00 N 0.00 PITNIN COUNTY CO i 5 party under any applicable Uniform Commercial Code, or (C) exercise any other remedies r available at law or in equity. s 6. p of Taxes Assessments and Other Charges. Subject to payments in the 7 manner provided under paragraph 2 hereof and to paragraph 10 relating to contest:, the Grantor 1 shall pay, by making payment in accordance with paragraph 2 hereof, before a penalty might attach for nonpayment thereof, all taxes and assessmans and all other charges ("Taxes and Other Charges ") whatsoever levied upon or assessed or placed against the ?Mortgaged Property, except s that assessments may be paid in installments so tong u no fine or penalty is added to any s installment for the nonpayment thereof. The Grantor shall likewise pay any and all governmental s levies or assessments such as maintenance charges, owner association dues or charges or feu, i levies or charges resulting from covenants, conditions and restrictions affecting the Mortgaged . Property, which are assessed or imposed upon the Mortgaged Property or any part thereof or i become due and payable, and which create, may create or appear to crate a Gen upon the Mortgaged Propeny, or any part thereof. The Grantor shall likewise pay all taxes, assessments • and other charges, levied upon or assessed, placed or made against, or measured by, this Deed of Trust, or the recordation hereof, or the Indebtedness secured hereby. In the event of any r legislative action or judicial decision after the date of this Deed of Trust, imposing upon the Beneficiary the obligation to pay any such taxes, assessments or other charges, or deducting the • amount secured by this Deed of Trust from the value of the Mortgaged Property for the purpose of taxation, or c ranging in any way the laws now in force for the taxation of mortgages, deeds of trust or debts secured thereby, or the manner of the operation of any such taxes so as to affect the interests of the Beneficiary, then, and in such event, the Grantor shall bear and pay the full amount of such taxes, auessments or other charges. Notwithstanding the foregoing provisions of this paragraph 6, if for any reason payment by the Grantor of any such taxes, assessments or other charges would be unlawful, or if the payment thereof would render the indebtedness evidenced by the Note usurious, the Beneficiary may declare the whole sum sec. •ed by this Deed of Trust, with interest thereon, to be immediately due and payable. The Grantor shall promptly furnish to the • Beneficiary all notices received by the Grantor of amounts due under this paragraph and in the i event the Grantor shall make payment directly, the Grantor shall promptly furnish to the Beneficiary receipts evidencing such payments. 7. Payment of Utility Chartres. Subject to paragraph 10 relating to contests, the Grantor shall pay all charges (exclusive of charges which are the obligations of tenants to pay) made by utility companies, whether public or private, for electricity, gas, heat, water, or sewer, furnished or used in connection with the Mortgaged Property or any part thereof, and will, upon written request of the Beneficiary, furnish proper receipts evidencing such payment. 8. Ulu. Subject to paragraph 10 hereof relating to contests, the Grantor shall - not create, incur or suffer to exist any lien, encumbrance or charge on the Mortgaged Property or any part thereof which might or could be held to be equal or prior to the lien of this Deed of Trust, other than the liens set fonh in Exhibit B hereto. The Grantor shall pay, when due, the claims of 1 all persons supplying labor or materials to or in connection with the Mortgaged Property. 1 7 J E 1 1111110111 111111 111111 111111111 11101 111 11111 1111 1111 414110 03/14/1591 11:318 DT DAVIS SILVI 0 of 41 R 201.00 D 0.00 M 0.00 ►lTXIN count CO i. 9. Compliance witb Laws. Subject to paragraph 10 relating to contests, the Grantor shall comply with all present and future statutes, laws, rules, orders, regulations and ordinances affecting the Mortgaged Property, any part thereof or the use thereof and shag comply with all - covenants, conditions, and restrictions applicable to the Grantor which are contained in any . - document constituting a permitted encumbrance as set forth in Exhibit B hereto. i0. Permitted Contests. The Grantor shall not be required to O pay any tax, - assessment or other charge referred to in paragraph 6 hereof, (d) pay any charge referred to in paragraph 7 hereof, (iii) discharge or remove any lien, encumbrance or charge referred to in paragraph a hereof, or (iv) comply with any statute, law, rule, regulation or ordinance referred to in paragraph 9 hereof, so long as the Grantor shall (a) contest, in good faith, the existence, amount or the validity thereof the amount of damages caused thereby or the extent of its liability { therefor, by appropriate proceedings which shall operate during the pendency thereof to prevent I (A) the collection of, or other realization upon the tax, assessment, charge or hen, encurnban e i or charge so contested, (B) the sale, forfeiture or loss of the Mortgaged Property or any part thereof and (C) any interference with the use or occupancy of the Mortgaged Property or any part thereof, and (b) shall give such security to the Beneficiary (or to a court or other third party reasonably acceptable to the Beneficiary) as may be reasonably demanded by the Beneficiary to ensure payment of the amount so contested in the event that the Grantor loses such contest; it being • and agreed that the Grantor shall promptly pay or cause to be paid any amount adjudged by a court of competent jurisdiction to be due, with all interest, costs and penalties thereon, promptly after such judgment becomes final. The Grantor shall give prompt written notice to the Beneficiary of the commencement of any contest referred to in this paragraph 10. i • 11. Insurance. (a) Hazard Invtrance. Grantor, at its sole cost and expense, will keep the Mortgaged Property insured during the entire term of this Deed of Trust for the mutual benefit of Grantor and Beneficiary against loss or damage by fire and against loss or damage by other risks and hazards covered by a standard extended coverage insurance policy and included within the classification "AlI Risks of Physical Loss' including, but not limited to, riot and civil commotion, vandalism, malicious mischief, burglary and theft. Such insurance shall be (1) in an amount equal to the greater of the then MI replacement cost of the Improvements and the fixtures and equipment included in the Mortgaged Property, without deduction for physical depreciation, or the outstanding amount of the Indebtedness, and (ii) with extended coverage in amounts sufficient such that the insurer 1 would not deem Grantor a co-insurer under said policies. The policies of insurance f carried in accordance with this paragraph shall be paid annually in advance and shall . contain the "Replacement Cost Endorsement' with a waiver of depreciation. (b) Other Inettrance. Grantor, at its sole cost and expense, for the mutual beneft of Grantor and Beneficiary, shall also obtain and maintain during the entire term of' this Deed of Trust the following policies of insurance: • i t. 3 S i 11111111111111111111111 1111 1 1111111111111 1111 11111111 414100 02/04/1000 11.354 DT DAVIS SIIVI 1.. 0 .f 40 0 201.04 0 0.04 N 0.00 PITKIN COUNTY CO , (1) Flood insurance if any part of the Mortgaged Property now (or _ subsequently determined to be) is located in an area identified by the Federal • Emergency Management Agency as an area having special flood hazards and in i which flood insurance has been made available under the National Flood Insurance 7 • Act of 1968 (and any amendment or successor act thereto) in an amount at least equal to the outstanding principal amount of the Note or the mndmwn limit of coverage available with respect to the Improvements and the fixtures and equipment included in the Mortgaged Property under said Act, whichever is less. t Grantor hereby agrees to pay Beneficiary all fees and costs incurred by Beneficiary in determining, from time to time, whether the Mortgaged Property is then Iocated within such area, unless the payment of such fees and costs is prohibited by . - applicable law. (ii) including Comprehensive General Liability insurance, g broad form property damage, blanket contractual and person: 1 injuries (including death resulting therefrom) coverages and containing minimum limits per occurrence of 53,000,000 for the Improvements and the Land arising out of any one occurrence. (iii) Rental loss insurance in an amount equal to the aggregate annual - amount of all rents and additional rents payable by all of the tenants under the leases covering or affecting the Mortgaged Property (whether or not such Leases are terminable in the event of a fire or casualty), such rental loss insurance to cover rental losses for a period of at least twelve (12) months after the date of the fire or casualty in question The amount of such rental loss insurance shall be increased from time to time during the term of this Deed of Trust as and when met increases occur under leases previously in place covering or affecting the Mortgaged Property and as a result of new leases covering or affecting the Mortgaged Property, and as renewal leases covering or affecting the Mortgaged Property are .. entered into in accordance with the terms of the Assignment of Rents, to reflect all increased rent and increased additional rent payable by all tenants under such renewal leases and all rent and additional rent payable by all of the tenants under such new leases. (iv) Insurance against loss or damage from (1) leakage of sprinkle systems, and (2) explosion of steam boilers, air conditioning equipment, high pressure piping, machinery and equipment, pressure vessels or similar apparatus now or hereafter installed in the Improvements and including broad form boiler and machinery insurance (without exclusion for explosion) covering all boilers or other pressure vessels, machinery and equipment located in, on, or about the Land and the Improvements. (v) If the Mortgaged Property includes commercial property, worker's , compensation insurance with respect to any employees of Grantor, as required by any governmental authority or legal requirement. 9 z 7. I 11 „i I� 111111111111111 1 6111E III 10 of as R 201.00 0 0.00 N e.ea FISK1N mom co (Ni) Such other insurance as gray from time to time be reasonably required by Beneficiary in order to protect its interests. (c) Policy PTCMS -100.4 All policies of insurance (the "Policies”) required pursuant to paragraphs ll(a) as:, I1(b): (i) shall contain a standard noncontributory mortgagee clause naming Beneficiary as the person to which all payments made by such u shall be maintained throughout the term of this Deed of Trust company shall B paid, is and delivered to Beneficiary, of Trust without cost to Beneficiary, (iii) shall be assigned or desirable (iv) shall contain such provisions u Beneficiary deems reasonably necessary to protect its intere_: including, without limitation, endorsements providing that neither Grantor, Beneficiary nor any other party shall be a co-insurer under said policies and that Beneficiary shall receive at leas thirty (30) days prior written notice or, if the risk is reinsured, at least ninety (90) days prior written notice, of any modification, reduction or cancellation, (v) shall be for a term of not less than one year, (vi) shall be issued by an insurer licensed in the state in which the Mortgaged Property is located, (vii) shall provide 1 . - that Beneficiary may, but shall not be obligated to, make premium payments to prevent any cancellation, endorsement, alteration or reisstance, and such payments shall be t accepted by the insurer to prevent same, (viii) shall be satisfactory in form and substance to Beneficiary and shall be approved by Beneficiary as to amounts, form, risk coverage, deductibles, loss payees and insureds, and (ix) shall provide that all claims shall be allowable on events as they occur. Upon demand therefor, Grantor shall reimburse 1 Beneficiary for all of Beneficiary's (or its services) reasonable costs and expenses incurred in obtaining any or all of said policies or otherwise causing the compliance with the teens and provisions of this paragraph 11, including (without limitation) obtaining updated flood hazard certificates and replacement or any so-called *forced placed" ; insurance coverages. All policies required pursuant to paragraphs 11(a) and 11(b) shall be issued by an insurer with either (a) an investment grade rating or a claims paying ability assigned by one or more credit rating agencies approved by Beneficiary , or (b) a general policy rating of "A" or better by one or more credit rating agencies approved by Beneficiary and a financial class of VIII or better by AM. Best Company, Inc. Grantor shag pay the premiums for such policies as the same become due and paya e. d Not ex r than fifteen (15) days prior to the expiration date of any policy, ic Beneficiary satisfactory evidence of the renewal of such policy. If Grantor receives from any insurer any written notification or threat of any actions or proceedings regarding the r non - compliance or non - conformity of the Mortgaged Property with any insurance i requirements, Grantor shall give prompt notice thereof to Beneficiary. (d) Anignment of Policies. In the event of the entry of a judgment of . - foreclosure, sale of the Mortgaged Property by non - judicial foreclo sale, l the or do v ent of a deed in lieu of foreclosure, Beneficiary hereby is authorized Grantor) to assign any and all policies to the purchaser or transferee thereunder, or to take such other steps as Beneficiary may deem advisable to cause the interest of such transferee or purchaser to be protected by any of the policies without credit or allowance to Grantor 1 I for prepaid premiums thereon. 10 4 I t L . i :1 .,, • r 1 111111 1111 111111 111111 1111 11111 111111 111 111111 111 1111 414100 03/04/199$ 11:30A OT DAVIS SILVI 11 of 40 0 201.00 0 0.00 N 0.00 PITKIN COURT, CO _ _ (e ) , a . ,, . • .r a .f, a a' • ,. -in. if the Mortgaged f • Property or any part thereof shah be damaged or destroyed by fire or other casualty, the Grantor will promptly give written nonce thereof to the insurance cattier and the Beneficiary, and will not adjust any damage or loss in an amount equal to or grata than an amount equal to five percent (5%) of the original principal balance of the Loan unless the Beneficiary shall have joined in such adjustment; but if there has been no adjustment of any such damage or loss within four months front the date of occurrence thereof or if an Event of Default shall exist at the end of such four-month period or at any time thereafter, the Beneficiary may alone make proof of loss, adjust and compromise any claim under the policies and appear in and prosecute any action arising from such policciiesIn i t i therewith, the Grantor does hereby irrevocably authorize, empower coupled with an Beneficiary as attorney -in -fact for the Grantor (which appointment interest) to do any and all of the foregoing in the name and on behalf of the Grantor. All sums paid under any policy (f) Ag on of Insurance Proceeds. . (b vii shall be paid required in paragraphs I1(a), 11(b)(), II(bxiii), 11(b)(iv) and 11 x �) directly to the Beneficiary. If the aggregate cost of restoration or repair of the Mortgaged Property destroyed by the casualty giving rise to such proceeds shall not (in the reasonable judgment of the Beneficiary) exceed an amount equal to twenty-five percent (25%) of the original principal balance of the Loan, the Beneficiary shall, upon the Grantor's request, apply such sums (after first deducting therefrom the Beneficiary's expenses incurred in collecting the same, including reasonable attorneys' fees) to such restoration or repair (the 'Restoration ") upon satisfaction of the following conditions: (i) No Event of Default or event that, but for the passing of time or the giving of notice, or both, would be an Event of Default, shall have occurred and be continuing at the time of such request. (ii) Prior to commencing the Restoration, other than temporary s shall to protect property or prevent interference with business, f have been furnished and shall have approved (A) the plans and specifi ati for for the Restoration; (B) the Grantor's choice of an architect or engineer purpose of supervising the Restoration; (C) a sworn construction statement duly I executed by the Grantor, showing all costs and expenses of any kind insured or estimated to be incurred in completing the Restoration; (D) a copy of each contract let by the Grantor relating to completion of the Restoration; (E) evidence satisfactory to the Beneficiary that all required permits for completion of the Restoration have been obtained. (iii) The Grantor shall deposit with the Beneficiary the difference, if any, between the cost of the Restoration and the amount of the insurance proceeds available for such purpose. I (iv) The Mortgaged Property can, in Beneficiary's judgment, with diligent restoration or repair, be returned to an economic unit not less valuable I1 . i. s: 4 • E I I hill 111111 111111 1111 11111111111 111111111111111 414180 03/04/1988 t1t360 DT DAVIS SILVI 12 of 40 0 201.0E 0 0.00 N 8.00 PITKIN COUNTY Co (including an assessment of the impact of the termination of any leases cc�•cring or affecting the Mortgaged Property due to the casualty) and not less useful than the Mortgaged Property was prior to the casualty within the earlier to occur of (1) six months after receipt of the insurance proceeds by either Grantor or Beneficiary and (11) the stated maturity date of the Note. • (v) The Grantor shall authorize the Beneficiary to disburse such funds • and such proceeds in installments as work progresses and to pay fees and charges of any title insurance company engaged as disbursing agent, including but not limited to fees it comection with title searches as to mechanics' liens arising in connection with the Restoration, fees of any architect or engineer engaged by the Beneficiary to review the plans and specifications for the Restoration and to make periodic inspections of the Restoration, and reasonable attorney's fees incurred by the Beneficiary in connection with the Restoration. (vi) Each request for a draw of such funds shall be limited to the total costs of Restoration actually incurred to the date of such draw request, minus 10'% of such costs for which a draw is requested (or such lesser holdback u the Beneficiary may require), and minus prior disbursements made by the Beneficiary to the Grantor in connection with any previous draw made in connection with the - Restoration. (vii) At the time of submission of any draw request, the Grantor shag submit to the Beneficiary a search prepared by a title insurance company acceptable to the Beneficiary, showing appear ep eery, showin that no mechanic's Liens a err of record with respect to the Mortgaged Property that have not been discharged of record. (viii) To the extent that the cost of completing the Restoration, as , estimated at any time and from time to time by the Beneficiary in good faith, shag exceed the proceeds and funds then held by the Beneficiary for such Restoration. the Grantor shall promptly deposit with the Beneficiary an amount equal to such excess (the "Net Proceeds Deficiency"). The Beneficiary may disburse such deposited sums prior to further disbursement of any insurance proceeds. (ix) The Grantor shall have provided to the Beneficiary such zoning letters, surveys and other documentation as the Beneficiary shall reasonably require to establish that upon completion of the Restoration the Mortgaged Property shall (1) be in compliance with all applicable zoning laws, regulations and ordinances, including, without limitation, parking requirements, and (ii) shall have access to public streets which the Beneficiary shall determine either is identical to or better than the access to the Mortgaged Property which existed prior to the event which necessitated the Restoration. In all other cases, namely, in the event that the aggregate cost of the Restoration would (in the reasonable judgment of the Beneficiary) exceed an amount equal to twenty-five percent (25 %) 12 :H r s I 1111 111111111111 11111 Itill111111111111 • ' 414111 03/14/1111 11 :3M11 DT DAVIS SILTS 13 of NN 2e1.ee 01.11N 1.11P1T1c1N COUNTY CO of the original principal balance of the Loan or the Grantor does not elect to restore o or � to Mortgaged Property pursuant to the above provisions ofd paragraph ( eor o� the Ben meet the requirements of clauses (1) through (9) above, n, any , may, of its discretion and notwithstanding the adequacy of its seauity, either [Hake such proceeds _ available to the Grantor for the Restoration upon the the conditions and s toward reduction of the procedures as the Beneficiary may require, or apply may dd rtw My application of Indebtedness, in such order of application as the Beneficiary Y shell insurance proceeds to the principal of the Note monthly installment payment due under the Note or change the or mount f any web installments. t • (g) Reimhursement of the Beneficiary's Expenses. The Gn=tor shag promptly reimburse the Basefiterry upon demand for all of the Beneficiary's out-of-pocket expenses i incurred in connection with the collection of the insurance proceeds, including but not limited to reasonable attorneys fees, and all such expenses, together with imere!t from the date of disbursement at the Default Interest Rate stated in the Note, shall be additional amounts secured by this Deed of Trust. I 12. anervation and Maintrnance of the Mnfaasted Putman,. The Grantor (1) shall motion excepted; (ii` keep the Improvements in safe and good repair and condition, ordinary fire or shall, upon damage ge to or r destruction of the Mortgaged Properly or any ny pa part thereof by other casualty, restore, repair, replace or rebuild the Mortgaged Property that is damaged or • destroyed to the condition it was in immediately prior to such damage or destruction, unless the . • I Beneficiary shall have elected to apply insurance proceeds to the reduction brae Indebtedness teedu in accordance with paragraph 11(f) above; (h) shall constantly maintain the p - areas of the Mortgaged Property, 6v) shag not commit waste or permit impairment or deterioration of the Mortgaged Property, (v) shall not alter or permit the alteration by any tenant of the design or the structural character of any building now or hereafter erected dand he L nd li hereafter construct additions to existing buildings or additional buildings the h 17(f) shall not prior wrinen consent of the Beneficiary, (vi) except as provided in paragraph remove from the Land any of the fixtures or personal property included in the Mortgaged Property; (vii) shall obtain and maintain in full force and effect, and abide by and satisfy the material terms and conditions of, all material permits, licenses, registrations andtimeto authorizations with or granted by any governmental authorities that may be required from time with respect to the performance of its obligations undo this Deed an private Trust. Ti covenant, _ shall not initiate, join in, acquiesce in, or consent to any change in my y tpri uses which may be made zoning law or other public or private restrictions, limiting or defining of the Mortgaged Property or any part thereo& nor shall Grantor vitiate, join in, or consent to any zoning change or zoning matter affecting the Mortgaged Property. If under applicable zoning provisions the use of all or any portion of the Mortgaged Property is or shall become a nonconforming use, Grantor will not cause or permit such nonconforming use to be discontinued 1 or abandoned without the express written consent of the Beneficiary. Grantor shall not form, cause to be formed, or consent to the formation of, or enter into any agreement with respect to the formation of any municipality, special district special improvement district, local improvement district, quasi - municipal corporation, or other political subdivision of the State_ of Colorado ( "Municipal District") relating to the Mortgaged Property, without the prior written consent of • 13 . i • • 1111111 11111 111111 111111 1111 I 1 111111 III 111111 M 111 • 4141M Oa /04 /SIM 11:3Sa DT Davit SILVT 14 of 40 a 201.00 D 0.00 N 0.00 P ITN IN COUNTY CO Beneficiary. Granor shall promptly provided Beneficiary with v.. — weer of (a) the proposed creation of any Municipal District; or (b) any action in respect to any such Municipal District which may affect the Mortgaged Property, inchtding, without limitation, any proposed service plan or modification of such plan, proposed organization of such district and election in regard to such organization, or the proposed issuance of bonds by such district and the proposed inclusion of the Mortgaged Property in such district. 13. Invention. The Beneficiary, or its agents, shall have the right at all reasonable times, subject to the rights of tenants, to otter upon the Mortgaged Property for the purposes of inspecting the Mortgaged Property or any part thereof. The Beneficiary shall, however, have no duty to make such inspection. 14. prntnctinn of the Beneficiary's Security. Subject to the rights of the Grantor under • paragraph 11 hereof, if the Grantor fails to perform any of the covenants and agreements contained in this Deed of Trust or the other Loan Documents, or if any action or proceeding is 1 commenced which affects the Mortgaged Property or the interest of the Beneficiary therein, or t - the tide therao, then the Beneficiary, at Beneficiary's option, may perform such covenants and aptements, defend against and investigate such action or proceeding, and take such other action as the Beneficiary deems necessary to protect the Beneficiary's interest. The Beneficiary shall be the sole judge of the legality, validity and priority of any claim, lien, encumbrance, tax, assessment, charge or premium paid by it and of the amount necessary to be paid in satisfaction • thereof. The Beneficiary is hereby given the irrevocable power of attorney (which power is - - • coupled with an interest and is irrevocable) to enter upon the Mortgaged Property as the • • Gramoes agent in the Grantor's name to perform any and all covenants and agreements to be ' I performed by the Grantor as herein provided. Any amounts or expenses disbursed or incurred by the Beneficiary pursuant to this paragraph 14, with interest thereon, shall become additional Indebtedness of the Grantor secured by this Deed of Trust. Unless the Grantor and the Beneficiary agree in writing to other terms of repayment, such amounts shall be immediately due and payable, and shall bear interest from the date of disbt:rsaneut at the Default Interest Rate • stated in the Note. The Beneficiary shall, at its option, be abrogated to the lien of any mortgage or other lien discharged in whole or in pan by the Indebtedness or by the Beneficiary under the provisions hereof, and any such subrogation rights shall be additional and cumulative security for this Deed of Trust. Nothing contained in this paragraph 14 shall require the Beneficiary to incur any expense or do any act herauder, and the Beneficiary shall not be liable to the Grantor for any damages or claims arising out of action taken by the Beneficiary pursuant to this paragraph 14. 15. Condemnation. • (a) The Grantor hereby irrevocably assigns to the Beneficiary any award or payment which becomes payable by reason of any taking of the Mortgaged Property, or any par, thereof, whether directly or indirectly or temporarily or permanently, in or by condemnation or other eminent domain proceedings (hereinafter called "Taking "). Forthwith upon receipt by the Grantor -of notice of the institution of any proceeding or negotiations for a Taking, the Grantor shall give notice thereof to the Beneficiary. The Beneficiary may appear in any such proceedings and participate in any such negotiations 14 !r ! a 1IIIIIII111 11111111IIII III tit lilt IIlI I1I111I1111 ` ` _ 4141{S Sa /04 /1HS 11:261 DT DAVIS SILVI ? -P. 1S of 44 R 2111.00 0 0.00 N 5.00 ►ITNIN COIRITY CO and may be represented by counsel. The Grantor, notwithstanding that the Beneficiary may not be a party to any such proceeding, will promptly give to the Beneficiary copies of ?' all notices, pleadings, judgments, determinations and other papers received by the Grantor h; ' therein. The Grantor will not enter into any agreement permitting or consenting to the taking of the Mortgaged Property, or any part thereof: or providing for the conveyance thereof in lieu of condemtaton, with anyone authorized to acquire the same in • condemnation or by eminent domain unless the Beneficiary shall first have consented thereto n writing. - ! (b) In the event that (m the reasonable judgment of the Beneficiary) less than I twenty -five percent (25%) of the Land is subject to any Taking, and if such Land which is the subject to the Taking is located along the perimeter or periphery of the Land and o ■ portion of the Improvements is located thereon, and if such Taking does not materially impair access to the Land and Improvements, then all awards payable as a result of any such Taking shall be paid to the Beneficiary, and thereupon the Beneficiary shall, upon - 1 Grantor's request, apply any Taking award (after first deducting the Beneficiary's expenses 1 incurred in the collection thereof including reasonable attorneys' fees) to the Restoration ) of such Improvements, in the same manner and subject to the tame conditions under j which sums paid under an issuance policies shall be applied to Restoration pursuant to t! ] paragraph 11(f) of this Deed of Trust. (c) In all other cases, namely in the event that (in the reasonable judgment of 1 the Beneficiary) the Grantor does not elect to conduct any Restoration pursuant to , paragraph I5(b) hereof or otherwise fails to met the requirements of paragraph 15(b), then, in any such events, all awards payable as a resift of any such Taking shall be paid to i the Beneficiary, which may, at its option, apply there, after first deducting the Beneficiary's S expenses incurred in the collection thereof, including reasonable attorneys' fees, to payment of the Indebtedness, whether or not due and in such order of application as the Beneficiary may determine, or to the Restoration of the Mortgaged Property, in such manner as the Beneficiary may determine. My application of Taking awards to principal of the Note shag not extend or postpone the due dates of the monthly installments payable under the Note or change the amount of such installments. The Grantor shall promptly reimburse the Beneficiary upon demand for all of the Beneficiary' expenses (including reasonable attorney's fees) incurred in the collection' of awards and their disbursement in accordance with this paragraph, and all such expenses, together with interest from the date of disbursement at the Default Interest Rate stated in the Note shall be additional amounts secured by this Deed of Trust. 16. Bonk and Records' Financial Statements and Other lnfnrrnation. (a) Grantor will keep accurate books and records in accordance with sound accounting principles in which fii0, true and correct entries shall be promptly made with respect to the Mortgaged Property and the operation thereof, and will permit all such books and records (including, without limitation, all contracts, statements, invoices, bills and claims for labor, materials and services supplied for the construction, repair or operation of the Improvements) to be inspected or audited and copies made by Beneficiary and its representatives during normal business hours and at any other :5 - l Y 9M µ I tWI\LLW11111114 \\ E N111 lllfll 111 1111 411t110 03/04/11ff11 1.1:313R 01 DAMS sfLVx 17 of 40 R 201.63 0 f.te N 0.00 1ttKtN COtNTT CO or liability by Beneficiary to Grantor or anyone else with regard to the condition, construction, maintenance or operation of the Mortgaged Property, nor Beneficiary's approval of any certification given to Beneficiary nor relieve Grantor of any of Grantor's obligations. 17. T or Further Encumbrance of the Mortgaged Property. (a) Grantor acknowledges that Beneficiary has examined and relied on the creditworthiness and experience of Grantor in owning and operating properties such as the Mortgaged Property in agreeing to make the Loan secured hereby, and that Beneficiary will continue to rely on Grantor's ownership of the Mortgaged Property as a means of maintaining the value of the Mortgaged Property as security for repayment of the ning Indebtedness. Grantor acknowledges that Beneficiary has a valid interest it main in the the value of the Mortgaged Property so as to ensure that, should Grambr default repayment of the Indebtedness, Beneficiary can recover the Indebtedness by a sale of the Mortgaged Property. Grantor shall not, without the prior written consent of Beneficiary, ed sell, convey, alienate, mortgage, encumber, pledge or otherwise transfe ehMoof�bd Property or arty part thereof, or permit the Mortgaged Property any part sold, conveyed, alienated, mortgaged, encumbered, pledged or otherwise transferred; provided, however, Beneficiary may, in its sole discretion, give such written consent (but shall have no obligation to do so) to a one -time sale, conveyance or other be condiof of t he Mortgaged Property by the original Grantor, and any consent require m upon the satisfaction of such conditions precedent as Beneficiary may equir ( g, without limitation, the conditions precedent set forth in paragraph 1 7(c) below). (b) A sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property or any part thereof within the meaning of this paragraph 17 shall not include transfers made by devise or descent or by operation of law upon the death of a joint tenant, partner or shareholder or otherwise by operation of law in the event of a bankruptcy, but shall be deemed to include (i) an installment ent sales agreement s wherein Grantor agrees to sell the Mortgaged Property any part thereof e part price m the be paid in installments; (ii) an agreement by Grantor leasing or t substantial Mortgaged Property for other than actual occupancy by a space tenant thereunder or a sale, assignment or other transfer of, or the grant of a security interest in, Grantor's right, title and interest in and to any leases covering or affecting the Mortgaged Property or any rents arising therefrom; (iii) if Grantor, any Principal (defined below) or any general partner of Grantor or any Principal is a corporation, any merger, consolidation or the voluntary or involuntary sale, conveyance or transfer of such corporation's stock (or the stock of any corporation directly or indirectly controlling such corporation by operation of law or otherwise) or the creation or issuance of new stock in one or a series of transactions by which an aggregate of more than 10% of such corporation's owever, stock in sha a be vested in a party or parties who are not now stockholders (p shall this subpart (iii) apply to any Principal whose stock or shares are traded on a nationally recognized stock exchange); (iv) if Grantor, any Principal, or any general partner of Grantor or any Principal is a limited liability company or limited artnero p, the • voluntary or involuntary sale, conveyance or transfer by which an aggregate 17 • 4 1 W\ iii\ u\ni ii 1iii hil 11* 1 1 111 tai im IS of 40 R 201.00 D 0.00 N 9.00 PIT IN CWNTY co reasonable times. Grantor represents that its chief executive office is as set forth in the introductory paragraph of this Deed of Trust and that all books and records pertaining to the Mortgaged Property are maintained at such location. Grantor will famish, or cause to be the furnished, to Beneficiary within thirty (30) days of the end of each calendar month within , the Loan has become part of a pool of loans as contemplated by Paragraph 36(c) the five (45) days after March 31, June 30, Septernber 30 and Ddecem correct; a, f Witt �a ar yea r) ant following items, each certified by Gramm as being 0a roll) dated u of the last day of each such calendar month (or, if and when na pp applicable, suc c calendar quarter) identifying each of the leases covering or affecting the the tarn, space occupied, rental required to be paid, security deposit paid, any rental cone sswhen and identifying any defaults or payment delinquencies thereunder, (b) monthly (or, if' and applicable quarterly) and year to date operating statements prepared for each calendar r month if and when applicable, each calendar quarter) during each such reporting period; sheet for each such reporting period; and (d) a comparison of the budgeted income and expenses and the actual income and expenses for each reporting period and year to date, together t� detailed explanation of any variances between budgeted and actual amounts that are greater (i) 52,000, or (ii) five percent (5%) or more for each line item therein. Within ninety (0)adayl following the end of each calendar year, Grantor shall furnish to Beneficiary statements, including a balance sheet and an income statement, for the Grantor for such ca nts year. Grantor shall deliver to Beneficiary copies of all income tax retu, requests and other similar items within thirty (30) days after its delivery Grantor se a8 the In to BaKven Service. CM or before November 30 of each calendar year, deliver to Ben of tr the Capital Expenditure Budget (defined in paragraph 4), an itemized operating xt Mortgaged Property and a management plan for a Mortgaged Prro for ne shall pay _ elate e cal year, each in such detail as Beneficiary may charge equal to two percent (2%) of the monthly payment amount for each late submission of financial reports. Failure to provide quarterly or annual reports shall constitute an Event of Default under paragraph 22. At any time and from time to time Grantor shall deliver to Beneficiary or its agents such other financial data u Grantor prepares for i�teF use and Beneficiary or its agents shat request with respect to the ownership, operation of the Mortgaged Property, including, but not limited to, schedules �gross i sales for percentage rents under leases covering or affecting the Mortgaged Property pe representatives appointed by Beneficiary, including independent accountants, agents, attorneys, appraisers and any other persons, to visit and inspect during its normal business hours and at any to other reasonable times any of the Mortgaged Property and to make photographs thereof, a dato write down and record any information such representatives obtain, the d shall per i f B eished ry or its representatives to investigate and verify the accuracy of Beneficiary under or in connection with this Deed of Trust or any of the other Loan Documents and to discuss all such matters with its officers, employees and representatives. Grantor will furnish to Beneficiary at Grantors expense all evidence which Beneficiary may from time to time reasonably request as to the accuracy and validity of or compliance with all representations and warranties made by Grantor in the Loan Documents and satisfaction of all conditions contained therein. Any inspection or audit of the Mortgaged Property or the books and records of Grantor, or the procuring of documents and financial and other information, by or on behalf of Beneficiary, shall be for Beneficiary's protection only, and shall not constitute any assumption of responsibility 16 1111111 I I I I 1 11 1 1E111111111Ili 111I N 11111111111 Sa err 40 R 201.30 D 0.00 N •.00 DAVIS S S ILM COUNTY CO fifty percent (50%) of the ownership interest in such limited liability company or more than fifty percent (50%) of the limited partnership interests in such limited partnership shall be vested in parties not having an ownership interest as of the date of this Deed of Trust; and (v) if Grantor, any Principal or any general partner of Grantor or any Principal is a limited or general partnership or joint venture, the change, removal or resignation of a general partner, managing partner or joint venturer or the transfer of all or any portion of the partnership interest of any general partner, managing partner or joint venturer. For purposes of this Deed of 'Dust, the term "Principal" mean Anthony 3. Mazza. (c) Notwithstanding the provisions of subparagraphs 17(a) and (b) above, Beneficiary will give its consent to a one time sale or transfer of Mortgaged Property, provided that no Event of Default under the Loan Documents has occurred and is continuing and (1) the grantee's or transferee's integrity, reputation, character management ability are satisfactory to Beneficiary in its sole discretion, (ii) if the original principal amount of the Loan is S5,000,000 or more, the grantee's or transferee's (and its sole general partner's) single purpose and bankruptcy remote character are satisfactory to Beneficiary in its sole discretion, (iii) and any conditions relating to the sale or transfer imposed by any national rating agency for the Certificates (as defined in Section 35) are satisfied, (iv) Beneficiary has obtained such estoppels from any guarantors of the Note or replacement guarantors and such other legal opinions, certificates and similar matters as Beneficiary may require, (v) all of Beneficiary's costs and expenses associated with the sale or transfer (including reasonable attorneys' fees) are paid by Grantor or the grantee or transferee, (vi) the payment of a transfer fee not to exceed 1% of the outstanding principal balance of the loan evidenced by the Note and secured hereby (the "Load), (vii) the grantee's execution of a written assumption agreement and such modification to the Loan Documents containing such terns as Beneficiary may require and delivery of such agreement to Beneficiary prior to such sale or transfer (provided that in the event the Loan is included in a REMIC and is a performing Loan, no modification to the terms and conditions shall be made or permitted that would cause (A) any adverse tax consequences to the REMIC or any holders of any Certificates, (B) this Deed of Trust to fail to be a Qualifying Mortgage under applicable federal law relating to REMIC's, or (C) result in a taxation of the income from the Loan to the REMIC or cause a loss of REMIC status), and (viii) the delivery to Beneficiary of an endorsement (at Grantor's sold cost and expense) to the mortgagee policy of title insurance then insuring the lien created by this Decd of Trust in form and substance acceptable to Beneficiary in its sole judgment. Without limiting the foregoing, if Beneficiary shall consent to any such transfer, the written assumption agreement described in subparagraph 17(cxvii) above shall provide for the release of Grantor of' personal liability under the Note and other Loan Documents solely as to acts or events occurring, or obligations arising, after the closing of such sale; provided, however, in no event shall such sale operate to: (x) relieve Grantor of any personal liability under the Note or any of the other Loan documents for any acts or events occurring, or obligations arising, prior to or simultaneously with the closing of such sale, and Grantor shall execute, without any cost or expense to Beneficiary, such documents and agreements as Beneficiary shall reasonably, require to evidence and effectuate the ratification of such personal liability; or (y) relieve any current guarantor or 18 • T ° r 11nlll11 1111111111111111 1111 19 at a9 R 291.00 0 9.N N 0.90 P1TRtN COUNTY CO indemnitor, including Grantor, of its obligations under any guaranty or indemnity agreement executed in connection with the loan secured hereby (including. without 'irritation, the Environmental Liabilities Agreement of even date herewith (the "Environmental Agreement ")), and each such current guarantor and indetnnitor shall execute, without any cost or expense to Beneficiary, such documents and agreements as Beneficiary shall reasonably require to evidence and effectuate the ratification of each such guaranty and indemnity agreement. Notwithstanding (y) preceding, if the proposed transferee and a party associated with the proposed transferee (the "Substitute Guarantor ") (1) is approved by Beneficiary in its sole discretion ( including a determination that the proposed transferee and Substitute Guarantor have adequate financial resources), (2) assumes the obligations of the current guarantor or indemnitor under its guaranty cr indemnity agreement, and (3) executes, without any cost or expense to Beneficiary, a Mw guaranty and/or indemnity agreement, as applicable, in form and substance satisfactory ro Beneficiary, then Beneficiary may release the current guarantor or indemnitor from all obligations arising under its guaranty or indemnity agreement after the closing of such sale. (d) Beneficiary may predicate its decision to grant or withhold consent to any subsequent one -time sale, conveyance or other transfer of the Mortgaged Property by the original Grantor upon the satisfaction (in the sole determination of Beneficiary) with such conditions as may be imposed by Beneficiary, which may include, but shall not be limited to, the following matters: (i) the delivery to Beneficiary of an endorsement (at Grantors sole cost and expense) to the mortgagee policy of title i'tsurance then insuring the lien created by this Deed of Taut in a form and substance acceptable to Beneficiary, in its sole ,discretion, (ii) the transferee's integrity, reputation, character, creditworthiness and management ability being satisfactory to Beneficiary in its sole judgment; (iii) if the original principal amount of the Loan is 35,000,000 or more, the transferee's single purpose and bankruptcy remote character being satisfactory to Beneficiary in its sole judgment; (iv) the transferee executing (prior to such sale or transfer) a written assumption agreement containing such terms as Beneficiary may require; (v) subject to any restrictions described in subparagraph 17(c) above relating to the Loan being included in a REMIC, an adjustment in the term of the Note, a principal paydown on the Note or an increase in the rate of interest payable on the Note; (vi) payment by Grantor of a trznsfer and assumption fee equal to one percent (1 %) of the then unpaid principal balance of the Note; (vii) payment by Grantor of the expenses described in subparagraph 17(f) below; and (viii) the satisfaction of any conditions imposed by any national rating agency for Certificates (as defined in paragraph 35(c)), together with such modifications of the Loan Documents and such legal opinions, certifications and similar matters that Beneficiary may require. Beneficiary agrees not to unreasonably withhold its consent to a one -time sale or transfer of the Mortgaged Property by the original Grantor upon the satisfaction (in the sole determination of Beneficiary) of the conditions to its consent as set forth herein; provided, however, in any event Beneficiary shall be deemed to be reasonable in withholding its consent if a sale to the proposed transferee receives unfavorable comment from a national rating agency for Certificates. Beneficiary shall not be required to demonstrate any actual impairment of its security or any increased risk of default 19 ,R �" c r t l� G4 a t�- t 11111111 11111111111 t111 414140 03/04/190$ 11t3114 DT DAVIS 3ILYI 20 of 40 R 201.00 9 0.00 N 0.00 PITON =NTT CO hereunder in order to declare the Indebtedness immediately due and payable upon sal; conveyance, alienation, mortgage, encumbrance, pledge or transfer by Grantor of the Mortgaged Property without Beneficiary's consent The provisions of this paragraph 17 shall apply to every sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property regardless of whether voluntary or not, or whether or not Beneficiary has consented to any previous sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property. In no event shall any of the terms and provisions of this paragraph 17 ;mend or modify the terms and provisions contained in paragraph 19 of the Mortgage. (e) My sale, conveyance, alienation, mortgage, encumbrance, pledge or transfer of the Mortgaged Property made in contravention of this paragraph 17 shall be null and void and of no force and effect. (t) Grantor agrees to bear and shall pay or reimburse Beneficiary on demand for all reasonable expenses (including, without limitation, reasonable attorney's fees and disbursements and title search costs) incurred by Beneficiary in connection with the review, approval and documentation of any proposed one time sale, conveyance or transfer. (g) Notwithstanding the foregoing provisions of this paragraph 17, the Grantor (1) may enter into new leases of all or any part of the Mortgaged Property or alter, modify or change leases of all or any part of the Mortgaged Property in accordance with the provisions of the Assignment of Rents, and (ii) may sell or otherwise transfer or dispose of any fixtures or personal property included in the Mortgagee Property if the same is immediately replaced with property of at least equal value and utility and this Deed of Trust becomes a valid first lien on such property. (h) Without limiting the generality of the foregoing provisions of this paragraph 17, the Grantor shall not create or permit to be created or to remain any additional lien on the Mortgaged Property or any part thereof, whether or not subordinate to the lien hereof, to secure any indebtedness for borrowed money. The Grantor acknowledges that any secondary financing placed upon the Mortgaged Property (i) may divert funds that would otherwise be used to pay the Indebtedness secured hereby; (i) could result in acceleration and foreclosure by any such junior encumbrancer that would force the Beneficiary to take measures and incur expenses to protect its security, and (ii) would impa the Beneficiary's ability to accept a deed in lieu of foreclosure from the Grantor inasmuch as foreclosure by the Beneficiary may be necessary to clear the title to the Mortgaged Property. 18 Management. The management of the Mortgaged Property shall be by either: (a) Grantor or an entity affiliated with Grantor approved by Beneficiary for so long as Grantor or said affiliated entity is managing the Mortgaged Property in a first class manner; or (b) a professional property management company approved in writing by Beneficiary. Such management by an affiliated entity or a professional property management company shall be pursuant to a written 20 1 11111111111 Illb 111111111 111111611111111111111 414100 13/04/111/ 11:36A DT DAVIS SILYI 21 of 40 1 201.00 D 0.10 t' e,ee PITKIK COUNTY CO agreement approved by Beneficiary. In no event shall any manager be removed or replaced or the terms of any management agreement modified or amended without the prior written consent of Beneficiary. If an Event of Default shag occur and be continuing or a default "shill occur under 4, '74^ any management contract then in effect, which defauh is not cured within any applicable grace or cure period, Beneficiary shall have the right to terminate, or to direct Grantor to terminate, such management contract upon thirty (30) days' notice and to retain, or to direct Grantor to retain, a new management agent approved by Beneficiary. 19. Covenants with Remect in Indebtedness Onerations Fundamental Chances of Grantor. (a) Grantor hereby represents, warrants and covenants as of the date hereof and until such time as the Indebtedness secured hereby is paid in fill, that: (1) Grantor will preserve and keep in full force and effect its existence, good standing and qualification to do business in the late in vhich the Mortgaged Property is located; (ii) Grantor will not enter into any transaction of merger or consolidation, or liquidate or dissolve (or suffer any liquidation or dissolution), or acquire by purchase or otherwise all or substantially all the business or assets of, or any stock, partnership interest or other evidence of beneficial ownership of any entity; (iii) Grantor does not own and will not own any encumbered asset other than (A) the Mortgaged Property, and (B) incidental personal property necessary for the ownership or operation of the Mortgaged Property, (iv) Grantor is not engaged and will not engage, either directly or indirectly, in any business other than the ownership, management and operation of the Mortgaged Property, (v) Grantor will not enter into any contract or agreement with any Principal or any party which is directly or indirectly controlling. controlled by or under common control with the Grantor or any Principal (an "Affiliate "), except upon terms and condons that are intrin_lcafly fair and substantially similar to those that would be available on an anus- length basis with third parties other than any Principal or Affiliate; (vi) Grantor has not incurred and will not incur any debt, secured or unsecured, direct or contingent (including guaranteeing any obligation), other than (A) the indebtedness secured hereby, and (B) trade and operational debt incurred in the ordinary course of business of operating the Mortgaged Property; $ f 21 r 1111111111111111111111111111111111111110I11111 111 r 414100 03/04/1988 112388 DT DAVIS SILVI 22 of 40 R 201.00 D 0.00 N 8.00 ATTAIN COUNTY CO (vii) Grantor has not made and will not make any loans or advances 7 - g the _ a any third party, nor to any Principal, any Affiliate or any constituent party Grantor, P. (viii) Grantor is and will remain solvent and will pay its debar from its assets as the same shall become due; #, (ix) Grantor has done or caused to be done and will do all things ner«sary to preserve its existence, and will no nor will Grantor permit any • Principal to, amend, modify or otherwise change Grantor's organizational documents, in a manner which would adversely affect Grantors existence as a single - purpose entity; • (x) Grantor will conduct and operate its business as presently conducted and operated; (xi) Grantor will maintain books and records and bank accounts separate from those of any Principal, any Affiliate and any constituent party of the Grantor; (xn) Grantor will be, and at all times will hold itself out to the t public a as, a legal entity separate and distinct from any other person or entity (including any Principal, any Affiliate or any constituent party of the Grantor, (xiii) Grantor will file its own tax returns; (xiv) Grantor will maintain adequate capital for the normal obligations reasonably foreseeable in a business of its size and character and in light of its contemplated business operations; (xv) Neither Grantor nor any constituent party of Grantor will seek the dissolution or winding up, in whole or in part, of Grantor; (xvi) Grantor will not commingle the funds and other assets of Grantor F Affiliate, any constituent party of Grantor or any c with those of any Principal, any ,, other person; (xvii) Grantor will use the proceeds of the than for business purposes, only, and not for personal, household or consumer use; �. (xviii) Grantor has and will maintain its assets in such a manner that it is not costly or difficult to segregate, ascertain or identify its individual assets from those of any Principal, any Affiliate, any constituent party of Grantor or any other person; and . 22 • I D11111111111111 11111 1111 11111 hhlIII 111 1111111 11 111 414100 03/04/1000 11.30A DT ppvlS SILVI 23 of N R 201.00 D 0.00 14 0.00 PITKIN COUNTY CO (xis) Grantor does not and will not hold itself out to be responsible for the debts or obligations of any other person (provided, that the foregoing shall not prevent Grantor from bring and holding itself responsible for expenses incurred or obligations undertaken by the property manager of the Mortgaged Property in respect of its duties regarding the Mortgaged Property). (b) The additional covenants, agreements and provisions set forth in Exhibit C attached hereto, if any, shall be a part of this Deed of Trust and shall, in the event of any conflict between such further stipulations and any of the other provisions of this Deed of Trust, be deemed to control. 20. Interest Payable by Beneficiary nn the Replacement Escrow Fund. Beneficiary shall cause funds in the Replacement Escrow Fund to be deposited into an 'Serest bearing account of the type customarily maintained by Beneficiary or its servicing agent for the investment of similar reserves, which accounts may not yield the highest interest rate then available. Interest payable on such amounts shall be computed based on the daily outstanding balance in the Replacement Escrow Fund. Such interest shall be calculated on a simple, non - compounded interest basis based solely on contributions made to the Replacement Escrow Fund by Grantor. All interest eamed on amounts contributed to the Replacement Escrow Fund shall be retained by Beneficiary and accumulated for the benefit of Grantor and added to the balance in the Replacement Escrow Fund and shall be disbursed for payment of the items for which the funds in • the Replacement Escrow Fund are to be disbursed. 21. Security Interest. This Deed of Trust shall constitute a security agreement with respect to (and the Grantor hereby grants the Beneficiary a security interest in) all personal property and fixtures included in the Mortgaged Property as more specifically described in paragraphs (u), (iv), (v), (vi), (vu), (viii); (ix), (x) and (xi) of the granting clause above. The Grantor will from time to time, at the request of the Beneficiary, execute any and all financing statements covering such personal property and fixtures On a form satisfactory to the Beneficiary) which the Beneficiary may reasonably consider necessary or appropriate to perfect its security interest. 22. Events of Default. Each of the following occurrences shall constitute an event of default hereunder (herein called an "Event of Default "): (a) Grantor fails to punctually pc larm any covenant, agreement, obligation, term or condition hereof which requires payr, ant of any money to Beneficiary or Grantor fails to punctually perform any obligation to pay money under the Note, and any such failure shall continue unremedied for five (5) calendar days. (b) Grantor fails to provide insurance as required by paragraph 11 hereof or fails to perform any covenant, agreement, obligation, term or condition set forth in paragraphs 6, 13, I S and 19 hereof. 23 • 1 f4... 110111111111111111 111111111111111111111111 1111111111111 • 414100 03/04/1011 11030A DT DAMS SILVI 24 of 48 N 211.01 D 0.00 N 0.00 FITNIN COUNTY CO (c) Grantor fails to perform any other covenant, agreement, obligation, term or condition set forth herein (other than a covenant or agreement or default in which is elsewhere in this paragraph 22 specifically dealt with) and, to the extent such faihrre or defauh is susceptible of being cured, the continuance of such failure or default for thirty (30) days after written notice thereof from Beneficiary to Grantor, provided, however, that if such default is susceptible of cure but such cure cannot be accomplished with reasonable diligence within said period of thne, and if Grantor commences toG r default promptly after receipt of notice thereof from Beneficiary, and thereafter p the curing of such default with reasonable diligence, such period of time shall be extended for such period of time as may be necessary to cure such default with reasonable diligence, but not to exceed an additional ninety (90) days. (d) Any representation or warra,ty made herein, in or in connection with any application or commitment relating to the Loan, in any certificate, instrument or statement made or delivered pursuant to or in connection herewith, or in any of the other Loan Documents to Beneficiary by Grantor, by any Principal or by any indetnnitor or guarantor under any indemnity or guaranty executed in connection with the Loa, is determined by Beneficiary to have been false or misleading in any material respect at the time made. (e) There shall be a sale, conveyance, alienation, mortgage, encumbrance, f pledge or other transfer of the Mortgaged Property or any portion thereof in violation of paragraph 17 hereof. (f) There shall be a default or breach on the part of Grantor of any of the obligations, covenants or agreements of Grantor under any of the other Loan Documents which has not been cured within any applicable grace or cure period therein provided. (g) Grantor, any Principal or any indemnitor or guarantor under any indemnity or guaranty executed in connection with the Loan becomes insolvent, or shall make a transfer in fraud of creditors, or shall make an assignment for the benefit of creditors, or shall file a petition in bankruptcy, or shall voluntarily be adjudicated insolvent or bankrupt or shall admit in writing the inability to pay debts as they mature, or shall petition or apply to any tribunal for or shall consent to or shall tot contest the appoimment of a receiver, trustee, custodian or similar officer for Grantor, for any such Principal or for any such indemnitor or guarantor or for a substantial part of the assets of Grantor, of any such Principal or of any such indemnitor or guarantor, or shall commence any case, proceeding or other action under any bankruptcy, reorganization, arrangement, readjustment or debt, dissolution or liquidation law or statute of any jurisdiction, whether now or hereafter in - . .. effect. (h) A petition is filed cr any cue, proceeding or other action is commenced against Grantor, against any Principal or against any indemnitor or guarantor under any indemnity or guaranty executed in connection with the Loan seeking to have an order for relief entered against it as debtor or seeking reorganization, arrangement, adjustment, liquidation, dissolution or composition of it or its debts or other relief under any law , . 24 • r 1 111111 11111 111111 IIIIII 1111 IIIII 111111 III 11011111 111 {i {iN 113/114 /111011 1130a OT Davis S1Wi di 25 of 40 R 201.00 0 0.00 R 0.00 PITKIR COUNTY CO relating to bankruptcy, insolvency, arrangement, reorganization, receivership or other debtor relief under any law or statute of any jurisdiction, whether now or hereafter in effect, or a court of competein jurisdiction totem an order for relief against Grantor, against any Principal or against any indemnitor or guarantor under any indemnity or • guaranty executed in connection with the Loan seared hereby as debtor, or an order, . �: judgment or decree is entered appointing, with or without the consent of Grantor, of any : �;: such Principal or of any such indemnitor or guarantor, a receiver, trustee, custodian or similar officer for Grantor, for any such Principal or for any such indemnitor or guarantor. or for any substantial pan of any of the properties of Grantor, of any such Principal or of any such indemnitor or guarantor, and if any such event shall occur, such petition. case, p ro ceeding, action, order, judgment or decree shill not be dismissed within sixty (60) days f': after being commenced. (i) The Mortgaged Property or any part thereof shall be taken on execution or other process of law in any action against Grantor. 0) Grantor abandons all or a portion of the Land or the Improvements. (k) The holder of any lien or security interest on the Mortgaged Property or portion thereof (without implying the er su superior or subordinate to thr Deed of Trust of Beneficiary to the of any such lien or security interest), whether P i or any of the other Loan Documents, declares a default and such default is not cured within any applicable grace or cure period set forth in the applicable document or such holder institutes foreclosure or other procctdings for the enforcement of its remedies thereunder. . I (I) Any dissolution, termination, partial or complete liquidation, merger or consolidation of Grantor or any of its Principals. ' (m) Judgments or orders for the payment of money (other than such judgments or orders in respect of which adequate insurance is maintained for the paym_nt thereof) against the Grantor in an aggregate amount in excess of $100,000 shall r-_main unpaid, unstayed on appeal, undischarged, unbonded or undismissed for a period of sixty (60) days or more. (n) Seizure or forfeiture of the Mortgaged Property, or any portion thereof, or Grantor's interest therein, resulting from criminal wrongdoing or other unlawful action of Grantor, any Principal or any Affiliate under any federal, state or local law. ` . 2; i s. Upon the occurrence of any Event of Default, Grantor agrees that the Beneficiary may take such action, without notice or demand, as it deems a to not protect mited e nforce its rights against Grantor and in and to the Mortgaged Property, including, r; to, the following actions, each of which may be pursued concurrently or otherwise, at such time determine, in its sole discretion, without impairing or $: and in such order as the Beneficiary may otherwise affecting the other rights and remedies of the Beneficiary: r 25 J. a r 1 '` cp c c d E u . 414110 1 11111111111111 111111 1 11111111111111111111 1 111111 1 • O of 40 N 201.00 D 0.80 N DAVIS .0 PITKIN COUNTY CO Ea Ea "5 (a) declare the entire unpaid Indebtedness to be immediately due and payable; re (b) with or without entry, to the extent permitted and pursuant to the res provided by applicable law, request the Trustee to institute proceedings for the c p rocedu partial foreclosure of this Deed of Trust for the portion of the Indebtedness then due and W payable, subject to the continuing lien and security interest of this Mortgage for the t balance of the Indebtedness not then due, unimpaired and without loss of priority; w 0 (c) request the Trustee to sell for cash the Mortgaged Property or any part N thereof and all estate, claim, demand, right, title and interest of Grantor therein and rights ,� of redemption thereof, pursuant to power of sale or otherwise, at one or more sales. in N' one or more parcels, at such time and place, upon such terms and after such notice thereof t - as may be required or permitted by law, • 1 (d) subject to the exculpation provisions of the Note, institute an action, suit or u + proceeding in equity for the specific performance of any covenant, condition or agreement c c contained herein, in the Note or in the other Loan Documents; n (e) subject to the exculpation provisions of the Note, recover judgment on the Note tither before, during or after any proceedings for the enforcement of this Deed of c Trust or the other Loan Documents; a S' e (f) apply for the appointment of a receiver, trustee, liquidator or conservator 0' of the Mortgaged Property, exparte and without notice except as required by Colorado law and without regard for the adequacy of the security for the Indebtedness and without regard for the solvency of Grantor, any guarantor, Pr: indenmitor or of any person, firm or . other entity liable for the payment of the Indebtedness; .v. (g) subject to any applicable law, the license granted to Grantor under the Assignment of Rents shall automatically be rooked and Beneficiary may enter into or re upon the Mortgaged Property, either personally or by its agents, nominees or attorneys R F and dispossess Grantor and its agents and servants ther_from, without liability or trespass, damages or otherwise exclude Grantor and its agents or servants wholly therefrom, and iE take possession of all books, records and accounts relating thereto and Grantor agrees to surrender possession of the Mortgaged Property and of such books, records and accounts O to Beneficiary upon demand, and thereupon Beneficiary may (i) use, operate, manage, w control, insure, maintain, repair, restore and otherwise deal with all and every part of the Mortgaged Property and conduct the business thereat; (ii) complete any construction on the Mortgaged Property in such manner and form as Beneficiary deems advisable; (iii) w m make alterations, additions, renewals. replacements and improvements to or on the G Mortgaged Property; (iv) exercise all rights and powers of Grantor with respect to the Z Mortgaged Property, whether in the name of Grantor or otherwise, including. D limitation, the right to make, cancel, enforce or modify Leases, obtain and evict tenants, ( and demand, sue for, collect and receive all Rents of the Mortgaged Property and every part thereof; (v) require Grantor to pay monthly in advance to B ene fi ciary, or any receiver 0 26 r j I t 01 coil y r , F. 1 111111 11111 Hi1111011110111 UIIII III 1111111 11 IN • 1, 414160 03/04/11011 11:36A OT DAVIS SILVI 27 of w N 201.00 0 0.00 N 0.06 P27KIN COUNTY CO i.,„ appointed to collect the Rents, the fair and reasonable rental value for the use and occupation of such part of the Mortgaged Property as may be occupied by Grantor, (vi) require Grantor to vacate and surrender possession of the Mortgaged Property to Beneficiary or to such receiver and, in default thereof, Grantor may be evicted by summary proceedings or otherwise; and (vii) apply the receipts from the Mortgaged Property to the payment of the Indebtedness in such order, priority and proportions as Beneficiary shall deem appropriate in its sole discretion after deducting therefrom all expenses (including reasonable attorneys fees) incurred in aatnection with the aforesaid operations and all amounts necessary to pay the Taxes and Other Charges, Insurance Premiums and other expenses in connection with the Mortgaged Property, as well a just and reasonable compensation for the services of Beneficiary, its counsel, agents and employees; (h) exercise any and all rights and remedies granted to a seared party upon default under the Uniform Commercial Code, including, without limiting the generality of the foregoing: (i) the right to take possession of any Mortgaged Property which is personal property, and to take such other treasures as Beneficiary may deem necessary for the care, protection and preservation of such personal property, and (ii) request Grantor at its expense to assemble such personal property and make it available to Beneficiary at a • convenient place acceptable to Beneficiary. Any notice of sale, disposition or other intended action by Beneficiary with respect to such personal property sent to Grantor in accordance with the provisions hereof at least five (5) days prior to such action, shall , constitute commercially reasonable notice to Grantor; • ( apply any sums then deposited in the Escrow Funds and any other sums held in escrow or otherwise by Beneficiary in accordance with the terms of this Deed of Trust or any other Loan Document to the payment of the following items in any order in its sole discretion: n Taxes and Other Charges; (i) Insurance Premiums; (hi) interest on the unpaid principal balance of the Note; (iv) amortization of the unpaid principal balance of the Note; (v) all other sums payable pursuant to the Note, this Deed of Trust and the other Loan Documents, including without limitation advances made by Beneficiary pursuant to the terms of this Deed of Trust; (j) surrender the Policies maintained pursuant to Paragraph 11 hereof, collect the unearned Insurance Premiums and apply such sums as a credit on the Indebtedness in such priority and proportion as Beneficiary in its discretion shall deem proper, and in connection therewith, Grantor hereby appoints Beneficiary as agent and attorney -in -fen (which is coupled with an interest and is therefore irrevocable) for Grantor to collect such Insurance Premiums; (k) apply the undisbursed balance of' any Net Proceeds Deficiency deposit, together with interest thereon, to the payment of the Indebtedness in such order, priority f t and proportions as Beneficiary shall deem to be appropriate in its discretion; or y 1 (I) pursue such other remedies as Beneficiary may have under applicable taw. 27 i C 1 s i 1 1110111111111111 11110 11111111111111 ! 1111111111111111 414118 03/84/1118 11:3111 DT DAIS SILV! 28 of 40 R 201.00 0 8.01 N 8.00 PIMIN COUNTY CO Ir. the event of a sale, by foreclosure, power of sale, or otherwise, of less than all of the Mortgaged Property, this Deed of Trust shall continue as a lien and security interest on the remaining portion of the Mortgaged Property unimpaired and without loss of priority. • Notwithstanding the provisions of this Paragraph 23 to the contrary, if any Event of Default as described in clause (g) or (h) of Paragraph 22 shall occur, the entire unpaid Indebtedness shall be automatically due and payable, without any further notice, demand or other action by Beneficiary. 24. Tn:stsr'c Deeds. After any sale pursuant to Section 23 of this Deed of Trust, Trustee shall execute and deliver a public trustee's deed in the fonn and manner provided for by Cciorado law. 25. Feet. The Grantor shall pay on demand all appraisal fees, survey fees, recording fns, license and permit fees, title insurance and other insurance premiums incurred by the • Beneficiary in connection with the Note, this Deed of Trust, the Assignment of Rents and the other Loan Documents and the transactions contemplated hereby, and all other costs and expenses incurred by the Beneficiary in connection with the negotiation, preparation, execution, recording, satisfaction, securitiration, servicing, or enforcement of the Note, this Deed of Trust, the Assignment of Rents and the other Loan Documents, including but not limited to reasonable fees for external costs incurred in providing information in connection with the securitization or transfer of this Deed of Trust by the Grantor, monitoring timely payment of taxes, assessments and insurance prcmiums, preparation and submission of information statements relating to this Deed of Trust as required by applicable federal and state law and regulations, and all reasonable fees and out -of- pocket expenses of counsel for the Beneficiary with respect thereto. All such costs, expenses and fees shall become additional Indebtedness of the Grantor secured by this Deed of Trust. Unless the Grantor and the Beneficiary agree in writing to other tams of repayment, such amounts shall be due and payable immediately upon their disbursement by the Beneficiary, and shall bear interest from the time of such disbursement at the Default Interest Rate stated in the Note. 26. Estonoel Certificate. The Grantor shall, at any time and from time to time, upon not less than 15 days' prior notice by the Beneficiary, execute, acknowledge and deliver, without charge, to the Beneficiary or to any person designated by the Beneficiary, a statement in writing certifying that this Deed of Trust is unmodified (or if there have been modifications, identifying the same by the date thereof and specifying the nature thereof), the principal amount then secured hereby and the unpaid balance of the Note, that the Grantor has not received any notice of default or notice of acceleration or foreclosure of this Deed of Trust (or if the Grantor has received such a notice, that it has been revoked. if such be the case), that to the knowledge of the Grantor no Event of Default exists hereunder (or if any such Event of Default does exist, specifying the same and stating that the same has been cured, if such be the case), that the Grantor to its knowledge has no claims or offsets against the Beneficiary (or if the Grantor has any such claims, specifying • the same), and the dates to which the interest and the other sums and charges payable by the Grantor pursuant to the Note have been paid. 28 • is 11111111111111111111111 !111111111111111111110111if 111 t. • 414180 83/04/1998 11:300 DT DORIS SILVI 29 of 40 0 201.000 D 0.00 M 0.00 PITMIM COUNTY CO 27. Ebearance Not a Waiver; Rights and Remedies Cumulative. No delay by the Trustee or the Beneficiary in exercising any right or remedy provided herein or otherwise afforded by law or equity shall be deemed a waiver of or preclude the exercise of such right or remedy, and no waiver by the Trustee or Beneficiary of any particular provision of this Deed of Trust shall be deemed effective unless in writing signed by the Beneficiary. All such rights and remedies provided for herein or which the Beneficiary or the holder of the Note may have otherwise, at law or in equity, shall be distinct, separate and cumulative and may be exercised concurrently, independently or successively in any order whatsoever, and as often as the occasion therefor arises. The Beneficiary's taking action pursuant to paragraph 14 or receiving proceeds, awards or damages pursuant to paragraphs 11 or 15 shall not impair any right or remedy available to the Beneficiary under paragraph 23 hereof. Acceleration of maturity of the Note, once claimed hereunder by the Beneficiary, may, at the option of the Beneficiary, be rescinded by' acknowledgment to that effect by the Beneficiary, but the tender and acceptance of partial payments alone shall not in any way affect or rescind such acceleration of maturity of the Note. 28. • n, :it :. r n ,er• e:,.l .. .., i• .' . u 1 The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to, the respective heirs, legal representatives, successors and assigns of the Trustee, the Beneilciary and the Grantor; provided, however, that this paragraph 28 shall not limit the effect of paragraph 17. Wherever used, the singular number shall include the plural, and the plural the singular, and the use of any gender shall apply to all genders. The captions and headings of the paragraphs of this Deed of Trust are for convenience only and are not to be used to interpret or define the �p provisions hereof. No amendment of this Deed of Trust shall be effective unless in a writing executed by the Grantor and the Beneficiary. 29. Notices. All notices, requests or other communications to be sent by one party to the other hereunder or required by law shall be in writing and shall be deemed to have been validly given or served by delivery of the same in person to the intended addressee, or by depositing the same with Federal Express or another reputable private courier service for next business day delivery, or by depositing the same in the United States mail, postage prepaid, registered or certified mail, return receipt requested, in any event addressed to the intended addressee at its address set forth below or at such other address as may be designated by such party as herein provided. All notices, demands and requests shall be effective upon such personal delivery, or one (1) business day after being deposited with the private courier service, or two (2) business days after being deposited in the United States mail as required above. Rejection or other refusal to accept or the inability to deliver because of changed address of which no notice was given as herein required shall be deemed to be receipt of the notice, demand or request sent. By giving to the other party hereto at least fifteen (15) days' prior written notice thereof in accordance with the provisions hereof, the parties hereto shall have the right from time to time to change their respective addresses and each shall have the right to specify as its address any other address within the United States of America. • Address of Grantor: • Hunter P:a:. Associates, LLP 29 ■ 1 • • 1 111111 111111111111 in 11111111 1111 111111111 • 414110 03/04/1800 11:301 DT DAVIS SILVI • 30 eV 40 R 201.00 0 0.00 N 0.00 /ITKIN C0(STY C0 South Mill Street, Suite 30IA Aspen, Colorado 81611 Attention: Anthony 1. Mazza • Address of Beneficiary: Norwest Bank Minnesota, National Association Sixth Street and Marquette Avenue Minneapolis, MN 55479 -0089 Attention: lames R. Wenker 30. Lupo& Liability. Notwithstanding anything to the contrary contained in this Deed of Trust, the liability of Grantor and its general partners for the indebtedness secured hereby and for the performance of the other agreements, covenants and obligations contained herein and in the Loan Documents shall be limited as set forth in the Note. 31. Governing Law Severability. This Deed of Trust shall be governed by and construed in accordance with the substantive laws of the State of Colorado (without regard to any conflicts of laws principles). In the event that any provision or clause of this Deed of Trust conflicts with applicable law, such conflict shall not affect other provisions of this Deed of Trust which can be given effect without the conflicting provisions and to this end the provisions of this Deed of Trust are declared to be severable. Nothing in this Deed of Trust dealing with the effectiveness hereof or foreclosure procedures or specifying particular actions to be taken by Grantor, Beneficiary or by Trustee or any similar officer shall be deemed to contradict or add to the requirements, procedures or limitations now or hereafter specified by Colorado law, and any such inconsistency shall be resolved in favor of Colorado law applicable at the time of any of the foregoing events. 32. CnunterDarls. This Deed of Trust may be executed in any number of counterparts, each of which shall be an original, but all of which together shall constitute one instrument. 33. Production of Documents. The Grantor shall, while this Deed of Tout is in full force and effect, furnish the Beneficiary with such documents, instruments and papers as the Beneficiary may request from time to time in order for the Beneficiary to effectuate a sale of the Loan. 34. Waiver of Marshalling. The Grantor hereby waives any and all right to require the marshalling of assets in connection with the exercise of any of the remedies permitted by applicable law or provided herein. 35. Fixture Filing. From the date of its recording, this Deed of Trust shall be effective as a financing statement filed as a fixture filing with respect to all goods constituting part of the Mortgaged Property (as more particularly described in item (ii), (viii), (ix), (x) and (xii) of the granting clause of this Deed of Trust) which are or are to become fixtures related to the real • estate described herein. For this purpose, the following information is set forth: 30 111111111111111111111111 1111 Hill 111111 111 111111111 111 414166 63/64/1666 11:360 DT DAVIS SILVI 31 •/ 41 1 161.66 0 6.66 N 6.06 HTNIN COUNTY CO (a) Narre and Address of Debtor: Hunter Plaza Associates, LLP • South Mill Street, Suite 301A Aspen, Colorado 81611 Attention: Anthony 1 Mazza (b) Taxpayer Identification Number of Debtor: 84- 1053432 (c) Name and Address of Secured Party: Norwest Bank Minnesota, National Association Sixth Street and Marquette Avenue Minneapolis, MN 55479 -0089 Attention: James R. Wenker (d) This document covers goods which are or are to become fixtures. (e) The name of the record owner of the Land is the Debtor described above. 36. Further Assurances Etc. (a) At any time and from time to time until payment in MI of the Indebtedness, the Grantor will, at the request of the Beneficiary, promptly execute and deliver to the Beneficiary such additional instruments as may be reasonably required further to evidence the lien of this Deed of Trust and further to protect the security interest of the Beneficiary with respect to the Mortgaged Property, including, without limitation, additional security agreements, financing statements and continuation statements. Any expenses incurred by the Beneficiary in connection with the preparation and recordation of any such instruments, including, but not limited to reasonable attorneys' fees, shall become additional Indebtedness of the Grantor secured by this Deed of Trust. Unless the Grantor and the Beneficiary agree in writing to other terms t• ' repayment, such amounts shall be immediately due and payable, and shall bear interest from the date of disbursement at the Default Interest Rate stated in the Note. (b) Beneficiary (and its servicer and their respective assigns) shall have the right to disclose in confidence such financial incarnation regarding Grantor, any Principal, any constituent party of Grantor or the Mortgaged Property as may be necessary to (i) complete any sale or attempted sale of the Note or participations in the Loan (or any transfer of the servicing thereof) evidenced by the Note and the Loan Documents, (ii) service the Note or (iii) furnish information concerning the payment status of the Note to the holder or beneficial owner thereof, including, without limitation, all Loan Documents, financial statements, projections, internal memoranda, audits. reports, payment history. 31 • 4 1 1111111101111111 111111 1111101101111 111 111111111 1111 C 414118 02/04/1090 11•344 DT DAVIS 32 er 40 0 201.00 D 0.00 N 0.00 PITKIN COUNTY CO ! appraisals and any and all other information and documentation in the Beneficiary's files 'it (and such services files) relating to the Grantor, any Principal, any constituent party of i Grantor and the Mortgaged Property. This authorization shall be irrevocable in favor of j the Beneficiary (and its servicer and their respective assigns), and Grantor, each Principal :k and each constituent party of Grantor waive any claims that they may have against the t. Beneficiary, its servicer and their respective assigns or the party receiving information` from the Beneficiary pursuant hereto regarding disclosure of information in such files and s further waive any alleged damages which they may suffer as a result of such disclosure. The Grantor acknowledges that the Beneficiary intends to sell the Loan evidenced by the Note and the Loan Documents or a participation interest therein to a i. party who may pool the Loan with z ne.c.ther of other loans and to have the holder of such loans (most lixely a special pt:rpn.r &EV,4!) issue one or more classes of Mortgage • Backed Pau - Through Certificate; - h.- i 'Cali ;Crates "), which may be rated by one or more I national rating agencies. Beneficiv; : and its ser.icer and their respective assigns) shall be permitted to share any of the inform.' ion refrred to in subparagraph (b) above, whether 9 obtained before or after the date of the Note, with the holders of the Certificates, investment banking firms, rating agencies, accounting firms, custodians, successor mortgage services, law firths and other third -party advisory finis involved with the Loan evidenced by the Note and the Loan Documents or the Certificates. It is understood that the information provided by the Grantor to the Beneficiary (or its services and their respective assigns) or otherwise received by Beneficiary (or its services and their respective assigns) in connection with the Loan evidenced by the Loan Documents may ultimately be incorporated into the offering documents for the Certificates and thus various prospective investors may also see some or all of the information. The Beneficiary (and its servicer and their respective assigns) and all of the aforesaid third -party advisors and professional firths shall be entitled to rely on the information supplied by, or on behalf of, the Grantor. • 37. G r antor's lndc nnifiwtion. The Grantor shall and does hereby agree to indemnify and to hold the Beneficiary harmless of and from any and all claims, demands, liability, loss or damage (including all costs, expenses, and reasonable attorneys' fees in the defense thereof) asserted against, imposed on or incurred by the Beneficiary in connection with or as a result of the Note, this Deed of Trust or the other Loan Documents or the exercise of any rights or remedies under this Deed of Trust, other than any such claims, demands, liability, loss or damages arising solely from the Beneficiary's willful misconduct or gross negligence. Should the Beneficiary incur any such liability, the amount thereof, together with interest thereon at the Default Interest Rate stated in the Note, shall be secured hereby and by this Deed of Trust and the Grantor shall reimburse the Beneficiary therefor immediately upon demand. 38. •u' i•• • i dic ion.W -•v • i - -. (a) THE GRANTOR, TO THE FULL EXTENT PERMITTED BY LAW, HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, (i) SUBMITS TO 32 ■ 1 (1101 11111 all 01111 1111 11111 UN 111 ill I 1111 41410e eveleea 11:38A DT DAVIS SILVI 33 of 4e A 201.00 D 8.00 N 0.00 PITKIN COUNTY CO PERSONAL JURISDICTION IN THE STATE OF COLORAJ) '` $ I ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISIA- rkOM OR RELATING TO THE NOTE, THIS DEED OF TRUST OR ANY OTHER OF THE LOAN DOCUMENTS, (ii) AGREES THAT ANY SUCH ACTION, SUIT OR PROCEEDING MAY BE BROUGHT UN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SILTING IN PITKIN COUNTY, COLORADO, f 4/ (iii) SUBMITS TO THE JURISDICTION OF SUCH COURTS, AND (h) TO THE FULLEST EXTENT PERMITTED BY LAW, AGREES THAT IT WILL NOT BRING ANY ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM (BUT NOTHING HEREIN SHALL AFFECT THE RIGHT OF THE BENEFICIARY TO BRING ANY. ACTION, SUIT OR PROCEEDING IN ANY OTHER FORUM). THE GRANTOR FURTHER CONSENTS AND AGREES TO SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER LEGAL PROCESS IN ANY SUCH SUIT, ACTION OR PROCEEDING BY REGISTERED OR CERTIFIED U.S. MAIL, POSTAGE PREPAID, TO THE GRANTOR AT THE ADDRESS FOR NOTICES DESCRIBED IN PARAGRAPH 29 HEREOF, AND CONSENTS AND AGREES THAT SUCH SERVICE SHALL CONSTITUTE IN EVERY RESPECT BE VALID AND EFFECTIVE SERVICE (BUT NOTHING HEREIN SHALL AFFECT THE VALIDITY OR EFFECTIVENESS OF PROCESS SERVED IN ANY OTHER MANNER PERMITTED BY LAW) (b) GRANTOR HEREBY AGREES NOT TO ELECT A TRIAL BY JURY OF ANY ISSUE TRIABLE OF RIGHT BY JURY, AND WAIVES ANY RIGHT TO TRIAL BY JURY FULLY TO THE EXTENT THAT ANY SUCH RIGHT SHALL NOW OR HEREAFTER EXIST WITH REGARD TO THIS 1 ' DEED OF TRUST OR THE OTHER LOAN DOCUMENTS, OR ANY CLAIM, COUNTERCLAIM OR OTHER ACTION ARISING IN CONNECTION THEREWITH INCLUDING, BUT NOT LIMITED TO THOSE RELATING TO i (A) ALLEGATIONS THAT A PARTNERSHIP EXISTS BETWEEN , BENEFICIARY AND GRANTOR; (B) USURY OR PENALTIES OR DAMAGES THEREFOR; (C) ALLEGATIONS OF UNCONSCIONABLE ACTS, DECEPTIVE TRADE PRACTICE, LACK OF GOOD FAITH OR FAIR DEALING, LACK OF COMMERCIAL REASONABLENESS, OR SPECIAL RELATIONSHIPS (SUCH AS FIDUCIARY, TRUST OR CONFIDENTIAL RELATIONSHIP); (D) ALLEGATIONS OF DOMINION, CONTROL, ALTER EGO, INSTRUMENTALITY, FRAUD, REAL ESTATE FRAUD, MISREPRESENTATION, DURESS, COERCION, UNDUE INFLUENCE, INTERFERENCE OR NEGLIGENCE; (E) ALLEGATIONS OF TORTIOUS INTERFERENCE WITII PRESENT OR PROSPECTIVE BUSINESS RELATIONSHIPS OR OF ANTITRUST; OR (F) SLANDER, LIBEL OR DAMAGE TO REPUTATION. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS GIVEN KNOWINGLY AND VOLUNTARILY BY GRANTOR, AND IS INTENDED TO ENCOMPASS INDIVIDUALLY EACH INSTANCE AND EACH ISSUE AS TO WHICH THE RIGHT TO A TRIAL BY JURY WOULD OTHERWISE ACCRUE. BENEFICIARY 15 HEREBY AUTHORIZED TO FILE . 33 i z i t ; r IIIII 11111 IIIIII 1111111111 11111 MINCE • 414100 03/04/1011 11.3 6R DT MIS SILVI 34 of 40 R 201.00 0 0.00 N 0.00 PITKIN COUNTY CO i • A COPY OF THIS PARAGRAPH IN ANY PROCEEDING AS CONCLUSIVE EVIDENCE OF THIS WAIVER BY MAILER 39. contractual Statute of Limitations. The Grantor hereby agrees that any claim or cause of action by the Grantor against the Beneficiary, or any of the Beneficiary's directors, officers, employees, agents, accountants or attorneys, based upon, arising from or relating to the Indebtedness scoured hereby, or any other matter, cause or thing whatsoever, whether or not relating thereto, occurred, done, omitted or suffered to be done by the Beneficiary or by the Beneficiary's directors, officers, employees, agents, accountants or attorneys, whether sounding in contract or in tort or otherwise, shall be barred unless asserted by the Grantor by the commencement of an action or proceeding in a court of competent jurisdiction by the fling of a complaint within one (1) year after the Grantor first acquires or reasonably should have acquired knowledge of the first act, occurrence or omission upon which such claim or ause of action, or any part thereof, is based and service of a summons and complaint on an officer of the Beneficiary or any other person authorized to accept service of process on behalf of the Beneficiary, within thirty (30) days thereafter. The Grantor agrees that such one (1) year period of time is reasonable and suffident time for a borrower to investigate and act upon any such claim or cause of action. The one (1) year period provided herein shall not be waived, tolled or extended except by the specific written agreement of the Beneficiary. This provision shall survive any termination of this Deed of Trust or any of the other Loan Documents. 40. Trustee. (a) The Trustee holds title under this Deed of Trust for the benefit of the Beneficiary in accordance with the provisions of the applicable Colorado Statutes. The trust created hereby is not revocable by the Grantor. Acceptance of this Deed of Trust shall not be a condition to its validity, and this Deed of Trust shall be effective upon its execution and delivery to the Beneficiary. (b) The Trustee accepts this trust when this Deed of Trust, duly executed and acknowledged, is made a public record as provided by law. The Trustee may resign at any time by delivering notice thereof to the Grantor and the Beneficiary. (c) The Beneficiary may substitute another trustee in the place of the Trustee herein named to exercise the rights, powers and duties granted by law and contained herein. Substitutions shall be made by recording notice of the substitution in the office of the county recorder of each county in which the Mortgaged Property or some part of the Mortgaged Property is situated at the time of the substitution. The Beneficiary shall give written notice of the substitution through registered or certified mail, postage prepaid, to the Grantor, the Trustee and the successor trustee. (d) The Grantor shall pay the Trustee for all acts performed by the Trustee • hereunder or in connection herewith in accordance with the Trustee's established fees and charges. - • 34 .0 • E. a 11111111 11111111110110 I I I 1 1111111111111111111 y 414160 03/04/1990 11:364 OT DAVIS STLVI s N N t 36 of 40 201.00 D 0,00 0.00 PITKTN COUNTY CO y h O (e) It shall be no part of the duty of the Trustee to see to any recording, filing ts « or registration of this Deed of' Trust or any other instrument in addition or supplemental TO thereto, or to give any notice thereof, or to see to the payment of or be under any duty in a respect of any tax or assessment or other governmental charge which may be levied or I Q assessed on the Mortgaged Property, or any part hereof, or against the Grantor, or to see O) to the performance or observance by the Grantor of any of the covenants and agreements contained herein. The Trustee shall not be responsible for the execution, acknowledgment O . ■'' 4,-. or validity of this D eed o f Trust or of any instrument in addition or supplemental hereto, or for the sufficiency of the security purported to be created hereby, and makes no • 3 representation in respect thereof or in respect of the rights of the Beneficiary. The Trustee ✓ stall have the tight to advise with counsel upon any matters arising hereunder and shall be y fully protected in relying as to legal matters on the advise of counsel. The Trustee shall not incur any personal liability hereunder except for its own willful misxs nduct; and th , Oi Trustee shall have the right to rely on any instrument, document or signature authorizing a supporting any action taken or proposed to be taken by the Trustee hereunder, believed C by the Trustee in good faith to be genuine. c ..c 41. Change in law. L y e (a) If any law is enacted or adopted or amended after the date of this Deed of m Trust which deducts the ;.tdebtedness from the value of the Mortgaged Property for the purpose of taxation or which imposes a tax, either directly or indirectly, on the I. - Indebtedness or Beneficiary's interest in the Mortgaged Property, Grantor will pay the tax, O' with interes ant: penalties thereon, if any. If Beneficiary is advised by counsel chosen by it I c that the payment of tax by Grantor would be unlawful or taxable to Beneficiary or + v unenforceable or provide the basis for a defense of usury, then Beneficiary shall have the , y option, exercisable by written notice of not less than ninety (90) days, to declare the ce indebtedness immediately due and payable. In the event Beneficiary so elects to declare the ID •— Indebtedness immediately d-_ and payable, no prepayment premium shall be due. a (b) Grantor will not claim or demand or be entitled to any credit or credits on E account of the Indebtedness for any part of the Taxes or Other Charges assessed against :E the Mortgaged Property, or any part thereof, and no deduction shall otherwise be made or claimed from the assessed value of the Mortgaged Property, or any part thereof, for real 0 estate tax purposes by reason of this Deed of Trust or the Indebtedness. If such claim, s credit or deduction shall be required by law, Beneficiary shall have the option, exercisable by written notice of not less than ninety (90) days, to declare the Indebtedness inunedietely due and payable. In the event Beneficiary so elects to declare the indebtedness immediately N U due and payable, no prepayment premium shall be due. O 42. Entire Avreement. This Deed of Trust and all other loan documents embody the Z final, entire agreement of Grantor, Trustee and Beneficiary and supersede any and all prior commitments, agreements, representations and ui dertandings, whether written or oral, relating to the subject matter hereof and thereof and may not be contradicted or varied by evidence of prior, fF . 35 t' ( rl , s • contemporaneous or subsequent oral agreements or discussions of Grantor, Trustee and Beneficiary. There are no oral agreements between Grantor, Trustee and Beneficiary. 43. Maturity Date. The original stated Maturity Date of the Note is April 1, 2008. IN WITNESS WHEREOF, the Grantor has caused this Deed of Trust to be duly aecuted as of the day and year first -above written. GRANTOR: HUNS-1( PLAZA ASSOCIATES, LLI- By: • tho aaa Its: Managing Partner 11111111 1111111111111111111 111111111111111111111111 414180 40 201.00 D 0.00 N DT DAVIS 0.08 PITNIN CO x 1 - s 36 • . STATE OF COLORADO ) p • ) ss. COUNTY OF ) The foregoing instrument was acknowledged before me this : R day of March, 1998, by Anthony J. Mazza, the Managing Partner of Hunter Plaza Associates, LLP a Colorado !halted liability partnership, on behalf of said partnership. 43 a HI . sttlowY Rte M ( /,11YI115lIM 41225,8 L: C • - ' WARY • 'i - � 601 East HOPidro Notary Public +2. etoron Kpen,Cdw=do ��t• cw.... This instrument was dratted by: WINTHROP & WEINSTINE, P.A. 3000 pain Bosworth Plaza 60 South Sixth Street Minneapolis, Minnesota 55402 (612) 347-0700 MPL1: 331509 -1 1 111111 I I I ! ! 111111111111111 1111111111111111111111 4 560 ]/04/1000 Iilaia D7 tN0/IS sILVI 37 '� N R T0 1.00 0 0.00 N 0,00 ►I7NIN COta177 CO • • EXHIBIT TO DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FINANCING STATEMENT Grurtor. Hunter Plaza Associates, LLP Beneficiary: Norwest Bank Minnesota, National Association The Land described in the referenced instrument is located in Pitkin County, Colorado, and is described as follows: Lots K, L, M, N and 0, in Block 100, City and Townsite of Aspen Except the following portion thereof: A parcel of land being part of Lots K, L and M, Block 100, Aspen, Colorado. Said parcel is more fully described as follows: Beginning at the northwest corner of said Lot K; thence S 750 09'1 I" E 62.44 feet along the north line of Lots K, L and M to the center of a masonry wall; thence S 14o 50'49" W 32.24 feet along the center of said wall; thence N 75o 09'11" W 16.30 feet along the center of a masonry wall; thence S I4o 50'49" W 4.16 feet along the center of said wall; thence N 7',o 09'11" W 46.14 feet along the center of said wall to a point on the westerly line of said Lot K; thence N 140 50'49" E 36.40 feet to the point of beginning. 1111111 11111 11111 1111111111 11111 11111111111111 1111I I I I 414100 07/01/1090 11:398 DT ORVIS SILVI 30 of 40 R 201.00 D 0.00 N 0.00 PITKIN COUNTY 'JO • t b • • EXHIBIT B TO DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FINANCING STATEMENT Grantor. Hunter Plaza Associates, LLP Beneficiary: Norwest Bank Minnesota, National Association The Mortgaged Property is subject to the following encumbrances and no others: 1. Taxes and special assessments not yet due and payable. 2. Reservations and exceptions as set forth in the Deed from the City of Aspen recorded in Book 59 at Page 236 providing as follows: "That no title shall be hereby acquired to any mine of gold, silver, cinnabar or copper cr to any valid mining claim or possession held under existing laws ". 3. Terns, conditions, provisions, obligations and all matters as set forth in Party Wall Agreement recorded April 13, 1983 in Book 443 at Page 332 and in Common Wall Agreement recorded April 30, 1987 in Book 534 at Page 851. 4. All mattcrs as contained in Encroachment Agreement issuet by the City of Aspen recorded May 18, 1987 in Book 536 at Page 812. AEI 11111 11111111111 1111 11111 111111 III 11111 1111 1111 414110 03/04/1011 11:30A DT DAVIS 1ILVI 30 of 40 R 201.00 D 0.00 N 0.00 PITKIN COUNTY CO • CD C E 7 U EXHIBIT C - (. TO DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FINANCING STATEMENT 7 Additional Stipulations 3 y NONE 7 n' n 7 1 111 111111111111111111111111111111111111111111111111 414100 S3 /04 /IMS 1117/R DT DAVIS SILVI 40 of 40 R 101.00 0 0.00 N 0.00 PITNIN COUNTY CO 3 8 E_ CO C i 0) E. 0 U 0 N — 1 s .0 w. 0 T Y ' 1111111 11111 11111111111 111 I I I I 1 111111113111 I G 0 414101 03/04 /1110 11:3,8 UCCISI DAVIS SILVI W COLORADO ucc - i M COUNTY 1 •f 4 R 0.00 0 S. 11.10 PITKIN COUN CO L *spored weaned lerlenee sows Poen +' sw Res Ste 015 fling f It Surdla9.) 0 1ST DEBTOR N SSN /FED Tax ID .84- 1053432 Check Ora: GI Business T7 0 0 Personal y ' Name sat lq HUNTER PLAZA ASSOCIATES, LLP Street . 205 SOUTH MILL STREET, SUITE 301A City, State, Zip . ASPEN, CO 81611 For Fling Officer Use Only u 2ND DEBTOR 0 Additional debtor(s) on attachmsM COUNTY WHERE 1ST DEBTOR RESIDES C SSN /FED T a x ID . Check One: O Business Nee oylcoda Nu.raelcem PIP/ 99/57 C 0 Personal • N Namedalq L a. Street CHECK W APPLICABLE a.0 City State, Zip . 0 This statement is to N filed In the real C A estate records ONLX S 152 SEG.iRED ❑ Additional secured party on amehmerM ® This statement is to W filed in UCC AND "- PARTY real estate records. CU N NORWEST BANK MINNESOTA NATIONAL 0 The debtor is a transmitting utility. 0' ASSOCIATION Name\.,C Isi ' SIXTH STREET AND MARQUETTE AVENUE rL iv Street City, Sla[e, Zip MINNEAPOLIS, MN 55479 -0089 ATTN: JAMES R. WENKER EFS FILING? 0 Yes CS No ! s^an E/ nmr.,lns.Intl A SSIGNED PARTY 0 Additional assigned party on att aehmant age ae' � Cob owl Mal . — P E1. aq N ,1 ran cow* Md,WNW v • Name II.,I. Iq . c e . ~ CM D ow O Street a City, State. Zip . 10 0 F. RETURN COPY TO 034 ;E 040 ROGER D. GORDON 500 U WINTHROP & WEINSTINE, P.A. 550 0) 3000 DAIN BOSWORTH PLAZA • 600 L .. N " w '60 SOUTH SIXTH STREET 650 . ••w. ' MINNEAPOLIS MN 55402 Cn.sua.Zo 700 u COMPI,A,IF DE,S.GRo_Tl4N OF COLATERAL___ _Em N.. r 15 llnaledd' n.d e do c ed . do euSaab. mcadent d ,1 lt d45250 thnd* N IM be Wood We d,1 fa* e co* II THE TERM "COLLATERAL" FURTHER INCLUDES, BUT I5 NOT LIMLTED T0, ALL PROPERTY DESCRIBED IN EXHIBIT "A" ATTACHED HERETO. THE REAL PROPERTY COLLATERAL IS DESCRIBED ON :I SCHEDULE I ATTACHED HERETO. 11101 "ioi 1111111111 Iorn 1011 m //1111111 III . ,'/14102 03/01/1001 11:4111 FS DAVIS SILVI HUNTER PLA . ' •CIATES, LLP BY' ANTHONY J. MAZZA qwW Mwel" 1 ef'� R 15.00 D 0.00 N 0,00 PITKLN COUNTY CO w+ — 5- --' aw-nl.I !Coon* narael e,.1 MANAGING PARTNER Ts A 0i fIM,IO. \EI.[ 5 No. 02. Rt. 15-16. rumemO STATIMUR IVCC. II BMW. MM.MR, Ile Mow a., Nom CO kW - 11d)I7 i.' — lei i 111 sMnlwe dl lint I Plane WWI • 1 111111 11111 111111 111111 1111 1111 10111 111 11111 1111 1111 414162 63/64/1666 11:418 P5 DRYI$ SILYI 2 of 4 R 1e.ee a e.ee N e.ee PITKIN COUNTY CO - - EXHIBIT ADDITIONAL SHEET TO FINANCING STATEMENT Debtor: Hunter Plaza Associates, LLP 205 South Mill Street, Suite 301A Aspen, Colorado 81611 Federal Tax Identification No. 84- 1053432 Secured Party: Norwest Bank Minnesota, National Association Sixth Street and Marquette Avenue Minneapolis, Minnesota 55479 -0089 Attention: lames R. Wenker This Financing Statement covers the following types or items of property: 1 All of Debtor's right, title and interest in and to: (i) all of the buildings, structures and other improvements now standing or at any time hereafter constructed or placed upon the Land (the "Improvements'); (d) all lighting, heating, ventilating, air- conditioning, sprinkling and plumbing fixtures, water and power systems, engines and machinery, boilers, fumaces, oil burners, elevators and motors, communication systems, dynamos, : I transformer, electrical equipment, carpets, draperies, blinds and all other fixtures of every description located in or on, or used, or intended to be used in connection with the Land or any of the Improvements (excluding, however, fixtures owned by tenants occupying space in any building now or hereafter Located on the Land); (its) all hereditaments, easements, rights of way, appurtenances, riparian rights, rents, issues, profits, condemnation awards, mineral rights and water rights now or hereafter belonging or in any way pertaining to the Land or to any of the Improvements and all the estates, rights and interests of the Debtor in the Land; (iv) all cash funds, deposit accounts and other rights and evidence of rights of cash, now or hereafter created or held by Secured Party pursuant to the Mortgage (defined below) or any other of the Loan Documents (as defined in the Mortgage), including, without limitation, all monies now or hereafter on deposit in the Tax and Insurance Escrow Fund and the Replacement Escrow Fund (each as defined in the Mortgage); (v) all contracts and agreements now or hereafter entered into covering any part of the Mortgaged Property (as defined below) (collectively, the "Contracts') and all revenue, income and other benefits thereof, including, without limitation, management agreements, service contracts, maintenance contracts, equipment leases, personal property leases and any contracts or documents relating to construction on any part of the Land or the • Improvements (including plans, drawings, surveys, tests, reports, bonds and governmental approvals) or to the management or operation of any part of the Land or the Improvements; (vi) 111110 1E0 111111111111 1111 111111111 1111 414151 63/04/1666 31:368 UCC1e6 %VIS SILYI 2 of 4 R 6.66 O 6.66 N 16.00 PITKIN COUNTY CO 1 • E , 0 ..0 4, m E 111111111001111111 111111 1E1 0111111111 111111111111 1111 d• 414102 03/04/1010 11141A FS DAVIS SILVI L 3 of 4 1 16.06 0 0.00 N 0.00 PITNIN COUNTY CO all present and future monetary deposits given to any public or private utility with respect to utility services furnished to any part of the Land or the Improvements; (vii) all present and future funds, accounts, instruments, accounts receivable, documents, cau$es of action, claims, general • intangibles (including, without limitation, trademarks, trade names, service marks and symbols now or hereafter used in connection with any part of the Land or the Improvements, all names by OE which the Land or the improvements may be operated or known, all rights to carry on business under such names, and all rights, interests and privileges which Debtor has or may have as O developer or declarant under any covenants, restrictions or declarations now or hereafter relating to the Land or the Improvements), all architectural renderings, models, drawings, plans, 7 specifications, studies and data now or hereafter relating to the Land or the Improvements, all • notes or chattel paper now Or hereafter arising from or by virtue of any transactions related to the in Land or the Improvements, and all insurance policies or binders now or hereafter relating to the Mortgaged Property, including any unearned premiums thereon (collectively, the "General Intangibles "); (viii) all water taps, sewer taps, certificates of occupancy, permits, licenses, ✓ franchises, certificates, consents, approvals and ether rights and privileges now or hereafter C obtained in connection with the Land or the Improvements and all present and future warranties and guaranties relating to the Improvements or to any equipment, fixtures, furniture, furnishings, 'u. personal property Or components of any of the foregoing now or hereafter located or installed on i the Land or in the Improvements; (ix) all building materials, furniture, furnishings, equipment, supplies and all other personal property now or hereafter located in, or on, or used or intended to R be used in connection with the Land Or any of the Improvements and all replacements and t additions thereto (excluding personal property owned by tenants occupying space in the Improvements); (x) all additions, accessions, increases, parts, fittings, accessories, replacements, substitutions, betterments, repairs and proceeds to, of or for any and all of the foregoing; and I rr c (xi) any and all after-acquired interest of the Debtor in any of the foregoing, including the Land . (all of the foregoing, together with the Land and the Improvements are hereinafter referred to as 'e the "Mortgaged Property "). te ,y; As used herein, the term "Land" means the real property located in Pitkin County, Colorado, • 0 which is legally described as follows: , R .E SEE SCHEDULE I ATTACHED HERETO As used herein, the tens "Mortgage" means that certain Deed of Trust, Security Agreement and Fixture Financing Statement dated March -, 1998, from Debtor, as grantor, in favor of Secured Party, as beneficiary, as the same may be amendcd or supplemented from time to time. • ti U 0 MPLI: 71/6124 = 1111111111111111111111111111 . 414161 03/04/1090 111300 UCCI00 DAVIS SILVI 3 of 4 A 0.06 0 0.Co ti 16.06 PITKIN COUNTY CO 0 2- 0 • • SC14EE/11LE. The Land described in the referenced instrument is located in Pitkin County, Colorado, and is described as follows: Lots K, L, M, N and 0, in Block 100, City and Townsite of Aspen. Except the following portion thereof: 1 I A parcel of land being pan of Lots K, L and M, Block 100, Aspen, Colorado. Said parcel is more fully described as follows: Begiming at the northwest corner of said Lot K; thence S 75 E 62.44 feet along the north line of Lots K, L and M to the center of a masonry wall; thence S 1490'49" W 32.24 feet along the center of said wall; thence N 75' 09'11" W 16.30 feet along the center of a masonry wall; thence S 14 50'49" W 4.16 feet along the center of said wall; thence N 75 W 46.14 feet along the center of said wall to a point on the westerly line of said Lot K; thence N 14 E 36.40 feet to the point of beginning. • 1111!!' Hill 111111 111111 111111111 111111 III 1E311 III 4141.2 03/04/1000 11:41a FS DAVIS SILYI 4 of 4 R 11.00 D 0.00 N 5.00 PITMIN COUNTY CO 111111 1111111111 11111 1111 1111 11111 1 1 1 1111 11111111 414161 03/04/1004 11 :344 UCCIIO OOYIS SILYI 4 of 4 a 0.00 D 0.00 M 10.00 ►ININ COUNTY CO 4 3_ • 1111111 IIIII 111111 111111 II11 1111111111 111 1111 1111 414101 03/04/1000 11130A UCC100 DAVIS SILVI COLORADO UCC -1 1 of 4 ft 0.00 D 0.00 N 11.00 PITKIN COLWTY CO banned by Centel Wiling tam BOW 1br1 Fee 311 1315 Fang + 11 Surcharge) 1ST DEBTOR SSN /FED Tex ID .84- 1053432 Check One: Ci Business 0 Personal Name NA - RIMER PLAZA ASSOCIATES. LLP Street . 205 SOUTH MILL STREET, SUITE 301A City, State. Zip . ASPEN, CO 81611 For Fling Officer Use Only 2ND DEBTOR ❑ A41dNbn$I eabtor(s) on attachment COUNTY WHERE 1ST DEBTOR RESIDES SSW/FED T a x I D . Check One: 0Business cue 2OVI Gob nn. enbUtLLnlrel.l 99/57 0 Personal Name n.nlm • CHECK IF APPLICABLE • C i ty . S City, State. Zip ❑ This statement is to be filed In the real estate records ONLY. 1ST SECURED 0 Addltlonal secured party on attachment ®TNs statement is to be filed In UCC AND PARTY real estate records. NORWEST BANK MINNESOTA, ASSOCIATION 0 The debtor 3 a bensnVttin9 utility. Name n.,. SIXTH STREET AND MARQUETTE AVENUE Street ' MINNEAPOLIS, MN 55479-0089 EFS FILING? 0 Yes ES No City. State. Zip • ATTN: JAMES R. WENNER Ow ert sm. eheearrnntn p rs sne w ta,y Cer N,rre r,e ASSIGNED PARTY 0 Additional assigned party on attaotimint a re worn neeeee.wee" tree Same n..tl cased a or ore Street 010 _ City. State, Zip 030 RETURN COPY TO 034 040 ROGER D. CORDON 500 WINTHROP & WEINSTINE, T.A. 550 _ 3000 DAIN BOSWORTH PLAZA • 600 '60 50U1.. 5IXTH STREET 650 'MINNEAPOLIS, MN 55402 Ton CM, WM. Ie QQ MPLETEDESCRIPTIQNQFCOLLATE_RAL _.__ !@4""! ----_—. (oesaeson°reedcrib or mart obese do rot el,weelf Serb. m✓wet OAr IV 250 arras M r wafts NO MOM e•••1 THE TERM "COLLATERAL" FURTHER INCLUDES. BUT IS NOT LIMITED TO. ALL PROPERTY DESCRIBED IN EXHIBIT "A" ATTACHED HERETO. THE REAL PROPERTY COLLATERAL IS DESCRIBED ON SCHEDULE I ATTACHED HERETO. 1 11111111111111111 111111111111111111111 1111111 1111 1111 414162 03/04/1900 11:41A FS DAVIS SILVI • HUNTER ?LA CIATQ E5. LLP 1 of 4 R 16.00 0 0,00 N 0.00 PITKIN COUNTY CO • 31_, Z l,e.r h„I wawa Meow ANTHONY J. MAZZA ewl,.xee�,t Were Mm4 MANAGING PARTNER a. on.n•V. a FAX NIP. 68]. M. 10.36. FINANCING SrAtrlftM lVCC.n .... PoM..in. I PO %We 'lew CO NW] — (10341nJ!A1 - 181 111 ACOIny el See V1114 Mewl • 1 111111 11111 11111 111111 1111 111 111 111 1111 414102 03/04/1100 1311" FS DAVIS SILYI 2 a 4 N 10.00 0 0.00 N 0.00 PITNIN COUNTY CO EXHIBIT A ADDITIONAL SHEET TO FINANCING STATEMENT Debtor: Hunter Plaza Associates, LLP 205 South Mill Street, Suite 301A Aspen, Colorado 81611 Federal Tax Identification No. 841053432 Secured Party: Norwest Bank Minnesota, National Association Sixth Street and Marquette Avenue Minneapolis, Minnesota 55479 -0089 Attention: James R. Wenker This Financing Statement covers the following types or items of property: All of Debtor's right, title and interes: in and to: (i) all of the buildings, structures and other improvements now standing or at any time hereafter constructed or placed upon the Land (the "Improvements "); (ii) all lighting, heating, ventilating, air - conditioning, sprinkling and plumbing fixtures, water and power systems, engines and machinery, boilers, furnaces, oil burners, elevators and motors, communication systems, dynamos, transformers, electrical equipment, carpets, draperies, blinds and all other fixtures of every description located in or on, or used, or intended to be used in connection with the Land or any of the Improvements (excluding, however, fixtures owned by tenants occupying space in any building now or hereafter located on the Land); (ii) all hereditaments, easements, rights of way, appurtenances, riparian rights, rents, issues, pmfits, condemnation awards, mineral rights and water rights now or hereafter l elonging or in any way pertaining to the Land or to any of the Improvements and all the estates, rights and interests of the Debtor in the Land; (iv) all cash funds, deposit accounts and other rights and evidence of rights of cash, now or hereafter created or held by Secured Party pursuant to the Mortgage (defined below) or any other of the Loan Documents (as defined in the Mortgage), including, without limitation, all monies now or hereafter on deposit in the Tax and Insurance Escrow Fund and the Replacement Escrow Fund (each as defined in the Mortgage); (v) all contracts and agreements now or hereafter entered into covering any part of the Mortgaged Property (a, defined below) (collectively, the "Contracts') and all revenue, income and other benefits th_reof, including, without limitation, management agreements, service contracts, maintenance contracts, equipment leases, personal property leases and any contracts or documents relating to construction on any part of the Land or the Improvements (including plans, drawings, surveys, tests, reports, bonds and governmental approvals) or to the management or operation of any part of the Land or the Improvements; (vi) 11111111 11111 1E1E1E1 1111 11111 111M 1E1 II 1111 414101 03/04/1000 11t310 UCCIOO DAVIS SILVI 2 .f 4 0 0.00 0 0.00 N 10.00 PITNIN COUNTY CO - I 1111100 VIII 11111 111111 1111 11111 111111 III 11111 1111 1111 424102 03/04/1100 11,418 FS DAIS SILVI 3 of 4 R 15.00 D 0.011 N 0.00 AITKIN COu CO all present and future monetary deposits given to any public or private utility with respect to utility services furnished to any part of the Land or the Improvements; (vii) all present and future funds. accounts, instruments, accounts receivable, documents, causes of ac n n, l d g�� intangibles (including, without limitation, trademarks, trade names, es now or hereafter used in connection with any part of the Land or the Improvements, all names by which the Land or the Improvements may be operated or known, all rights to carry on business under such names, and all rights, interests and privileges which Debtor has or may have as ting developer or declarant under any covenants, restrictions or declarations models, h eawines r A to the Land or the Improvements), all architectural renderings, specification, studies and data now or hereafter relating to the Land or the Improvements, all notes or chattel paper now or hereafter arising from or by virtue of any transactions related to the Land or the Improvements, and all insurance policies or binders now or hereafter relating to the Mortgaged Property, including any unearned premiums thereon (collectively�te, Bermes, Intangibles"); (viii) all water taps, sewer taps, certificates of occupancy, hereafter franchises, certificates, consents, approvals and other rights and privileges pew or obtained in connection with the Land or the Improvements and all present and warren g� and guaranties relating to the Improvements or to any equipment, fixtures, personal property or components of any of the foregoing now or hereafter located or installed on (ix) all building materials, furniture, furnishings, equipment, the Land or in other Improvements; property i ) supplies and all other personal property now or hereafter located in, or on, or used or intended to be used in connection with the Land or any of the Improvements and all replacements n the additions thereto (excluding personal property owned by tenants occupying space in the Improvements); (x) all additions, accessions, increases, parts, fittings, accessories, replacements, substitutions, betterments, repairs and proceeds to, of or for any and all of' the foregoing; and (xi) any and all after- acquired interest of the Debtor in any of the foregoing, including the Land (all of the foregoing, together with the Land and the Improvements are hereinafter referred to as the "Mortgaged Property "). As used herein, the term "Land" means the real property located in Pitldn County, Colorado, which is legally described as follows: SEE SCHEDULE I ATTACHED HERETO As used herein, the term "Mortgage" means that certain Deed of Trust, Security Agreement and Fixture Financing Statement dated March -, 1998, from Debtor, as grantor, in favor of Secured Party, as beneficiary, as the same may be amended or supplemented from time to time. wrt.l'13661 2.3 1 111111 11111 111111 1111131 VIII 111111 111 VIII 1111 1111 414101 03/04/1000 11:304 UCCSO DAVIS 0ILVI 3 of 4 R 5.00 D 0.00 N 10.00 PITNIN COUNTY CO Z. • m.- 0 E E • a) a) m 0 E 0 0) SCT3EDIJLEI 0 >' To. The Land described in the referenced instrument is located in Pitkin County, Colorado, and is described as follows: N / ( Lots K, L, M, N and 0, in Block 100, City and Townsite of Aspen. Except the following portion thereof: o A parcel of land being part of Lots K, L and M, Block 100, Aspen, Colorado. Said parcel is more fully described as follows: Beginning at the northwest comer of said Lot K; thence S 75 09'11" E 62.44 feet along A the north line of Lots K, L and M to the center of a masonry wall; ;hence S 14' 50'49" W 32.24 feet along the center of said wall; thence N 75' 09'11" W 16.30 feet along the center of a masonry wall; thence S 14 50'49" W 4.16 feet along the center of said wall; thence N 75° 09' 11" W 46.14 feet along the center of said wall to a point on the westerly line of said Lot K; thence N 14°50'49" E 36.40 feet to the point of beginning. .1 4 V 110010 00111 111111 11110 1111 1011 1 1111 1 111111111 11111111 7 4 N 4 R 16.61 D 6.66 N 0.00 PITKIN CORM CO I 1111 1 11111 1111111 11111 11111 1111 111 11111111 1 111 4 of 4 R 6.06 0 6.06 N 16.66 PITKIN COUNTY CO -3- S • i . 4, : ,,,r � l 11��1 //01111111 ��1� � lillll � 1 0( 1111 1111 111 UCC-3 STATEMENT OF CHANGE 0 00 0 0 tl7090 11/22/1900 09:214 �� ucc207 �� DAMS SILYI COLORADO UCC -3 •$ by is per box. $l S indexing system aaerd - ` 1 ef. 1 It 0 , .0 N 15.00 PITKIN COUNTY Co s15 per VCnarye ., a Total Fe ] : -. �_I Fa flats Oalcv lbe a4y .. • r' ' 1ST DEBTOR (Put addtional debtors an ettatment) ' x '' - "`ORIGINAL UCC FILING NUMBER s y , • SSNIFED Tax ID 8a- 10532 43 Original Filing Number 414161 I Name ne.'n Hunter Plaza Associates, LLP Date &Time of Fling 3/4/96 11.36ad Street 205 South Mill Street, Suite 301A Filing Officer of Ono Doc 57 `d As CO 81611 • City, Stale, Zip County Book Number County Page Number Real Estate Filing Number 414152 iii ,j 1ST SECURED PARTY (Put additional secured parties on attachment) � I - - COUNTY WHERE 1ST DEBTOR RESIDES • Name run. ' Morgan Stanley Mortgage Capital Inc. ene20wI Coes Fmm Insmc+bn Pape) Street 1585 Broadway, 37th Floo 57 ,� City. Slate. Zip New York, NY 10036 'I CO I CHECK IF APPLICABLE - i Ts ASSIGNED PARTY I (Put additional assigned parties on attachment) This statement is to be recorded in the . county real estate records ONLY. - J X T his statement is to be recorded in real t J Name rte.'s': LaSalle National Bank, as Trustee estate AND UCC records. . Street c/o Midland Loan Services, 210 west 10th or City, State, Zip Street EFS FILING? 1 YES [] NO N i, Kansas City, MO 64:05 (II it0A EFS Fee, On waaencddea.SI 16 EFS Meg. enee Count, Cone nn once. dst.. In ;FS nap and as vearl caven.d W.n dates Y.s.v! RETURN COPY TO ' cg Collateral County From To A • Code Code Date Date - . w ^ a Eric Ziegenhorn. Esq. seer Courtyard Suites Cry Mate rn 104 Vietnam Veterans memorial Drive Kansas City, MO 64111. ' - - -' -"_ -- - - - "' '':ad AMENDMENTS: ASSIGNMENTS a dd 4 e r e - •. This is A full and complete assignment of all collateral CHECK THE APPROPRIATE SOX e acn l as described in the original :ranting statement. , CMAC 1996 01 MLS* 03- 0219472 — TERMINATION • ' RELEASE OF COLLATERAL AMENDMENT Alter Recording. Return To: X TOTAL ASSIGNMENT Richardson Consulting Group. Inc. _ PARTIAL ASSIGNMENT . 505A San Merin Drive. *110 I . Novato. CA 94945 . Not Required Morgan Stanley Mortgage CaFi tat 1 rte. _/-tcc _IrtS.lde - .___ Rt.:S!es4 FILING OFFICER 2t0' °""! o • . o • b • • . } I I 1 111111011111111 111111 110111111 11111 1110 11111111111 414200 03/04/1001 04111P 1 of 11 R 94.00 0 8.00 N 0.00 PITCIN I $SIL CO i PEN ASSIGNMENT OF RENTS AND LEASES PLAZA This Assigoraent is made this day of March, 1998, by and between HUNTER PLAZA , ASSOCIATES, 1.12, a Colorado limited liability partnership having its principal place at 205 South 14 11 Street, Suite 301A, Aspen, Colorado 81611 (hercalled e the tt"Msig r NORWES7 BANK Mi b�� T'NESOp of business ,t Sixth Street and Marquette Averme, yin na L s, Minnesota its principal 5 5479 place 1vlirmpGiae - 0089 (herein called the "Assignee'. IT i BE IT;.I� 1 7 The Assignor has executed and delivered to the Assignee its promissory note of even date c , , herewith in the principal amount of 53,000, — 000, u the same ray be renewed, extended, modified t „ 1' or any note shall be issued in substitution therefor (the "Note "). re or has executed and delivered to the Assignee a Deed To secure payment of the Note, the Assign of even date herewith (as the same S_t { • o f Trust, Security Agreement and Fixture Financing Statement a covering the may hereafter be amended or supplemented from time to time, the 'Mortgage"), cov the real Mortgaged Property (as defined in the Mortgage) which, among other things, estate described in Exhibit A attached hereto (the " Land ") and the buildings and improvements now or hereafter located thereon (collectively, the 'Improvements' and the Land and the Improvements are hereinafter sometimes collectively referred to u the "Property "). The Assignee, as a condition to making the loan evidenced by the Note, has required the execution of this Assignment ACCORDINGLY, in consideration of the premises and in further consideration of the sum of One Dollar paid by the Assignee to the Assigner, the receipt of which is hereby acknowledged, the Asspor does hereby pant transfer and assign to the Assignee all of the right, title and interest of the Assignor in and to (1) any and all present or More leases or tenancies, whether written or oral, covering or affecting any part of or all of the Property (all of which, together with any and all referred to as the extensions, modifications and renewals thereof, ' are hereinafter d1 guaranties thereof, and G7 "Leases" and each of which is referred to u • "Lease') and Y i L all rents, fees, charges, profits and other income or payments of any kind due or payable le or or to to or become due or payable to the Assignor 3 the thleousen possession or occupancy of any personal property " ) any part of the Property but not limited to, minimum rents, constituting a put of the Mortgaged Property rents, additional rents, , perrcentage a rents, , d efiuency rents s, se security deposits and liquidated damages following default under Lenses, all proceeds payable under any policy of insurance covering loss , s • Z 1 111111 Ili 1 11111 111 11111 111 1111 P 1 414280 07/04/1004 e4i1tP AWN UN DAMS CSLV2 2 of 11 4 00.00 D 0.00 N 0.07 PITNIN COUNTY CO of rents resulting from untenantability caused by damage to any part of the Property, and all of Assignor's rights to recover monetary amounts from any tenant in bankruptcy including, without limitation, rights of recovery for use and occupancy and damage claims arising out of defaults under Leases, including rejection of a Lease) (all of which are hereinafter collectively referred to as 'Rents "), whether the Rents aware before or after foreclosure of the Mortgage or during the periods of redemption tbaeof all for the purpose of securing: (a) Payment of all indebtedness evidenced by the Note and all other sums secured by the Mortgage or this Avignment; and (b) Performance and discharge of each and every obligation, covenant and agreement of the Assignor contained herein and in the Mortgage - - e Assignor represents and warrants to Assignee that (a) Assignor is the sole owner of the entire lessor's interest in the Leases; (b) the Leases are valid, enforceable and in full force and effect and have not been altered, modified or amended in any manner whatsoever except as disclosed in writing to Assignee; (c) neither the interest of Assignor in the Leases nor the Rents under the Leases have been assigned or otherwise pledged or hypothecated; (d) none of the Rents have been collected for more than one (I) month in advance; (e) Assignor has full power and authority to execute and deliver this Assignment and the execution and delivery of this Assignment has been duly authorized and does not conflict with or constitute a default under any law, judicial order or other agreement affecting Assignor or the Properly, (f) the premise:: eternised under the Leases have been completed and the tenants under the Leases have accepted the sane and have taken possession of the same on a rent- paying basis except as explicitly identified on the certified rent roll dated February 26, 1998, delivered by Assignor to Assignee; and (g) there exist no offsets or defenses to the payment of any portion of the Rents. Assignor covenants with Assignee that Assignor (a) shall observe and perform all of the obligations imposed upon the lessor under the Leases and shall not do or perndt to be done anything to impair the value of the Leases as security for the indebtedness evidenced by the Note and all other sums secured by the Mortgage and this Assignment; (b) shall promptly send to Assignee copies of all notices of default which Assignor shall receive under the Leases; (c) except in connection with the exercise by Assignor of its remedies upon a default by tenant thereunder, shall not collect any Rents more than one (1) month in advance; (d) shall not execute any other assignment of lessor's interest in the Leases or the Rents; (e) shall execute and deliver at the request of Assignee all such further assurances, confirmations and assignments in connection with the Leases, the Rents and the Property as Assignee shall from time to time require; (f) shall deliver to Assignee, upon request, tenant estoppel certificates 6 out each commercial tenant of the Property in form and substance reasonably satisfactory to Assignee (provided, however, that Assignor shall not be required to deliver such certificates more frequently than two (2) times in any calendar year); and (g) shall deliver to Assignee, at Assignee's request, executed copies of all Loves now existing or hereafter arising. Assignor further covenants with Assignee that Assignor (a) shall promptly send to Assignee copies of all notices of default which Assignor shall send to tenants under the Leases; (b) shall -2- 11!1111 IIIII Iilll! 111111 1111 1111E 11111 III IIIII 1111 1111 401200 07/04/1000 04:11? Nun RD DAVIS SILVI 7 of tt 0 00.00 O 0.00 K 0.00 PITKIN COUNTY CO enforce all of the terms, covenants and conditions contained in the Leases upon the part of the tenants thereunder to be observeu or performed, short of termination thereof, (c) shall not alter, modify or change the terms of any Luse without the prior written consent of Assignee (unless such alteration, modification or change satisfies the Non - Approval Conditions described below for alteration, modifications or changes with respect to Leases), (d) shall not cancel or terminate any Lease or accept a surender thereof or take any other action which would effect a merger of the estates and rights of, or a termination or diminution of the obligations of, the tenant thereunder (unless such cancellation, tenninstion, surrender or other action satisfies the Non - Approval Conditions described below for cancellations, terminations, surrenders and other similar actions with respect to Leases); provided, however, that any Lease may be cancelled if at the time of canclion thereof a new Lease is entered into an substantially the same terms or more favorable j el " tams as the cancelled Lease; (e) shall not alter, modify or change the terms of any guaranty of . any of the Leases or cancel or terminate any such guaranty without the prior written consent of Assignee; (1) shall not consent to eny assignment of or subletting under the Leases not in accordance with their terms, without the prior written consent of Assignee; and (g) shall not waive, release, reduce, discount or otherwise discharge or compromise the payment of any of the Rents to accrue under the Leases. Assignor further covenants with Assignee that (a) upon request, Assignor shall furnish Assignee with executed copies of all Leases; (b) all renewals of Leases and all proposed Leases shall provide for rental rates comparable to existing local market rates and shall be arm's -length transactions; and (c) all Lease shall provide that (i) they are subordinate to the Mortgage and any other indebtedness now or hereafter secured by the Property, (u) tenants agree to attorn to Assignee (such attornment to be effective upon Assignee's acquisition of title to the Property), (iii) tenants agree to execute such further evidences of attornment as Assignee may from time to time request, (iv) the attornment of tenants shall not be terminated by foreclosure, (v) Assignee may, at Assignee's option, accept or reject such attomment, and (vi) tenants agree to furnish, two time in any calendar year, as Assignee may reques„ a certificate signed by tenant confining and containing such factual certifications and representations deemed reasonably appropriate by Assignee The following terms and provisions (the 'Non - Approval Conditions ") shall apply, in the case of (a) below, to alterations, modifications or changes to Leases, and, in the case of (b) below, to cancellations, terminations, acceptances of surrender or other similar actions with respect to Leases: .{ (a) Assignee's consent shall not be required for Assignor's alteration, modification or fi i change of a Lease if (i) the Lease to be modified does not involve more than 10.0% of the # rentable square feet of the Property, nor provide more than 10.0% of the gross rent S payable under all Leases at the Property, (ii) such alteration, modification or change j (together with all prior, alterations, modifications and changes of such Luse made 1 without Assignee's consent) do not materially decrease the obligations of tenant nor materially increase the obligations of the lessor, and (iii) such alteration, modification or change (together with all prior alterations, modifications or changes of Leases made 1 without Assignee's consent) will not adversely affect the Property, Assignee, or Assignor's 3- , t I 1 4 ' d i 1 111111 11111 111111 111111 1111 111111 0111 111 111 1111111 414204 03/04/1908 44:11P AWN 90I DOVIS SILT' 4 H 11 R 91.:.4 D 0.90 N 0.09 PITKSN COUNTY co ability to fulfill its obligations under the Loan Documents (other than to a d9 Sings extent). . 1 (b) Assignee's consent shall not be required for Assignor's cancellation, termination acceptance of surrender or other similar actions with respect to a Lease if (i) the tenant under such Lase is in default beyond all applicable notice and grace periods, (d) the Lease I does not involve more than 10.7% of the rentable square feet of the Property, not provide more than 10.7% of the gross rent payable under all Leases at the Property, and (h') such cancellation, termination acceptance of surrender or other similar action will not adversely affect the Property, Assignee, cr Assignor's ability to fulfill its obligations under the Loan Documents (other than to a de minima extent). t' If an Event of Default (as defined in the Mortgage) has occurred and is continuing, Assignor shall not alter, modify, change, coal, terminate, accept surrender or other similar action with respect f to any Lease without the Assignee's consent. 1! If an Event of Default has occurred and is continuing, Assignor shall not enter into a new Lease without the Assignee's consent unless (i) such Lease does not involve more than 10.0% of the rentable square feet of the Property, nor provide more than 10.7% of the gross rent payable under all Leases at the Property, (G) such Lease will not adversely affect the Property, Assignee, or Assignor's ability to fulfill its obligations under the Loan Documents, (h') such Lease is the result of an arms -length transaction and provides for rental rates comparable to existing market rates, 1 (iv) such Lease does not contain any terms which would materially affect Assignee's rights under this Assignment or the other Loan Documents, and (v) the tam of such Lease (including any renewal or extension term) shall be no less than three (3) years and no more than ten (10) years, except that in the case of a multifamily property, such term shall be no less than six (6) months. The Assignor further covenants and agrees with the Assignee as follows: 11 I. Protecting the Security of This Assignment. Should the Assignor fail to perform or observe any covenant or agreement contained in this Assignment, then the Assignee, but without obligation to do so and without releasing the Assignor from arty obligation hereunder, may make or do the same in such manner and to such extent as the Assignee may deem appropriate to protect the security hereof, including, specifically, without limiting its general powers, the right to appear in and defend any action or proceeding purporting to affect the security hereof or the rights or powers of the Assignee, and also the right to perform and discharge each and every obligation, covenant and agreement of the Assignor contained in the Leases and in exercising any such powers to pay necessary costs and expenses, employ counsel and pay reasonable attorneys' fees. The Assignor will pay irnmcliately upon demand all sums expended by the Assignee under the authority of this Assignment, together with interest thereon at the Default Rate stated in the Note, and the same shall be added to said indebtedness and shall be secured hereby and by the Mortgage. 2. Present At sienment. This Assignment shall constitute a perfected, absolute and present assignment, provided that the Assignor shall have the right to collect, but not prior to accrual q_ d • miii 11111 1111 Ill 111 unit II III 111111 MI • 5 of 11 It 56.00 0 0.55 II 0.50 PTTKIM COUNT CO (except as permitted by the covenants set forth above), all of the Rents, and to retain, use and enjoy the same unless and until en Event of Defauh shall occur under the Mortgage Assignor shall have breached any warranty or covenant in this Assignment Any accrue prior to an Event of Default under the Mortgage but are paid thereafter shall be paid to the Assignee. This Assignment is given as security in addition to the security of 3. ion Af rights, and powers conferred or granted hereby may be exercised w e Mortgage. no AB proceedings s, or have been concluded and { . whether or not Assignee has to er ci s edso the Mortgage are right, remedy or power evadable to it un der or not t Assignee t d ort s hee or enforced any hall r not right, required to resort first to the it security or this reign to the of the Assignee age before a ee l not ge to the of the other, or aeauit}• cf this Assignment or of the Mortgage before resorting to the security any other security, and Assignee may exercise the security hereof and of the Mortgage, and any • other security conaurently or independently and in such order or preference as it desires. ,l• • . u • s ... • , • Iles Assianrnsat. All of the q ,: I a. •.� Assignofs obligations under this Assignment shall survive foreclosure of the Mortgage. and Assignor covenants and agrees to observe and comply with all terms and conditions of this Assignment throughout any period of redemption after foreclosure of the Mortgage. . 5 e ' n of Specific Leaiet. If Assignee at any time shall request in writing, Assignor will at its own cost and expense execute, deliver and record nc d an instrument of further assuna k assigning, sign ing. or confirming the assignment af, one or more specific Leases, Rents or other interests transferred hereby. But the failure of Assignee to request or procure or record such an instrument of further assurance shall not affect or impair the validity or efficacy of this Assignment as it applies to wry such interest. 6. Defauh Remedies. Upon the occurrence of any Event of Default specified in the j Mortgage or upon the breach of any warranty or covenant in this Assignment, Assignee may, at i { its option, at any time during the continuance of such Event of Default or breach: i a. Give written notice to any and all tenants under Leases, directing them to pay • in in Rents due or to become due under the Leases directly toAssignee. r n sS Ass r o will loons in givi such notice, if requested to do so by Bn no to giving such notice, it hereby authorizes and instructs any t recejthgg such notice that Assior pay any and all Rents due or become due h t tenant's ob igations with respect to the such payment to Assignee shall discharge such Rents so paid, as fully as if paid to Assignor itself, b. Sue for, collect, settle or compromise any claim for any or all Rents, including actions for the recovery of Rent and actions nfunlawful detainer, . c. Enter upon, and take possession, use, and enjoyment of the Mortgaged Property • and the Rents therefrom, Assignor hereby agreeing to surrender the same to Assignetaand Assignee being marled to take actual possession of the Mortgaged Property, or any part 5. . • II 1 11111 1111 lilt 1111 111 Ott OH 11 1111 111 1111 • 414210 113/114/1111111 04111P RUN RD1 of 11 R MAW 0 0.00 N 0.00 PI71CIN COUNTY CO thereof, personally or by its agents or attorneys, with or without force and with or without process of law; enter upon and take and maintain possession of any and all documents, books, records, papers and account; of Assignor, Assignee being further entitled to exclude Assignor, its agents or servants, wholly therefrom; d. Hold, operate, manage and control the Mortgaged Property and conduct the business thereof, either personally or by its agents, with full power to use such measures, legal or equitable, as in its discretion, or in the disaetion of its successors or assigns, it � may deem proper or necessary, t e. Make, or modify Leases with any party or parties at such Rent and upon such 1 terms as in its discretion Assignee may determine, enforce and discharge Leases including i the fidl power to cancel or to terminate any Lease or sublease for any cause ct or ot�� tune, ground which would have entitled Assignor to cancel the obtain and elect to disaffirm any Lease or sublease inade subsequent to the aforesaid Mortgage or subordinated to the lien thereof, f. Make all necessary and proper repairs, decoratieg, renewals, replacements, alterations, additions, betterments and improvements to the Mortgaged Property that may seem judicious in Assignee's discretion; ■ g. Insure and reinsure the Mortgaged Property for all risks incidental to Assignee's 1 possession, operation and management thereof; 4. h. Draw upon, use and take possession of any account containing tenant security deposits to return said deposits to tenants or otherwise dispose of said deposits as provided by Lease or applicable law, i. In each of the above, do so without notice and with or without bringing any action or proceeding, and by Assignee's own employees or by a property management firm or corporation; i j Apply to a court for the appointment of a receiver without any showing of waste of the Mortgaged Property, inadequacy of the Mortgaged Property as security or F 1 insolvency of Assignor, to which appointment Assignor hereby consents; and k. Exercise and enforce any or all other rights or remedies available to Assignee .: t under the Mortgage or otherwise available at law, in equity or by agreement. Assignor hereby consents to entry of a mandatory injunction requiring it to give effect to this Assignment. The exercise of any of the foregoing rights or remedies and the application of the rents, fees, charges, profits and income pursuant to paragraph 7, shall not cure or waive any Event of Default (or notice of Default) under the Mortgage or invalidate any act done pursuant to such er the notice, or preclude Assignee from exercising any right or remedy ava i l rtee i to exit un deg any Mortgage, the Note, or otherwise by law or agreement. My delay by g 6 • y [. 1 1 1 111111111111 INNI II 11111111111E11 111111111 lilt 7 of 11 R SIAM a e.ee w e.ee P1TKIw cowry co right, remedy or power described or referred to in this paragraph or elsewhere in this Assignment shall neither be a waiver of nor preclude the exercise of such right or remedy. All such rights, remedies and powers shall be distinct and cumulative and may be exercised singly or serially an any order) or concurrently, and as often as the occasion therefor arises. • 7. Application of Rema. All Rents collected by the Assignee or the receiver each month shall be applied as follows: a. to payment of all reasonable fees of the receiver approved by the court; b. to payment of all tenant security deposits then owing to tenants under any of the Leases pursuant to the provisions of applicable Calorado law; c. to payment of all prior or current real estate taxes and special assessments with respect to the Mortgaged Property, or if the Mortgage requires periodic escrow payments for such taxes and s••«a++ to the escrow payments then due; } S } d. to payment of all premiums then due for the insurance required by the provisions of the Mortgage, or if the Mortgage requires periodic escrow payments for such premiums, to the escrow payments then due; e. to payment of expenses incurred for normal maintenance of the Mortgaged Property, f. if received prior to any foreclosure sale of the Mortgaged Property, to the Assignee for payment of the indebtedness secured by the Mortgage or this Assignment, but no such payment made after acceleration of the indebtedness shall affect such acceleration; g. if received during or with respect to the period of redemption after a foreclosure sale of the Mortgaged Property: i. if the purchaser at the foreclosure sale is not the Assignee, first to the Assignee to the extent of any deficiency of the sale proceeds to repay the indebtedness secured by the Mortgage or this Assignment, second to the purchaser as a credit to the redemption price, but if the Mortgaged Property is not redeemed, then to the purchaser of the Mortgaged Property; ii. if the purchaser at the foreclosure sate is the Assignee, to the Assignee to the extent of any deficiency of the sale proceeds to repay the indebtedness secured by the Mortgage or this Assignment and the balance to be retained by the Assignee as a credit to the redemption price, but if the Mortgaged Property is not redeemed, then to the Assignee, whether or not any such deficiency exists. • 7 1 111111 11111 111111 111111 1111 1111 1111 111 11111 1111 414211 03/04/1111 04111P AWN IILN DAVIS SILVI 1 .f 11 1 55.00 0 0.10 11 1,11 PI11[IN COUNTY CO The rights and powers of the Assignee Under this Assignment and the application of Rents under this paragraph 7 shall continue until expiration of the redemption period from any foreclosure sale, whether or not any deficiency remains after a foreclosure sale. 8. Nn 1 iability for Assignee. The Assignee shall not be obligated to perform or discharge, nor does it hereby undertake to pafonn or discharge, any obligation, duty or liability of the Assignor under the Leases. This Assignment shall not operate to place upon the Assignee respoaability for the control, care, management or repair of the Mortgaged Property or cattying out of any of the terms and conditions of the Leases. The Assignee shall not be resonable or Gable for any waste committed on the Mortgaged Property, for any dangerous or defective condition of the Mortgaged Property, for any negligence in the management, upkeep, repair or control of the Mortgaged Property or for failure to collect the Rents. 9. toignoturgleMnifigfil0.2. The Assignor shall and does hereby agree to indemnify and to hold the Assignee harmless of and from any and all claims, demands, liability , loss or damage (including all costs, expenses, and reasonable anorney's fees in the defense thereof) asserted against, imposed on or incurred by the Assignee in connection with or as a result of this Assignment or the exercise of any rights or remedies under this Assignment or under the Leases or by reason of any alleged obligations or undertakings of the Assignee to perform or discharge any of the terms, covenants or agreements contained in the Leases other than any such claims, demands, liability, loss or damages arising solely from the Assignee's willful misconduct or gross negligence. Should the Assignee incur any such liability, the amount thereof, .together witb interest thereon at the Default Rate stated in the Note, unless payment of interest at such rate would be contrary to applicable law, in which event such sums shall bar interest at the highest rate permitted by applicable law, shall be secured hereby and by the Mortgage and the Assignor shall reimburse the Assignee therefor immediately upon demand. 10. Authorisation to Tenant. Upon notice from the Assignee that it is exercising the remedy ?`. set forth in paragraph 6(a) of this Assignment, the tenants under the Leases are hereby irrevocably authorized and directed to pay to the Assignee all sums due under the Leases, and the Assignor hereby consents and directs that said sums shall be paid to the Assignee without the necessity for `w a judicial determination and without any other inquiry as to whether an Event of Default has occurred under the Mortgage or a breach of any warranty or covenant has occurred hereunder or that the Assignee is entitled to exercise its rights hereunder, and to the extent such sums are paid to the Assignee, the Assignor agrees that the tenant shall have no further liability to the Assignor for the same. The signature of the Assignee alone shall be sufficient for the exercise of any rights undo this Assignment and the receipt of the Assignee alone for any sums received shall be a full discharge and release therefor to any such tenant or occupant of the Property or any part thereof. Checks for all or any part of the Rents collected under this Assignment shall upon notice from the Assignee be drawn to the exclusi-ne order of the Assignee. From and after the giving of such notice, any Rents received by Assignor shall be held in trust by Assignor, and Assignor shall promptly pay such Rents to Assignee to be applied by Assignee in accordance with paragraph 7 above. 8 AIM 11111111111111111 I m I 1 111111 414200 01/04/1000 04111P ASSN MEN OIIYIS S1LYI 0 of 11 R 00.00 0 0.00 N 0.00 PIM1N COOT' CO 11. Satisfaction. Upon the payment in full of all indebtedness secured hereby as evidenced by a recorded satisfaction of the Mortgage executed by the Assignee, this Assignment shall, without the need for any further satisfaction or release, become null and void and be of no further effect. 12. Aygvnran Attomev -In -Fact. The Assignor hereby irrevocably appoints the Assignee, and its successors and assigns, as its agent and attomey -in -fact, which appointment is coupled with an interest, with the right but not the duty to exercise any rights or remedies hereunder and • to execute and deliver during the term of this Assignment such instruments n the Assignee may deem appropriate to make this Assignment and any further assignment effective, including without limiting the generality of the foregoing, the right to endorse on behalf and in the name of the Assignor all checks from tenants in payment of Rents that are made payable to the Assignor. 13. Asstttlee Not a Andante in Possession. Nothing herein contained and no actions taken pursuant to this Assignment shall be construed as constituting the Assignee a mortgagee in i possession. 14. Unenforceable Provisions Severable. All rights, powers and remedies provided herein may be exercised only to the octent that the exercise thereof does not violate any applicable law, and are intended to be limited to the extent necessary so that they will not render this Assignment invalid, unenforceable or not entitled to be recorded, registered or filed under any applicable law. f If any term of this Assignment shall be held to be invalid, illegal or unenforceable, the validity of other terms hereof shall in no way be affected thereby. It is the intention of the parties hereto, however, that this Assignment shall confer upon the Assignee the fullest rights, remedies and benefits available pursuant to applicable Colorado law. 15. Successors •nd signs. The covenants and agreements herein contained shall bind, and the rights hereunder shall inure to the respective successors and assigns of the Assignor and the Assignee, including any purchaser at a foreclosure sale. 16. Captions: Amendments: Notices Giver Law. The captions and headings of the paragraphs of this Assignment are for convenience only and shall not be used to interpret or define the provisions of this Assignment. This Assignment can be amended only in writing signed by the Assignor and the Assignee. Any notice from the Assignee to the Assignor under this Assignment shall be deemed to have been given when given by the Assignee in accordance with the requirements for notice by the Assignee under the Mortgage. This Assignment shall be interpreted in accordance with the substantive laws (but not including conflict laws) of the State of Colorado. 17. Countemarts. This Assignment may be executed in any number of counterparts, each of which shall be an original but all of which shall constitute one instrument. 18. Personal Liability. Notwithstanding anything to the contrary contained in this Assignment, the liability of Assignor and its general partners for the indebtedness secured hereby and for the y performance of the other agreements, covenants and obligations contained herein shall be limited as set forth in the Note. _ 9_ 10 of 11 R 90.00 0 0.00 N 0.00 PmfIN COUNTY CO • 10 • • - • IN WITNESS WHEREOF the Assignor has executed this Assignment as of the day and year first -above written. HUNTER PLAZA ASSOCIATES, LLP j i I O r thony 1. Mona I Title:. Managing Partner , STATE OF COLORADO ) 1 COUNTY OF F PN.i... -, )ss. ' ti� The foregoing instrument was acknowledged before me this c day of March, 1998, by - . Anthony. Mazza, the Managing Partner of Hume Plaa Associates, LLP, a Colorado limited liability partnership on behalf of said partnership. cc C. 'o`..NIpEHa Joy 5 10'lry J o c- � l L.t • i M oUlr My Canmibbnw$es 42219e Maui 'u 601 East NOptb Notary • lic ` Div io Atpa,l Colorado 11811 tea; Nne' This instrument was drafted by: • Winthrop & Weinstine, P.A. 3000 Dain Bosworth Plaza 60 South Sixth Street Minneapolis, MN 55402 (612)347 -0700 3200 Minnesota World Trade Cents 30 Ear Seventh Street St. Paul, MN 55101 (612) 290 -8400 Mal: 214742.3 1111111IIII111111NIIIIIIII M0IIIII 414700 03/114/111OO SS:11P RION 1611 DAVID S /LVI • 10 of 1t R 00.00 0 0M N SAN PITNIN COUNTY CO 10 ■ I w...r j - EXHIBIT A TO ASSIGNMENT OF RENTS The Land described in the referenced instrument is located in Pitkir County, Colorado, end is described u follows: Lots K, L, M, N and 0, in Block 100, City and Townsite of Aspen. Except the following portion thereof: A parcel of land being part of Lots K, L and M, Block 100, Aspen, Colorado. Said parcel is more fully described as follows. Beginning at the northwest corner of said Lot K; thence S 75' 0 '1� 3 4 feet along W the north line of Lots K, L and M to the center of a masonry 32.24 fat along the center of said wall; thence N 75' 09'11" W 16.30 feet along the cater of a masonry wall; thence S 14' 50'49" W 4.16 feet along the center of said wall, thence N 75'09'11" W 46.14 feet along the center of said wall to a point on the westerly Tine of said Lot K; thence N 14 E 36.40 feet to the point of beginning. 1 • 111111111 111111111 11 1111111111111111111 1111111 414201103/114/11104 11r11► AWI ITEM OIWSI SILYI 11 .r 11 E 44.11 O 5.11 M 0.11 P1TXIM COMITY CO � `F '��'.l. ' w t fir, •i ,S,r� � ��.',:H � - } "�yI*�' .i�' '�'., - a .' :''#, ASSIGNMENT OF DEED OF TRUST AND ASSIGNMENT OF RENTS AND LEASES This Assignment of Deed of Trust and Assignment of Rents and Leases (the 'Assignment') is - made and entered into as of the lladay of March, 1998, by NORWEST BANK MINNESOTA, NATIONAL ASSOCIATION, a national banking association ( "Assignor "), for the benefit of MORGAN STANLEY MORTGAGE CAPITAL INC. ('Assizne ;'). 1. Assignor made a mortgage loan in the principal amount of 53,000,000, dated of even date herewith ("Egan') to Hunter Plaza Associates, LLP, a Colorado limited liability partnership ('Borrower "). The Loan is secured by, among other things, (i) a Combination Deed of Trust, Security Agreement and Fixture Financing Statement ('tonnage ") executed by Borrower dated of even date herewith, and recorded on mach : , , 1998, as Document No. 4 14 160 in the office of the County Recorderaegistrar of Titles, of the State of Colorado, and (ii) an Assignment of Rats and Leases (the 7 "AA ignment of Rents ") executed by Borrower dated of even date herewith, and recorded on March 4. , 1998, as Document No t mzon . in the office of the County Recorder/Registrar of Titles of the State of Colorado, both of which cover, among other things, the real property described on Exhibit A attached hereto. The Loan, n U Mortgage, Assignment of Rents and any and all ether documents evidencing, governing or lam' securing the Loan are herein collectively referred to as the "IS 2. Assignor desires to assign, transfer and convey all of its right, title and interest in the Loan, Mortgage, the Assignment of Rents and the Loan Documents to Assignee. NOW, THEREFORE, in consideration of the recitals stated above and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Assignor agrees as follows: I. Assignor hereby assigns, transfers and conveys to Assignee all of Assignor's right, title and interest in, to and arising out of the Loan, Mortgage, the Assignment of Rents and the Loan Documents. 2 The terms and provisions of this Agreement shall insure to the benefit of, and shall be binding upon the successors and assigns of the parties hereto. 3 This Assignment shall be construed and enforced according to the laws of the State of Minnesota. 4. Assignor agrees to execute and deliver to Assignee such other documents as may be reasonably necessary in order to effectuate the transaction contemplated hereby. 1IIIIIi 11111 111111111111IlIHNI111111 1 .! 3 It 11.11 D 0.80 N e.00 PITIIN COUNTY CO g nie;i r? B, y'*4. „h ." L; t ° -^ "76',010,4,i�� ' '3" . . s YwL- , 1 - "V i` 4rxw:T.ct 44 • I } t This Assignment is executed as of the day, month and year first above written. t t +y � ASSIGNOR: ^.: NORVJEST BANK MINNESOTA, NAT.IONAL ASSOCIATION By: N e: James R. Wenker Titi : Vice President` STATE OF MINNESOTA ) ss. COUNTY OF HENNEPLN ) ' personally On this 3i day of March, 1198, before me, l h �'� "�""'' p appeared James R. Wenker, who acknowledged himself to be & Vice President of Norwest Bank Minnesota, National Association, a national banki n s n n h th p hh Vice e President being authorized so to do, executed contained, by signing the name of such association by himself, as Vice President. IN WITNESS WHEREOF I hereunto set my hand and official seal Notary Public JOYC Sf j NOIAPY PUBLIC - MINNESOTA RAMSEY COUNTY . THIS INSTRUMENT WAS DRAFTED BY: My Gana EvIres Jan 01.2000 Winthrop & Weinstine, P.A. ( ) 3000 Dain Bosworth Plaza 60 South Sixth Street Minneapolis, htN 55402 (612) 347-0700 3200 Minnesota Trade Center 30 East Seventh Street I 11111111111111111 tilill 11111111111 11111 Sit St. (6 12) ) 29 290 -8400 2MN 05201 42.363 e4 /e7/29W 0419" RfON DT DAVIS SILVI (612) 2 of 3R ISM D 9.99 N 9.99 MITKIN COUNTY CO MYLl:331 -2 �. e:: a a3"a'�y �x ... e • ,v "'1 3 * �* ^F ` "� °r Arr�+ • s • r - 4 a ., a y - t Y ! ? Z t d EXI-liBIT A' TO ASSIGNMENT OF DEED OF TRUST AND ti '' . _ i ASSIGNMENT OF RENTS AND LEASES legal Deecn0tinn of Real Property The Land described in the referenced instrument is located inPitkin County, 1 1 Colorado, and is described as follows: Lots K, L, M, N and 0, in Block 100, City and Townsite of Aspen. Except the following portion thereof. p A parcel of land being part of Lots K, L and M, Block 100, Aspen, Colorado. Said parcel is more fully described as follows: Beginning at the northwest corner of said Lot K; thence S 75 ° 0 1 thence 5 14°50'' feet a t north line of Lots K, L and M to the center of a masonry 32.24 feet along the center of said wall; thence N 75 09'll" W 16.30 feet along the center of a masonry wall; thence 5 14 50'49" W 4.16 feet along the center of said wall; thence N 75°09'11" W 46.14 feet along the center of said wall to a point on the weste ly line of said Lot K; thence N 14°50'49" E 36.40 feet to the point of beginning. NW: ZII42I -1 C : 1 11 1111 11111 01111 111111 11111 111 011111 111 1 1111 11111 415353 04/07/11100 Male ;WS DT DAVIS SIL ,. a .1 2 53 saes D 0.00 N 0.00 PITNIN c01NIIT 00 • f Y M• ! ! • a . Ci- ' , y. " 1 111111 11111 111111 101111111111 110111111111111111,1 ` RICHA, OSON 441140 03/00/2000 01:33P RSGN DT DAVIS SILVI Y,. tt CCNSIATING GROUP, INC. 1 at 3 R 10.08 0 0.00 N 0.00 PITKIN COUNTY co 505-A SAth H1Non. UUrrElm - NOVA O. CA 9J215 r4l ,3!• -7400 a ASSIGNMENT OF DEED OF TRUST AND ASSIGNMENT OF RENTS AND LEASES • This A. signment of Deed of Trust and AssiSament of Rents and Leases (the Assignment ") is made and entered into as of the ago) day of eara` i'bP'5y NORWEST BANK \ QNNESOL\, - NATIONAL ASSOCIATION, a national banking association ( ".Assi gnor'), for the benefit of - MORGAN STANLEY MORTGAGE CAPITAL INC . ( "Assignee "). I. .Assignor made a mortgage loan in the principal amount of $3.000,000, dated of ; even date herewith ( "Loan ") to Hunter Plaza Associates, LLP, a Colorado limited liability - • paCrership f "Borrower "). The Loan is secured by, among other things. (i) a Combination • Deed of Trost, Security Agreement and Fixture Financing Statement ( "V ortgat�e ") executed by borrower dated of even date herewith, and recorded on March 4 1995, as Document No. 414180 in the office of the County Recorder/Registrar • • of Titles, of the State of Colorado, and (ii) an Assignment of Rents and Leases (the _ "Assienrnent of Rents ") executed be Borrower dated of even dare herewith, and recorded ` a- 'barer 4 1995. as Document Nn. 414 200 , in the office of the County Recorde.!Registrar of Titles of the State of Colorado, both of which cover. among - other things. the real property described on E.el;ibit A attached hereto. The Loan. �.\ Mortgage. Assignment of Rents and any and all other documents e' dencine. governing or . securing the Loan are herein collectively referred to as the 'Loan Documents ' . Assignor desires to assign. transfer and convey all of its right, title and interest in the Loan. Mortgage. the Assignment of Rents and the Loan Documents to Assignee NOW, THEREFORE. in consideration of the recitals stated above and other good and valuable •`r consideration, the receipt and sufficiency of which are hereby acknowledged. Assignor agrees as follows: .• I. Assignor hereby assigns. transfers and conveys to Assignee all of Assignor's richi. • • tide and interest in. to and arising out of Lean, Niertgaee, the Assignment of Rerts • ' and the Loan Documents. - . The terms and provisions of this Agreement shall insure to the benefit of, and shall he binding upon the successors and assigns of the panics hereto 3. This Assignment shall be construed ,:rd enforced according to the laws of the State of \finnescta 4. Assignor agrees to execute and deliver to Assleiee such other documents as may be reasonably necessary in order to effectuate the transacr contemplated herehv ....,._ I"oti r1:.$b ;;3 -V :Ih4 - 0 - 0 , I Zr w • This Assignment is executed as of the derv, month and year first above written \ 1, . • 2 ASSIGNOR: . NORWEST BANK M1RNNESOTA. \. NATIONAL AASSISOCIATIO�\r\ Name: Dames R. \Venker : < Title: Yice President f STATE OF MINNESOTA ) )ss. COUNTY OF HENNEPIN ) ANG /,x-3°° • On this O Li day of before me, ��M(5 V V'L iJ r ( , Ser appeared James R. 1Venker, who acknowledged himself to be a bite President of Nonvest Bank Minnesota, National Association, a national banking association, and that he, as such Vice President being authorized so to do. executed the foregoing instniment for the purposes therein • contained, by signing the name of such association by himself, as Vice President. • - IN WITNESS W'NEREOF I hereunto set me hand and official seal. (� C r.t L^. 7)0.914.A /k_ Notary Public .---•-- �` l'¢ ' ?- �• J6. LL L 1 .tLLJCK TIT'S INSTRUMENT W115 DRAFTED By': .4 "' a SSj • Winthrop & P.einstine, P.A. ( ) _ ^" ' "" ^•• ^`^•"^^�• 3000 Dain Bosworth Plaza ' 60 South Sixth Street' _ JENELL F. NALLICK Minneapolis. MN 55402 �� • /6I.)34' -0',00 14cm :min3rm.3m v.nm "vwt- .\V "YWV• 3200 Minnesota World Trade Center 30 East Seventh Street St Paul MN 55101 1111111 11111 IIIIII 11111 11111111111 MI III IIIII 1111 lilt . (612)290 441148 03/08/2000 01133P RSGN DT DAVIS SILVI 2 e/ 3 R 15.00 D 0.00 N 0.00 PITKIN COUNTY CO • 0 0 • • • • • • EXHIBIT s TO ASSIGNMENT OF DEED OF TRUST .AND ASSIGNMENT OF RENTS AND LEASES Legal Description of Real Property The Land described in die referenced instrument Ls looted in Pitkin County, Colorado, and is described as follows: • ')A- DEE Lots K. L. M. N and O, in Block 100, City and Townsite of Aspen E! _ Except the following portion thereof. A parcel of land being part of Lots K. L and M, Block 100. Aspen, Colorado. Said parcel PLR is more fully described as follows. Beginning at the northwest corner of said Lot K, thence S 75 ° 09'11" E 62.44 feet alone LEG. the north line of Lots K, L and M to the center of a masonry wall; thence S 14' 50'40" W • 3224 feet alone the center of said wall: thence N 75" 09'11" R' 16.30 feet along the center of a masonry wall: thence S 14'50 \V 4.16 feet along the center of said call; • thence N 75 \\ 46.14 feet along the center of said wall to a point on the westerly line of said Lot K; thence N I4 E 36.40 feet to the point of beginning. XE•. 14111111 NIII IIIIII11111IIilll IIIII IIIII NI II(II 111(1111 } J 8 0 0 000011 0.00 COUHTY { NIPLI.: 4: ?-: - 1 98t • • • 0 ask . 1 . P. l . _ .. - _ . G YM P+.. ■ . `Z 1 11 1 1 1 1 11111111111111111111 lIIIII 1111111111111111111 • RECORD AND RETURN TO: 414507 06/26/2000 03:44P AMA DT DAVIS SILVI 1 of 0 R 13.00 D 0.00 N 0.00 PIMIN COUNTY CO Richardson Consulting Group 505A San Marin Drive, Suite 110 Novato. CA 94945 SPACE ABOVE THIS t /NE FOR Kl C ORIJERS I'S!: • ASSIGNMENT OF LOAN DOCUMENTS (COLORADO) • THIS .ASSIGNMENT is made to be effective as of July L 1998, by MORGAN STANLEY MORTGAGE CAPITAL. INC. ( "Assignor "), a New York corporation. having an address at 1585 Broadway. New York, New York, 10036, to and in favor of LASALLE BANK . NATIONAL ASSOCIATION f/k/a LASAI.LE NATIONAL BANK. AS TRUSTEE FOR THE HOLDERS OF COMMERCIAL MORTGAGE PASS - THROUGH CERTIFICATES SERIES 1998 -CI ( ".As,signcv "), a National banking association. having an address at u'u Midland Loan Services. Inc., 210 West 10th Street, Kansas City, MO 64105. For good and sufficient consideration, the receipt and sufficiency of which are hereby r acknowledged. Assignor hereby sells. assigns, transfers. and endorses to Assi its successors and assigns. all its right, title and interest in and to (a) that certain Combination Deed of Trust, • Security .Agreement and Fixture Filing Statement (the "Deed of Trust ") executed by HUNTER PLAZA ASSOCIATES, LLP. a Colorado limited liability partnership ("Borrower"). in favor of Nonvest Bank Minnesota National Association, a national banking association. dated as of . March 2. 1998, and recorded March 4. 1998, as Document No. 414180 in the office of the Pith in County RecorderRcgistrar of Titles, of the State of Colorado ( "Official Records "). and tb) that , certain Assignment of Rents and Leases (the "Assignment of I rases ") executed by Borrower in 4 • favor of Nonvest Bank Minnesota National Association dated as of March 2. 1995. recorded s March 4. 1998, as Document No. 414200 in the Official Records, which items (a) and (b1 were assigned to Assignor by Assignment of Dccd of Trust and Assignment of Rents and leaves dated u January 24. 2000, and recorded Ntarch 6. 2000, as Instrument No. 441148. together with the Note to which that Deed of Trust is collateral and security. under which Deed of Trust. Bonorcer ' assigned all of Borrower's rights. interests. and privileges in and to that certain real propcny K situated in Denver County. Colorado as more particularly set forth in Exhibit "A" attached 5 hereto. 10 HAVE AND TO HOLD the Deed of Trust and the Assignment of I.eases unto As.,ignee and to .te successors and assigns of Assignee forever. Ii AA 0 \ ' r, . • • / • IN WITNESS WHEREOF, Assignor has caused this Assignment to be executed in its 'Pj name its duly authorized officer as of the date first written above. _ s • ASSIGNOR: ',z { MORGAN ANI,ExMORTGAGE CAPITAL, INC. .... Andrew Berman Vice President -- -t: . ACKNOWI FPGEMFNT t . s STATE OF NEW YORK ) ) r , COUNTY OF r e-c) y0t V—_) t On Tun,. / `' . 2000, before me, the undersigned personally appeared Andrew Berman personally known to me (or proven to me on the basis of satisfactory evidence) . to be the person whose name is subscribed to the within instrument and acknowledged to me that he executed the same in his authorized capacity. and that by his signature on the instrument the person. or the entity upon behalf of which the person acted. executed the instrument. • WITNESS my hand and official seal. • r . C CG.Sr< ((- .ki,z, _ Notary in and for syttotttrtatd State - .•ki \ .. "` �' "' 1 t. Public. ls Vat r '. 00•11584 In New Moak County tS y 'l ) . • COmmIuion ExPUes .My 00, 2001 ^ c My commission expires: t- t . It l I"III I'lll'1II' 111 IIII'lllll I'I% I�II • I'� IIII I"I I, 2 at ; R 15. 0 0.00 K 0.00 PITKIIK OOUNry ca 2 . \ n v!\?d`I i.a P \an , .r • 0 ., .r.. .. ., ,. ... :I . - EDIT A TO ASSIGNMENT OF DEED OF TRUST AND '`- - .ASSIGN17ENT OF RENTS AND LEASES 4 L ga Y : J.e sttiic ot� of Reai Pr e s The Land described in the referenced instrument is located in Pitkin County, .: Co and a described as follows: sc Lots K, L, M. N and O, in Block 100, City and Townsite of Aspen. `_', Except the following portion thereof: - i. i. A parcel of land being part of Lots K L and M, Block 100, Aspen, Colorado. Said parcel._ is more fully described as follows: Beginning at the northwest comer of said Lot K; thence S 75' 09'11" E 62.44 feet alone the north line of Lots K L and M to the center of a masonry wall, thence S 14 50'49" CV 3224 feet along the center of said wall; thence N 75 09'11" W 16.30 feet along the - center of a tnasonry wall; thence 5 14 50'49" W 4.16 feet alone the center of said wall; thence N 75'09'11" W 45.1 feet alone the center of said wall to a point on the wester) -." line of said Lot K; thence N 14°50'49" E 36.40 feet to the point of beeinn:ne. 1 I . 4 - I ' t - 1. i Ii tll IP11111111111111111111111 11111111111111111111 4440ST 00/20/4000 03141P NON DT DAVIS SILVI t 3 of 7 R 15.00 D 0.00 N 0.00 ATTAIN COUNTY CO ; _ 1 . T f: l o . ) STRUCTURAL CONSULTANTS 3400 East Bayaud Avenue, X300 INCORPORATED Denver, 01 / 3 55154 303/ 399 5154 Fax 303/ 333 9501 October 12, 2000 Mr. Liam O'Farrell, P.E. DYNATEK TELECOMMUNICATIONS SERVICES 6901 S. Yosemite Street, Suite 200 Englewood, CO 80112 • Re: 620 E. Cooper, Aspen - Cell Site SCI # 00 -341 05 Dear Liam: The purpose of this letter is to express that our office will review the structural impact of installing new telecommunication equipment on the roof of the building at 620 E. Cooper in Aspen, Colorado. Our scope of services will include analyzing the existing structure from the roof framing down to the foundations for the capacity to support the proposed equipment. We will design and detail supplementary structural framing as required for the installation of the new shelter and antenna mounts. It is our understanding that existing structural drawings will be made available to us for our analysis. At the time of this letter, we have only briefly reviewed the proposed equipment layout. No calculations or analysis has been performed but will be included with the submission of complete Construction Documents. If you have any questions, please contact us at your convenience. Sincerely, STRUCTURAL CONSUULLTAANN�TS, INC. Reviewed By: er 9 Patrick J. Farrell, P.E. Lorin I. Lieberman, P.E. PJF4rm r • 4, • o rt' - • i • S 10 'le( Principals Senior Associates Associates Jerry B. Gray, PE. Bruce R. Wolfe, P.E. fill E. Cackowski R. Wayne Muir, P.E. Lorin Lieberman, P.E. Heath C. Stein, P.E.