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HomeMy WebLinkAboutbocc.res.089.2016 FOR ASSESSORS AND COUNTY COMMISSIONERS USE ONLY (Section III or Section IV must be completed) Every petition for abatement or refund filed pursuant to§39-10-114,C.R.S.shall be acted upon pursuant to the provisions of this section by the Board of County Commissioners or the Assessor,as appropriate,within six months of the date of filing such petition,§39-1-113(1.7),C.R.S. Section III: Written Mutual Agreement of Assessor and Petitioner (Only for abatements up to$10,000) The Commissioners of County authorize the Assessor by Resolution No. to review petitions for abatement or refund and to settle by written mutual agreement any such petition for abatement or refund in an amount of$10,000 or less per tract,parcel,or lot of land or per schedule of personal property,in accordance with§39-1-113(1.5),C.R.S. The Assessor and Petitioner mutually agree to the values and tax abatement/refund of: Tax Year Actual Assessed Tax Original - Corrected Abate/Refund Note:The total tax amount does not include accrued interest,penalties,and fees associated with late and/or delinquent tax payments,if applicable. Please contact the County Treasurer for full payment information. Petitioner's Signature Date Assessor's or Deputy Assessor's Signature Date Section Iv: Decision of the County Commissioners (Must be completed if Section III does not apply) t/ ct ' . e r !G —rVi-U/4 WHEREAS,the County Commissioners of Kt rhe r K--, County,State of Colorado,at a duly and lawfully called regular meeting held on /a /21/Day f/4 at which meeting there were present the following me, taus � « members:, 1"tilM41.15S/ c �r�t Ll LL esr W' (�& 7pY 4e„, with notice of such meetill(g and an opportt ity to bepresent, ving been given to the Petitioner and the Assessor of said County and Assessor �li4- y I Ac 7 CI- (being present not present)and ;' (( 1 Na Petitioner DO Ct 4- 61 wit S of present),and WHEREAS,the said Name County Commissioners have carefully considered the within pe I ion,and are fully advised in relation thereto, NOW BE IT RESOLVED that the Boa (agrees does not a ree)with the recommendation of the Assessor, and that the petition be(approved—approved n pa defiled) 'th an abatement/refund as follows: Year Assessed Value Taxes Abate/Refund ' ' e/" Chairpe on of the Board of County Corn - ars'Signature County Clerk and Ex-Officio Clerk of the Board of Coun Commissioners in and for the aforementioned county,do hereby certify that „-,��\and foregoing order is truly copied from the record of the proceedings of the Board of County Corn b'qfp4rC0 .‘ t at affixed (Ilf IN WITNESS WHEREOF,I hay hereunto set my h! ��t7 affixed th¢ lf/ id= County this �.0 f{" day of U L , r Month l • EAL Vii, / % I Gam' fll A '.,• ,Cgtl411 rk's or Deputy County%lark's Signature Note:Abatements greater than$10,000 per schedule,per year,mu(r 0,•l�' T:rrto the Property Tax Adrtrinistrator for review. Section v: Action of the Property Tax Administrator (For all abatements greater than$10,000) The action of the Board of County Commissioners,relative to this petition,is hereby ❑Approved 0 Approved in part$ El Denied for the following reason(s): Secretary's Signature Property Tax Administrator's Signature Date 15-OPT-AR No.920-66/15 PETITION FOR ABATEMENT OR REFUND OF TAXES County: Pitkin County Date Received (Use Assessor's i _ ) Section I: Petitioner,please complete Section I only. Date: 1/13/2016 JAN 1 5 2016 Month Day Year ❑ Ai(� Mountain Tune LLC C/O Duff&Phelps,LLC f ITKIN COUNTY Petitioner's Name: ASSESSOR Petitioner's Mailing Address: 1200 17th Street Suite 990 Denver CO 80202 City or Town State Zip Code SCHEDULE OR PARCEL NUMBER(S) PROPERTY ADDRESS OR LEGAL DESCRIPTION OF PROPERTY R004043 240 BUTTERMILK LN ASPEN Petitioner requests an abatement or refund of the appropriate taxes and states that the taxes assessed against the above property for property tax year(s) 2014 and 2015 are incorrect for the following reasons: (Briefly describe why the taxes have been levied erroneously or illegally,whether due to erroneous valuation,irregularity in levying,clerical error or overvaluation. Attach additional sheets if necessary.) The subject property is a contiguous parcel of land associated with account(R019728)under common ownership.Pursuant to 39-1-102 C.R.S (14.4)(a)"Residential land"means a parcel or contiguous parcels of land under common ownership upon which residential improvements are located and that is used as a unit in conjunction with the residential improvements located thereon.Attached are the operating agreement for both accounts R004043(land)and R019728(residential);please note that both of these entities am owned by Andypolo,LP.Given that these parcels are owned under common ownership and enjoyed as a unit,Duff&Phelps hereby request that the subject property be classified as residential instead of commercial. Petitioner's estimate of value: $ 2,e00,000 (2014 )and $2.300,000 (2015 Value Year Value Year I declare,under penalty of perjury in the second degree,that this petition,together with any accompanying exhibits or statements,has been prepared or examined by me,and to the best of my knowledge,information and belief,is true,correct,and complete. Daytime Phone Number( Petitioner's Signature Email By Daytime Phone Number(303 )749.9033 Agent's Signature* travis.stuard@duffandphelps.com Email *Letter of agency must be attached when petition Is submitted by an agent If the Board of County Commissioners,pursuant to§39-10-114(1),C.R.S.,or the Property Tax Administrator,pursuant to§39-2-116,C.R.S., denies the petition for refund or abatement of taxes in whole or in part,the Petitioner may appeal to the Board of Assessment Appeals pursuant to the provisions of§39-2-125,C.R.S.,within thirty days of the entry of any such decision,§39-10-114.5(1),C.R.S. Section II: Assessor's Recommendation (For Assessor's Use Only) Tax Year Tax Year Actual Assessed Tax Actual Assessed Tax Original Corrected Abate/Refund ❑Assessor recommends approval as outlined above. If the request for abatement is based upon the grounds of overvaluation,no abatement or refund of taxes shall be made if an objection or protest to such valuation has been filed and a Notice of Determination has been mailed to the taxpayer,§39-10-114(1)(a)(I)(D),C.R.S. Tax year. Protest? ❑No ❑Yes (If a protest was flied,please attach a copy of the NOD.) Tax year. Protest? ❑No ❑Yes (If a protest was flied,please attach a copy of the NOD.) ❑Assessor recommends denial for the following reason(s): Assessors or Deputy Assessor's Signature 15-DPT-AR No.920-66/15 „1-/ 3 `� Sch# - 4043, Mountain Tune, LLC; Metes and Bounds, West Buttermilk The petitioner is requesting an abatement for tax year 2014, and 2015. For each of these tax years, the valuation is not subject to dispute, only the vacant land classification. The abatement request claims that the subject parcel is under common ownership with the adjoining improved residential parcel (sch# 19728) and is enjoyed as a unit. This is supported by an operating agreement for each parcel naming a common party in the agreement, Andypolo, LP. Therefore the vacant parcel qualifies for a residential classification. After researching the ownership records of the two parcels, it was discovered that the improved parcel, sch# 19728, is held under the ownership of Mountain Song, LLC while the vacant subject parcel, sch#4043, is held under the ownership of Mountain Tune, LLC. Being separate legal entities, it is the position of the Pitkin County Attorney's office that the two parcels are not under"common ownership". The operating agreements both have a common party to the respective agreements, Andypolo, LP but this does not represent an ownership interest in either parcel. As such, the vacant parcel does not qualify for the residential classification. If approved as requested, the refund would be: tax year tax year 2014 - $24,727; 2015 - $20,479 Recommended action: Uphold the assessor's recommendation to deny the request for a change in classification or, recommend a change in classification either or in full or in part. Hearing Officer Recommendation: Petitioner indicates that there is common ownership of this property and the improved residential property. The two parcels are held in two different entities. I have been provided with the operating agreements for the different entities which indicate a 3"d entity is in a similar position with each property. They are however different entities. Without identical ownership I believe this does not qualify under Pitkin County's definition of common ownership. The Pitkin County BOE and County Commissioners have been advised by the county attorney that common ownership is defined as owned by exactly the sane entity. In this case, I do not believe that the vacant parcel is considered an integral part of the residence or is used in common with the residence or the primary purpose of the parcel is not clearly demonstrated. The residents use the parcel and maintain it as necessary but I do not see that it supports the improved property. The parcels would not likely be conveyed together. Without common ownership as defined by ownership in the exact same entity, I am unable to consider this request. I recommend that the request for residential designation be denied. Stephen C. Hach Please see following Page 35 Below, in addition to the information provided at the hearing by the Petitioner and the Assessor, is part of the information that was also used to make my determination. A partial description as offered by the Division of Real Estate is; "Residential Land"means a parcel or contiguous parcels of land under common ownership upon which residential improvements are located ant that is used as a unit in conjunction with the residential improvements located thereon. From the 2012 court ruling Fifield v. Pitkin County Board of Commissioners 4 Suggested Criteria(but not limited to the 4)were developed by the Pitkin County Assessor to evaluate the residential classification. 1. Are the contiguous parcels under common ownership? (The Pitkin County Attorney's office has interpreted"common ownership"as held under exactly the same entity and name provided this interpretation to the BOE and County Commissioners) 2. Are the parcels considered an integral part of the residence and actually used as a common unit with the residence? 3. Would the parcel(s) in question likely be conveyed with the residence as a unit? 4. Is the primary purpose of the parcel and associated structures to be for the support, enjoyment,or other non-commercial activity of the occupant of the residence? Sch# - 4043, Mountain Tune, LLC; Metes and Bounds, West Buttermilk The petitioner is requesting an abatement for tax year 2014, and 2015. For each of these tax years, the valuation is not subject to dispute, only the vacant land classification. The abatement request claims that the subject parcel is under common ownership with the adjoining improved residential parcel (sch# 19728) and is enjoyed as a unit. This is supported by an operating agreement for each parcel naming a common party in the agreement, Andypolo, LP. Therefore the vacant parcel qualifies for a residential classification. After researching the ownership records of the two parcels, it was discovered that the improved parcel, sch# 19728, is held under the ownership of Mountain Song, LLC while the vacant subject parcel, sch# 4043, is held under the ownership of Mountain Tune, LLC. Being separate legal entities, it is the position of the Pitkin County Attorney's office that the two parcels are not under "common ownership". The operating agreements both have a common party to the respective agreements, Andypolo, LP but this does not represent an ownership interest in either parcel. As such, the vacant parcel does not qualify for the residential classification. If approved as requested, the refund would be: tax year tax year 2014 - $24,727; 2015 - $20,479 Recommended action: Uphold the assessor's recommendation to deny the request for a change in classification or, recommend a change in classification either or in full or in part. Hearing Officer Recommendation: Appointment of Agency for Property Tax Matters Duff & Phelps, LLC is authorized to represent MOUNTAIN TUNE LLC for the property known by account number R004043 regarding the real property assessment matters in Pitkin County, Colorado. Any and all previous authorizations are hereby revoked. Duff & Phelps, LLC is authorized to act on our behalf in obtaining and providing information, negotiating, settling and assessing for all real property matters related to the property owned, possessed, or controlled by the undersigned at the above referenced parcel. This agent is delegated full authority to handle real property matters relative to assessments and to represent us, with the assistance of legal counsel, if necessary, in the appeal process. This authority is extended to the account number R004043 and may be amended as necessary. This appointment of agency remains in effect for tax year(s) 2014 - 2016 or until revoked in writing by MOUNTAIN TUNE LLC or Duff& Phelps, LLC. All correspondence should be directed to the following: NAME: Bruce Cartwright Duff& Phelps LLC ADDRESS: 1200 17th Street, Suite 990 Denver, Colorado 80202 303-749-9003 SIGNED NAME: PRINTED NAME: friztrk ' L.45,$)1 TITLE (in Relationship to Owner E}} tities/) ,/ 41124. r DATE EFFECTIVE: t 2/ �/6 :,; ' : PATRICIA A.WILDER a• ' MY COMMISSION EXPIRES Se/p�tember 30,2016 , t•` .rnlu �J L� l , .• eL� Notarize PITK fIITELrN 506 EINMAIN SCOUNTY,SUI ES ORER . PITKIN COUNTYTAX NOTICE couwnev ASPEN MAINRADO81611-2903 For 2014 taxes due in 2015 nrsuara a rustic nusrer PHONE#(970)-920.5170 FAX#(970)920-5175 c www. i kincoun,.comltreasurer LEGAL DESCRIPTION OF PROPERTY TAXING DISTRICT LEVY POcaemItr 1 TAX AMOUNT Quarter:SE Section:3 Township:10 Range:85 PITKIN COUNTY GENERAL FND 2.476 -0.613 $2,010.50 TRACT OF LAND IN LOT 13 OF SEC 3-10-85 BGNNG AT COUNTY TV&FM TRANSLATORS 0.289 -0.086 $234.67 A PT FROM WH THE S4 COR 3-10-85 BEARS S 47 DEG COUNTY ROADS&BRIDGES 0.182 -0.046 $147.78 45W 999.23 FT TH N 01 DEG 39W 150.39 FT TO COUNTY HUMAN SERVICES 0.065 $52.78 SWLY EDGE OF ROW TH S 52 DEG 21'E 114.33 FT ALNG HEALTHY COMMUNITY FUND 0.802 -0.004 $651.22 THE SWLY EDGE OF ROW TH S 30 DEG 47'E 128.87 FT Additional Legal Desc.On File With Assessor ASPEN AMBULANCE DISTRICT 0.400 -0.102 $324.80 OPEN SPACE&TRAILS 3.750 $3,045.00 PITKIN COUNTY LIBRARY 1.490 -0.142 $1,209.88 ASPEN FIRE PROTECTION 1.476 $1,198.51 ASPEN SANITATION DISTRICT 0.130 $105.56 SITUS ADDRESS: ASPEN VALLEY HOSPITAL 2.818 $2,288.22 240 BUTTERMILK LN ASPEN SCHOOL DISTRICT 9.297 $7,549.17 COLORADO MTN COLLEGE 3.997 $3,245.56 PARCEL NUMBER:273503400036 COLORADO RIVER WATER CONS 0.253 $205.44 BASALT WATER CONSERVANCY 0.044 $35.73 BUTTERMILK METRO-ROAD 4.305 $3,495.66 BUTTERMILK METRO-WATER 9.900 $8,038.80 ASPEN HISTORIC PARK&REC 0.300 $243.60 PROPERTY VALUATION ACTUAL ASSESSED LAND 2,800,000 812,000 BUILDING PERSONAL PROPERTY EXEMPTION-DISABLED VET. OR SENIOR HOMESTEAD "A mill levy is the tax rate per$1,000 of assessed valuation. NET TOTAL VALUATIONWithout state legislative funding your school NET MILL LEVY FULL TAX 2,800,000 812,000 mill levy would have been: 11.9670 41.974 $34,082.88 TAX DISTRICT ACCOUNT NUMBER TYPE OF PROPERTY UNPAID PRIOR YEAR TAX milli, PAYMENT SCHEDULE 080 I R004043 Real NUMBER CR MESSAGE APPEARS HERE $17,041.44 IS YOUR ADDRESS CORRECT? $17,041.44 Please check the box on the coupon for change of address. OR FULL PAYMENT DUE APRIL 30 $34,082.88 Make checks payable to:PITKIN COUNTY TREASURER Post-dated checks are not accepted. MOUNTAIN TUNE LLC If your real(not personal)property taxes will be paid by your ERIC S SCHEAFFER ESQ mortgage company,please do not duplicate payment. 4203 YOAKUM BLVD#200 If you have sold this property,please forward this statement HOUSTON,TX 77006 to the new owner or return d to this office marked"property sold"(and include the name and address of the new owner if known). PLEASE SEE REVERSE SIDE OF THIS RETAIN TOP PORTION FOR YOUR RECORDS. FORM FOR ADDITIONAL INFORMATION. TAX NOTICE R004043 Contact Treasurers office immediately if a number 2014 TAXES DUE IN 2015 or message appears above.(970)920-5170 PLEASE USE YOUR CANCELLED RETURN THIS COUPON WITH SECOND HALF PAYMENT CHECK AS A RECEIPT.IF YOU NEED A SEPTHIS COEIFTAND ECHERE.RN 2nd Half Coupon - Due June 15 THIS COUPON AND CHECK HERE. 2 _Y 'I f T H I Iv To pay by credit card: • To pay by check: \ COUNT41 f �„ 111:E] Return this coupon and make L VISA check for exactoamount indicated c�� below,payable to TREASURER&PUBLIC TRUSTEE Visit www.officialpayments.com PITKIN COUNTY TREASURER 7937'27"50"'0.564"1/1"""""""""""""AUTO"3-DIGIT 770 or call 1-800-2PAY-TAX 506 E MAIN ST,SUITE 201 MOUNTAIN TUNE LLC (Use Jurisdiction Code 1607) ASPEN,CO 81611-2903 ERIC S SCHEAFFER ESQ 4203 YOAKUM BLVD SE 200 Official Payments,the service provider, Payments must be in U.S.dollars and HOUSTON TX 77006-5455 charges a 2.5%fee for this service. drawn on a U.S.bank II'I'III111111'11111111111'1'1"II'I'llllllll'lll'I'l'11111111111 TAX AMOUN SEDDUUND HALF AMOUNT El E BYJUNE 15,2015 $17,041.44 R004043 Contact Treasurer's office immediately if a number 2014 TAXES DUE IN 2015 .,NT NUMBER or message appears above(970)920-5170 PLEASE USE YOUR CANCELLED RETURN THIS COUPON WITH FIRST HALF OR FULL PAYMENT CHECK ASA RECEIPT.IF YOU NEED A THIS SEPARATEREAND HECK HERE.RETURN Full Payment Coupon or 1st Half Coupon THIS COUPON AND CHECK HERE.❑ > I 1 C a I N To pay by credit card: To pay by check: I Return this coupon and make COUNT' � (arc__va CU VISA I check for exact amount indicated �� --1 below,payable to TREASURER&PUBLIC TRUSTEE Visit www.officialpayments.com PITKIN COUNTY TREASURER or call 1-800-2PAY-TAX 506 E MAIN ST,SUITE 201 (Use Jurisdiction Code 1607) ASPEN,CO 81611-2903 MOUNTAIN TUNE LLC Official Payments,the service provider, Payments must be in U.S.dollars and ERIC S SCHEAFFER ESQ charges a 2.5%fee for this service. drawn on a U.S.bank 4203 YOAKUM BLVD#200 HOUSTON,TX 77006 FIRST HALF AMOUNT 7 $17,041.44 DUE BY FEBRUARY 28,2015 OR FULL AMOUNT $34,082.88 Ed DUE BY APRIL 30,2015 0 Check this box for change of address and complete back of form. OPERATING AGREEMENT FOR THE MOUNTAIN SONG,LLC THIS OPERATING AGREEMENT is entered into as of this 26th day of March 2009 by and between ANDYPOLO, LP, A DELAWARE LIMITED PARTNERSHIP (the Member), DAVID HOUSTON AND WILBUR .E. BOSARGE as the Manager of the Company (as such term is herein defined), and MOUNTAIN SONG, LLC, a Delaware limited liability company. RECITALS A. Contemporaneous with the execution of this Operating Agreement the Member has caused to be filed a Certificate of Formation(the "Certificate") for MOUNTAIN SONG, LLC(the "Company") a limited liability company under the laws of the state of Delaware. B. Contemporaneous with the execution of this Operating Agreement and the exe- cution of the Certificate of Formation with the state of Delaware the Member shall cause to be filed with the secretary of state (or equivalent government agency) of any other jurisdiction in the United States or any other country in which the Company is or will be doing business an Application for Registration or equivalent form registering the Company as a foreign limited li- ability company entitled to do business in such jurisdiction. C. The Member enters into this Agreement to form and provide for the governance of the Company and the conduct of its business. NOW THEREFORE, the Member agrees as follows: ARTICLE I: DEFINITIONS Capitalized terms used in this Agreement have the meanings specified in this Article or elsewhere in this Agreement and when not so defined shall have the meanings set forth in the Delaware Limited Liability Company Statute. 1.1 "Act" means the Delaware Limited Liability Company Act under Article 6,Chap- ter 18,including amendments from time to time. 1.2 "Affiliate" of a Member means (1) any Person directly or indirectly,through one or more intermediaries,controlling,controlled by,or under common control with the Member. The term "control" (including the terms "controlled by" and "under common control with") means the possession,direct or indirect, of the power to direct or cause the direction of the management and policies of a Person,whether through membership,ownership of voting secu- rities,by contract,or otherwise. Page 2 1.3 "Agreement" means this operating agreement,as originally executed and as amended from time to time. 1.4. "Assignee" means a person who has acquired a portion of the Member's Economic Interest in the Company,by way of a Transfer in accordance with the terms of this Agreement, but who has not become a Member. 1.5. "Assigning Member" means a Member who by means of a Transfer has trans- ferred an Economic Interest in the Company to an Assignee. 1.6. "Available Cash" means all net revenues from the Company's operations, includ- ing net proceeds from all sales,refinancings, and other dispositions of Company property that the Manager, in the Manager's sole discretion,deems in excess of the amount reasonably necessary for the operating requirements of the Company,including debt reduction and Reserves. 1.7. "Capital Account"means,with respect to the Member,the account reflecting the capital interest of the Member in the Company,consisting of the Member's initial Capital Contribution maintained and adjusted in accordance with Article III, Section 3.3. 1.8. "Capital Contribution" means,with respect to the Member,the amount of the money and the Fair Market Value of any property(other than money)contributed to the Com- pany(net of liabilities secured by such contributed property that the Company is considered to assume or take "subject to" under the principles of IRC section 752)in consideration of the Membership Interest held by the Member. A Capital Contribution shall not be deemed a loan. 1.9. "Code" or"IRC"means the Internal Revenue Code of 1986, as amended, and any successor provision. 1.10. "Company" means the company named in Article II, Section 2.1 of this Agree- ment. 1.11 "Economic Interest" means a Person's right to share in the income,gains, losses, deductions,credits and or similar items of, and to receive distributions from,the Company,but does not include any other rights of a Member,including the right to vote or to participate in management. 1.12. "Encumber"means the act of creating or purporting to create an Encumbrance, whether or not perfected under applicable law. 1.13. "Encumbrance" means,with respect to any Membership Interest, or any element thereof,a mortgage,pledge,security interest,lien, proxy coupled with an interest (other than as contemplated in this Agreement), option, or preferential right to purchase. 1.14. "Initial Member" means the Person whose name is set forth in the first sentence of this Agreement. . Page 3 1.15. "Involuntary Transfer"means,with respect to the Membership Interest,or any element thereof,any Transfer or Encumbrance,whether by operation of law,pursuant to court order,foreclosure of a security interest,execution of a judgment or other legal process,or oth- erwise,including a purported transfer to or from a trustee in bankruptcy,receiver,or assignee for the benefit of creditors. 1.16. "Losses."See Article W,Section 4.2. 1.17 "Manager" means the Person(s)named as such in Article II or the Person(s)who from time to time succeed any such Person(s)as a Manager and who,in either case, are serving at the relevant time as a Manager. 1.18. "Member"means the Initial Member or a Person who otherwise acquires a Mem- bership Interest, as permitted under this Agreement,and who remains a Member. 1.19. "Membership Interest"means the Member's rights in the Company,collectively, including the Member's Economic Interest,any right to Vote or participate in management,and any right to information concerning the business and affairs of the Company. 1.20. "Notice"means a written notice required or permitted under this Agreement.A notice shall be deemed given or sent when deposited,as certified mail or for overnight delivery, postage and fees prepaid,in the United States mails or in the equivalent thereof for the country of Bermuda;when delivered to Federal Express, United Parcel Service,DHL Worldwide Express, or Airborne Express,for overnight delivery,charges prepaid or charged to the sender's account; when personally delivered to the recipient;when transmitted by electronic means,and such transmission is electronically confirmed as having been successfully transmitted;or when deliv- ered to the home or office of a recipient in the care of a person whom the sender has reason to be- lieve will promptly communicate the notice to the recipient. 1.21. "Person"means an individual,partnership, limited partnership,trust,estate,asso- ciation,corporation,limited liability company,or other entity,whether domestic or foreign. 1.22. "Profits" and"Profits and Losses"are defined in Article IV, Section 4.2. 1.23. "Regulations" ("Reg")means the income tax regulations promulgated by the United States Department of the Treasury and published in the Federal Register for the purpose of interpreting and applying the provisions of the Code,as such Regulations may be amended from time to time,including corresponding provisions of applicable successor regulations. 1.24. "Reserves"means the aggregate of reserve accounts that the Manager,in the Man- ager's sole discretion,deems reasonably necessary to meet accrued or contingent liabilities of the Company,reasonably anticipated operating expenses,and working capital requirements. 1.25. "Successor in Interest"means an Assignee,a successor of a Person by merger or otherwise by operation of law,or a transferee of all or substantially all of the business or assets of a Person. Page 4 1.26. "Transfer" means, with respect to a Membership Interest or any element of a Membership Interest, any sale, assignment,gift, Involuntary Transfer,Encumbrance,or other disposition of such a Membership Interest or any element of such Membership Interest, directly or indirectly,other than an Encumbrance that is expressly permitted under this Agreement. 1.27. "Vote"means a written consent or approval, a ballot cast at a meeting,or a voice vote. 1.28 "Voting Interest" means,with respect to a Member,the right to Vote or participate in management and any right to information concerning the business and affairs of the Company provided under the Act,except as limited by the provisions of this Agreement. ARTICLE II: ARTICLES OF ORGANIZATION 2.1. The name of the Company is the MOUNTAIN SONG,LLC, a Delaware limited liability company. 2.2. The principal executive office of the Company shall be at c/o DAVID HOUSTON, whose address is 4203 Yoakum Blvd. Suite 200,Houston Texas 77006, or such other place or places as may be determined by the Manager from time to time. 2.3. The initial agent for service of process on the Company in the state of Delaware shall be National Corporate Research,Ltd., 615 South Du Pont Highway,Dover,DE 19901 pro- vided that the Manager may,from time to time,change such Delaware agent. 2.4. The Company will be formed for the purposes of acquiring and holding that cer- tain real property commonly known as 220 W.Buttermilk Road,Aspen Colorado and any other lawful business venture. 2.5. The Member intends the Company to be a limited liability company under the Act and licensed to do business in the state of Delaware and any other jurisdictions it is qualified to do business in. Neither the Manager nor any Member shall take any action inconsistent with the express intent of the parties to this Agreement. 2.6. The term of existence of the Company shall commence on the effective date of fil- ing of the Certificate of Formation with the Delaware Secretary of State,and shall continue until December 31, 2060,unless sooner terminated by the provisions of this Agreement or as provided by law. 2.7. The name and address of the Initial Member is as set forth in Exhibit B. 2.8. The name and business address of the Manager(s) are as follows: David Houston 4203 Yoakum Blvd, Suite 200 Houston Texas 77006 Page 5 Wilbur E.Bosarge 4203 Yoakum Blvd,Suite 200 Houston,Texas 77006 2.9 All property owned by the Company shall be held in the name of the Company unless the Managers determine otherwise in which case if title to property owned by the Com- pany is in the name of other than the Company,the Managers shall retain sufficient documenta- tion to provide adequate proof of the Company's ownership of said property. The Member shall execute any documents that may be necessary to reflect the Company's ownership of its property and shall record the document in the public offices that may be necessary or desirable in the dis- cretion of the Manager. No Member shall have the right or power to demand or receive Com- pany property in return for the Member's contribution. 2.10 This Company is being set up as a single member limited liability company and as such this agreement only contemplates that the Company will have one Member. Should addi- tional Members be admitted to the Company as provided for herein the Manager and then Mem- bers shall cause this agreement to be amended in order to provide for the existence of multiple Members and their relative rights and obligations herein. ARTICLE III: CAPITAL AND CAPITAL CONTRIBUTIONS 3.1. The Member shall contribute to the capital of the Company as the Member's ini- tial Capital Contribution the money and property specified in Exhibit B.The initial Fair Market Value of each item of contributed property net of liabilities secured by such property that the Company is considered to assume or to take "subject to"under the principles of IRC section 752, is also set forth in Exhibit B,together with the description and amount of these liabilities. 3.2. The Managers may determine from time to time that Capital Contributions in ad- dition to the Members'initial Capital Contributions are needed to enable the Company to conduct its financial affairs. On making such a determination, the Managers shall give notice to the Member in writing at least 90 days before the date on which such additional Capital Contribution is due.The Notice shall set forth the amount of additional Capital Contribution needed,the pur- pose for which it is needed,and the date by which the Members shall contribute the requested additional capital.Notwithstanding the foregoing,the Member shall not be required to make any additional Capital Contributions to the Company even if requested by the Manager. 3.3 A Capital Account shall be maintained for the Member in accordance with the requirements of Regulation Section 1.704-1(b)(2)(iv)as applicable to partnerships(although it is herein acknowledged that the Company is not a partnership for United States tax purposes but rather is treated as a disregarded entity)and adjusted in accordance with the following provi- sions: (a) The Member's Capital Account shall be increased by the Member's Capital Contribution,and the Company Profits. Page 6 (b) The Member's Capital Account shall be increased by the amount of any Company liabilities assumed by the Member subject to and in accordance with principles similar to those contained in Reg Section 1.704-1(b)(2)(iv)(c). (c) The Member's Capital Account shall be decreased by(a)the amount of cash distributed to the Member;(b)the Fair Market Value of any property of the Company so distributed,net of liabilities secured by such distributed property that the distributee Member is considered to assume or to be subject to under the prin- ciples similar to those contained in IRC section 752; and(c)all Company Losses. (d) The Member's Capital Account shall be reduced by any expenditures of the Company described in IRC section 705(a)(2)(B)or which,if the Company were treated as a partnership for United States tax purposes, are treated as IRC section 705(a)(2)(B)expenditures pursuant to Reg section 1.704- 1(b)(2)(iv)(i) (including syndication expenses and losses nondeductible under IRC sections 267(a)(1) or 707(b)). 3.4 The Member shall not be entitled to withdraw any part of the Member's Capital Contribution or to receive any distributions,whether of money or property,from the Company except as provided in this Agreement. 3.5 No interest shall be paid on Capital Contributions or on the balance of the Mem- ber's Capital Account. 3.6 The Member shall not be bound by,or be personally liable for the expenses,li- abilities,or obligations of the Company except as otherwise provided in the Act or in this Agree- ment. 3.7 The Member will not be required to restore a deficit in the Member's Capital Ac- count upon the liquidation of the Company or the Member's Membership Interest. ARTICLE IV:ALLOCATIONS AND DISTRIBUTIONS 4.1. The Profits and Losses of the Company and all items of Company income,gain, loss,deduction,or credit shall,for Company book purposes and for tax purposes,be charged to the Member. 4.2 As used in this Agreement, "Profits and Losses"means,for each fiscal year or other period specified in this Agreement,an amount equal to the Company's taxable income or loss for such year or period,determined in accordance with the principles of IRC section 703(a), including all items of income,gain,loss,expense,deduction or credit required to be stated sepa- rately pursuant to the principles of IRC section 703(a)(1),with the following adjustments: (a) Any income of the Company that is exempt from United States federal in- - f come tax and not otherwise taken into account in computing Profits or Losses shall be added to such taxable income or loss; Page 7 (b) Any expenditures of the Company described in IRC section 705(a)(2)(B) or which,if the Company were a partnership, are treated as IRC section 705(a)(2)(B)expenditures pursuant to Reg section 1.704-1(b)(2)(iv)(i) and not otherwise taken into account in computing Profits or Losses shall be subtracted from such taxable income or shall increase such loss;and (c) Gain or loss resulting from any disposition of Company property with re- spect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Fair Market Value of the property disposed of,not- withstanding that the adjusted tax basis of such property differs from its Fair Mar- ket Value; 4.3. Any unrealized appreciation or unrealized depreciation in the values of Company property distributed in kind to the Member shall be deemed to be Profits or Losses realized by the Company immediately prior to the distribution of the property and such Profits or Losses shall be allocated to the Members Capital Account provided however that nothing contained herein shall be deemed to result in any such in kind distribution being treated as an actual sale or other United States taxable disposition of such distributed property. 4.4. In the case of a Transfer of an Economic Interest during any fiscal year of the Company,the Assigning Member and Assignee shall each be allocated Profits or Losses based on the number of days each held the Economic Interest during that fiscal year provided that if the Assigning Member and Assignee agree to a different proration and advise the Managers of the agreed proration before the date of the Transfer then such different proration shall be used to the extent not otherwise precluded by any applicable law or regulation governing the allocations set forth herein. If an Assignee makes a subsequent Assignment,said Assignee shall be considered an"Assigning Member"with respect to the subsequent Assignee for purposes of the aforesaid al- locations. 4.5. All Available Cash,other than revenues or proceeds relating to the dissolution of the Company,shall be distributed to the Member at the sole discretion of the Manager.The par- ties acknowledge that no assurances can be given with respect to when or whether said cash will be available for distributions to the Member. To the extent that any Available Cash has not been distributed to the Member by the Manager such undistributed Available Cash shall be added to the investment base of the Company and appropriately invested by the Manager in a manner con- sistent with the investment policies then in effect for the Company. 4.6. If the proceeds from a sale or other disposition of an item of Company property consist of property other than cash,the value of that property shall be as determined by the Man- agers.If such non-cash proceeds are subsequently reduced to cash,such cash shall be taken into account by the Managers in determining Available Cash. 4.7. Notwithstanding any other provisions of this Agreement to the contrary,when there is a distribution in liquidation of the Company,or when the Member's interest is liquidated, • all items of income and loss first shall be allocated to the Members'Capital Accounts under this Article IV,and other credits and deductions to the Members'Capital Accounts shall be made be- Page 8 fore the final distribution is made.The final distribution to the Members shall be made as pro- vided in Article VIII, Section 8.2(d) of this Agreement. ARTICLE V: MANAGEMENT 5.1. The business and investment activities of the Company shall be managed by the Person(s)named as Manager(s)in Article II, Section 2.8 or any successor, selected by the Mem- ber as provided for in Section 5.3,provided that the Manager(s)may appoint such officers of the Company they deems necessary and appropriate including but not limited to a President, and a Secretary. If no Manager(s) are selected by the Member then the Member shall be deemed to be the Manager.Except as otherwise provided in this Agreement, all decisions concerning the man- agement of the Company's business and investment activities shall be made by the Manager(s) or if the Manager(s)so appoint the applicable Officers. The Company may have one or two Man- ager as the Member may, from time to time,decide provided that,in the event that there are two Manager,each Manager,acting alone and in their respective capacity as one of the Managers of the Company, shall have the full and complete authority to act on behalf of the Company without the consent or approval of the other Manager and may individually, in their respective capacity as a Manager of the Company,transact business and otherwise represent the Company without the approval or consent of the other Manager. 5.2. Each manager shall serve until the earlier of(1) the Manager's resignation,retire- ment, death,or disability; or(2) the Manager's removal by the Member. 5.3. Each Manager shall be appointed by the Member for(a) a term expiring with the appointment of a successor, or(b)a term expiring at a definite time specified by the Member in connection with such an appointment. 5.4. The Manager(s) and,if duly appointed by the Manager(s), the President and Sec- retary of the Company shall have all of the powers and duties needed to carry out his or her du- ties as manager and as otherwise authorized by the Act or other law and such other powers and duties as may be prescribed in this Agreement or by the Member.Notwithstanding the foregoing, the Manager(s) and,if duly appointed by the Manager(s),the President and or Secretary,shall not take any of the following actions on behalf of the Company unless the Member has consented to the taking of such action. (a) Any act that would make it impossible to carry on the ordinary business of the Company; (b) Any confession of a judgment against the Company; (c) The disposition of all or a substantial part of the Company's assets not in the ordinary course of business; (d) The incurring of any debt not in the ordinary course of business; Page 9 (e) A change in the nature of the principal business of the Company; (f) The incurring of any contractual obligation or the making of any capital expenditure with a total cost of more than$250,000 provided that the Manager shall be authorized to engage in routine securities trading activi- ties (ie: the purchase and sale of publicly traded marketable securities) for individual trades up to a maximum limit of$250,000 per trade without the consent of the Member; (g) The filing of a petition in bankruptcy or the entering into of an arrange- ment among creditors; and (h) The entering into,on behalf of the Company,of any transaction constitut- ing a"reorganization" within the meaning of the Act. (i) The assessment of a capital call against the Members under Section 3.2 to the extent that such capital call,when aggregated with all other capital calls during the twelve month period ending on the date of such call ag- gregate to more than$10,000. 5.5. Actions of the Manager(s)shall be taken at meetings or as otherwise provided in this Section 5.5. No regular meetings of the Manager(s) need be held. The Manager(s)may call a meeting by giving Notice to the Member of the time and place of the meeting at least 48 hours prior to the time of the holding of the meeting.The Notice need not specify the purpose of the meeting, nor the location if the meeting is to be held at the principal executive office of the Company. Except with respect to the matters listed in Section 5.4, any action required or permitted to be taken by the Manager(s) and,if duly appointed by the Manager(s), the President and or Sec- retary under this Agreement may be taken without a meeting. The Manager(s) and, if duly appointed by the Manager(s), the President and or Secretary shall keep or cause to be kept with the books and records of the Company full and accurate min- utes of all meetings,notices and waivers of notices of meetings,and all written consents to ac- tions of the Manager(s). 5.6. It is acknowledged that the Manager(s) and the appointed officers may have other business interests to which the Manager(s) devote part of the Managers' time.The Manager(s) shall devote such time to the conduct of the business of the Company as the Manager(s),in each Manager's own good faith and discretion, deems necessary. 5.7. The Manager(s) and, if duly appointed by the Manager(s),the President and or Secretary shall be entitled to compensation for the Manager's or the appointed officer's services as determined by the Member, and to reimbursement for all expenses reasonably incurred by each Manager in the performance of the Manager's duties. Page 10 5.8. Unless otherwise authorized by the Member, the Manager(s) shall cause all assets of the Company,whether real or personal,to be held in the name of the Company. 5.9. All funds of the Company shall be deposited in one or more accounts with one or more recognized financial institutions in the name of the Company, at such locations as shall be determined by the Manager(s)or,if duly appointed by the Manager(s), the President and or Sec- retary.Withdrawal from such accounts shall require only the signature of any one Manager or such other person or persons as the Manager(s)may designate including,if duly appointed by the Manager(s),the President and or Secretary. ARTICLE VI: ACCOUNTS AND ACCOUNTING 6.1. Complete books of account of the Company's business, in which each Company transaction shall be fully and accurately entered, shall be kept at the Company's principal execu- tive office and at such other locations as the Managers and or the appointed officers shall deter- mine from time to time and shall be open to inspection and copying on reasonable Notice by the Member or the Member's authorized representatives during normal business hours.The costs of such inspection and copying shall be borne by the Member. 6.2. Unless otherwise required by the Code or other laws applicable to the Company by the country of Bermuda,financial books and records of the Company shall be kept on the cash method of accounting.The financial statements of the Company shall,to the extent reasonably possible,be prepared in accordance with United States generally accepted accounting principles, shall be appropriate and adequate for the Company's business and investing activities and for car- rying out the provisions of this Agreement.The fiscal year of the Company shall be January 1 through December 31. 6.3. At all times during the term of existence of the Company, and beyond that term if the Managers deem it necessary, the Managers and or the appointed officers shall keep or cause to be kept the books of account referred to in Section 6.2,together with: (a) A current record of the full name and last known business or residence ad- dress of the Member,together with the Capital Contribution and the Member's share in Profits,Losses and distributions; (b) A current list of the full name and business or residence address of each Manager; (c) A copy of the Certificate of Formation, as amended; (d) A copy of any Limited Liability Company Application for Registration of a Foreign Limited Liability Company filed by the Managers and any amendments thereto with respect to any other jurisdiction to which the Company qualifies to do business in. Page 11 (e) An original executed copy or counterparts of this Agreement, as amended; (f) Any powers of attorney under which the Certificate of Formation or any amendments to said certificate were executed; (g) Financial statements of the Company for the six most recent fiscal years; and (h) The books and Records of the Company as they relate to the Company's internal affairs for the current and past four fiscal years. If the Managers and or the appointed officers deem that any of the foregoing items shall be kept beyond the term of existence of the Company,the repository of said items shall be as des- ignated by the Managers. 6.4. At the end of each fiscal year the books of the Company shall be closed and exam- ined and statements reflecting the financial condition of the Company and its Profits or Losses shall be prepared, and a report thereon shall be issued by the Company's certified public account- ants. Copies of the financial statements shall be given to the Member. The Managers and or the applicable appointed officer shall deliver to the Member,within 120 days after the end of the fis- cal year of the Company, a financial statement that shall include: (a) A balance sheet and income statement for the fiscal year; (b) A statement showing the Capital Account of each Member as of the close of the fiscal year and the distributions,if any, made to the Member during the fiscal year. The Member may request interim balance sheets and in- come statements, and may, at his own discretion and expense, obtain an audit of the Company books by certified public accountants selected by them;provided,however,that not more than one such audit shall be made during any fiscal year of the Company. ARTICLE VII: MEMBERSHIP-MEETINGS, VOTING,INDEMNITY 7.1. There shall be only one class of membership. The Member shall have the right and power to appoint,remove, and replace the Manager(s) and other officers of the Company and the right to Vote on all other matters with respect to which this Agreement or the Act requires or permits such Member action.If a Member has assigned all or part of the Member's Economic In- terest to a person who has not been admitted as a Member, the Assigning Member shall Vote for the Economic Interest so assigned. In addition to the actions set forth in Section 5.4,the follow- ing acts shall require the Vote of the Member: (a) The Transfer of a Membership Interest and the admission of the Assignee as a Member of the Company; (b) Any amendment of the Certificate of Formation or this Agreement; Page 12 (c) The dissolution of the Company; and (d) The admission of a second Member to the Company(other than as pro- vided for in clause(a) above. 7.2. The Company may,but shall not be required,to issue a certificate or certificates evidencing the Membership Interest(Membership Interest Certificates) to the Member of the Company. Once Membership Interest Certificates have been issued,they shall continue to be is- sued as necessary to reflect current Membership Interests held by Member. Membership Interest Certificates shall be in such form as may be approved by the Manager(s),shall be manually signed by the Manager(s). All issuance's,reissuances,exchanges, and other transactions in Mem- bership Interests involving the Member shall be recorded in a permanent ledger as part of the books and records of the Company. 7.3. A Member Meeting may be called at any time by the Manager(s)or by the Mem- ber for the purpose of addressing any matters on which the Member may Vote.If a meeting of the Member is called by the Member,Notice of the call of such meeting shall be delivered to the Manager(s)not Iess than 30 days prior to the scheduled date of the meeting. Meetings may be held at the principal executive office of the Company or at such other location as may be mutu- ally agreed to by the Member and the Manager(s). The Notice by the Member to the Manager(s) shall state the place,date, and hour of the meeting and the general nature of the business to be transacted. No other business may be transacted at the meeting. 7.4. Either the Manager(s)or the Member or both may participate in a meeting through use of conference telephone or similar communications equipment provided that the Manager(s) and the Member can adequately communicate with each other through the medium so selected. Such participation shall be deemed attendance at the meeting. 7.5. Any action that may be taken at any meeting requested by either the Member or the Manager(s)may be taken without a meeting if a consent in writing, setting forth the action so taken, is signed by the Member or the Manager(s) as the case may be. If the Member is requested to consent to a matter without a meeting the Member shall be given notice of the matter to be consented to. 7.6. The Member acting solely in his capacity as the Member is not an agent of the Company,nor can the Member acting solely in his capacity as the Member bind the Company or execute any instrument on behalf of the Company. Notwithstanding the foregoing,if the Mem- ber is the Manager(s)then any actions taken by the Member shall be deemed made in his capac- ity as a Manager. ARTICLE VIII: DISSOLUTION AND WINDING UP 8.1. The Company shall be dissolved upon the first to occur of the following events: (a) The death,bankruptcy, retirement,resignation,termination,or dissolution of the Member. Page 13 (b) The expiration of the term of existence of the Company. (c) The written agreement between the Member and the Company to dissolve the Company. (d) The sale or other disposition of substantially all of the Company's assets. (e) Entry of a decree of judicial dissolution under the Act. 8.2. On the dissolution of the Company,the Company shall engage in no further busi- ness other than that necessary to wind up the business and affairs of the Company.The Man- ager(s)or,if there is no such Manager(s),the Member,shall wind up the affairs of the Company. The person in charge of winding up the Company shall be referred to as the Delegate. The Dele- gate winding up the affairs of the Company shall give Notice of the commencement of winding up by mail to all known creditors and claimants against the Company whose addresses appear in the records of the Company.After paying or adequately providing for the payment of all known debts of the Company(except debts owing to the Member),the remaining assets of the Company shall be distributed or applied in the following order: (a) To pay the expenses of liquidation. (b) To the establishment of reasonable reserves by the Delegate for contingent liabilities or obligations of the Company.Upon the Delegate's determina- tion that such reserves are no longer necessary,said reserves shall be dis- tributed as provided in this Section 8.2. (c) To repay outstanding loans to the Member. (d) The balance,if any,to the Member. 8.3. The Member shall look solely to the assets of the Company for the return of the Member's investment,and if the Company property remaining after the payment or discharge of the debts and liabilities of the Company is insufficient to return the investment of the Member, such Member shall have no recourse against the Company for indemnification,contribution,or reimbursement,except as specifically provided in this Agreement. 8.4 The Member shall have no right to receive a return of any of their contributions to the Company until the Company is terminated and its affairs wound up in accordance with this Article VIII and this Agreement. ARTICLE IX: INDEMNIFICATION 9.1. The Company shall have the power to indemnify any Person who was or is a par- ty,or who is threatened to be made a party,to any Proceeding by reason of the fact that such Per- son was or is a Member,Manager,officer,employee,or other agent of the Company,or was or is serving at the request of the Company as a director, officer,employee,or other Agent of another limited liability company, corporation,partnership,joint venture,trust,or other enterprise, Page 14 against expenses,judgments,fines,settlements,and other amounts actually and reasonably in- curred by such Person in connection with such proceeding,if such Person acted in good faith and in a manner that such Person reasonably believed to be in the best interests of the Company, and, in the case of a criminal proceeding, such Person had no reasonable cause to believe that the Per- son's conduct was unlawful.The termination of any proceeding by judgment, order,settlement, conviction,or upon a plea of nolo contendere or its equivalent,shall not,of itself,create a pre- sumption that the Person did not act in good faith and in a manner that such Person reasonably believed to be in the best interests of the Company,or that the Person had reasonable cause to be- lieve that the Person's conduct was unlawful. • To the extent that an agent of the Company has been successful on the merits in defense of any Proceeding,or in defense of any claim,issue,or matter in any such Proceeding,the agent shall be indemnified against expenses actually and reasonably incurred in connection with the Proceeding.In all other cases,indemnification shall be provided by the Company only if author- ized in the specific case by the Member.. "Agent," as used in.this Section 9.1,shall include a trustee or other fiduciary of a plan, trust,or other entity or arrangement described in the applicable provisions of the Delaware state statutes. "Proceeding," as used in this Section 9.1,means any threatened,pending,or completed action or proceeding,whether civil,criminal,administrative,or investigative. Expenses of each Person indemnified under this Agreement actually and reasonably in- curred in connection with the defense or settlement of a proceeding may be paid by the Company in advance of the final disposition of such proceeding, as authorized by the Manager who is not seeking indemnification or,if there are none,by the Member,upon receipt of an undertaking by such Person to repay such amount unless it shall ultimately be determined that such Person is en- titled to be indemnified by the Company. "Expenses," as used in this Section 9.1,includes,with- out limitation,attorney fees and expenses of establishing a right to indemnification,if any,under this Section 9.1. ARTICLE X:ATTORNEY-IN-FACT AND AGENT 10.1. The Member,by execution of this Agreement,irrevocably constitutes and ap- points the Manager(s)acting alone as such Member's true and lawful attorney-in-fact and agent, with full power and authority in such Member's name,place, and stead to execute,acknowledge, and deliver,and to file or record in any appropriate public office: (a)any certificate or other in- strument that may be necessary,desirable,or appropriate to qualify the Company as a limited li- ability company or to transact business or otherwise carry on its investment activities as such in any jurisdiction in which the Company conducts business or otherwise has investments; (b)any certificate or amendment to the Company's certificate of formation or to any certificate or other instrument that may be necessary,desirable,or appropriate to reflect an amendment approved by the Member in accordance with the provisions of this Agreement; (c)any certificates or instru- ments that may be necessary,desirable,or appropriate to reflect the dissolution and winding up of the Company; and(d)any certificates necessary to comply with the provisions of this Agree- ment.This power of attorney will be deemed to be coupled with an interest and will survive the • Page 15 Transfer of the Member's Economic Interest. Notwithstanding the existence of this power of at- torney,the Member agrees to join in the execution, acknowledgment, and delivery of the instru- ments referred to above if requested to do so by a Manager(s).This power of attorney is a limited power of attorney and does not authorize any Manager(s)to act on behalf of a Member except as described in this Article X. ARTICLE XI: GENERAL PROVISIONS 11.1. Entire Agreement-This Agreement constitutes the whole and entire agreement of the parties with respect to the subject matter of this Agreement,and it shall not be modified or amended in any respect except by a written instrument executed by all the parties.This Agree- ment replaces and supersedes all prior written and oral agreements by and among the Members and Managers or any of them. 11.2. Counterparts-This Agreement may be executed in one or more counterparts,each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 11.3. Choice of Law-This Agreement shall be construed and enforced in accordance with the internal laws of the State of Delaware.If any provision of this Agreement is determined by any court of competent jurisdiction or arbitrator to be invalid,illegal, or unenforceable to any extent,that provision shall,if possible,be construed as though more narrowly drawn,if a nar- rower construction would avoid such invalidity,illegality,or unenforceability or, if that is not possible, such provision shall,to the extent of such invalidity, illegality,or unenforceability,be severed, and the remaining provisions of this Agreement shall remain in effect. 11.4. Successor and Assigns -This Agreement shall be binding on and inure to the ben- efit of the parties and their heirs,personal representatives, and permitted successors and assigns. 11.5. Use of Terms-Whenever used in this Agreement, the singular shall include the plural and the plural shall include the singular, and the neuter gender shall include the male and female as well as a trust,firm, company, or corporation, all as the context and meaning of this Agreement may require. 11.6. Additional Documents -The parties to this Agreement shall promptly execute and deliver any and all additional documents, instruments, notices, and other assurances, and shall do any and all other acts and things,reasonably necessary in connection with the performance of their respective obligations under this Agreement and to carry out the intent of the parties. 11.7. Other Activities -Except as provided in this Agreement,no provision of this Agreement shall be construed to limit in any manner the Member in the carrying on of his own respective businesses or activities. 11.8. Capacity- The Member represents and warrants to the Company that the Member has the capacity and authority to enter into this Agreement. Page 16 11.9. Titles&Headings-The article, section, and paragraph titles and headings con- tained in this Agreement are inserted as matter of convenience and for ease of reference only and shall be disregarded for all other purposes,including the construction or enforcement of this Agreement or any of its provisions. 11.10. Amendment -This Agreement may be altered, amended, or repealed only by a writing signed by all of the Members. 11.11. Time of the Essence-Time is of the essence of every provision of this Agreement that specifies a time for performance. 11.12. Parties Benefited-This Agreement is made solely for the benefit of the parties to this Agreement and their respective permitted successors and assigns, and no other person or en- tity shall have or acquire any right by virtue of this Agreement. IN WITNESS WHEREOF,the parties have executed or caused to be executed this Agreement on the day and year first above written. 1 The MEMBER: Andypolo,LP, a Delaware limited partnership By: Andypolo,LLC Its: General Partne • By: in D40/ avi ouston Its: Manager The COMPANY: Mountain Song,LLC a Delaware i• 'ted abilitycompany By: /7 Davi" ouston Its: Manager The MAN• GE' : / OF David ':i• .n 11 l l! ./_ ,, iAk. Wi'eurE. 'i •sarge Page 17 Mountain Song,LLC Exhibit B Andypolo,LP • • • do David Houston 4203 Yoakum Blvd,Suite 200 Houston Texas,77006 Assets being contributed by the Member to the Company as the initial Capital Contribution: • Cash in the amount of$ /0, • • • • OPERATING AGREEMENT FOR THE MOUNTAIN TUNE,LLC THIS OPERATING AGREEMENT is entered into as of this 28th day of August, 2013 by and between ANDYPOLO, LP, a Delaware limited partnership (the Member), DAVID J. HOUSTON as the Manager of the Company(as such term is herein defined), and MOUNTAIN TUNE, LLC, a Delaware limited liability company. RECITALS A. On August 27, 2013 the Member caused to be filed a Certificate of Formation (the "Certificate") for Mountain Tune, LLC (the "Company") a limited liability company under the laws of the state of Delaware. B. The Member enter into this Agreement to form and provide for the governance of the Company and the conduct of its business. NOW THEREFORE,the Member agree as follows; ARTICLE I: DEFINITIONS Capitalized terms used in this Agreement have the meanings specified in this Article or elsewhere in this Agreement and when not so defined shall have the meanings set forth in the Delaware Limited Liability Company Statute. 1.1 "Act" means the Delaware Limited Liability Company Act under Article 6, • Chapter 18,including amendments from time to time. 1.2 "Affiliate" of a Member means (1) any Person directly or indirectly, through one or more intermediaries, controlling, controlled by, or under common control with the Member. The term "control" (including the terms "controlled by" and "under common control with") means the possession, direct or indirect, of the power to direct or cause the direction of the management and policies of a Person, whether through membership, ownership of voting securities,by contract,or otherwise. 1.3 "Agreement" means this operating agreement, as originally executed and as amended from time to time. 1.4. "Assignee" means a person who has acquired a portion of the Member's Economic Interest in the Company, by way of a Transfer in accordance with the terms of this Agreement,but who has not become a Member. 1.5. "Assigning Member" means a Member who by means of a Transfer has transferred an Economic Interest in the Company to an Assignee. 1.6. "Available Cash" means all net revenues from the Company's operations, including net proceeds from all sales, refinancing, and other dispositions of Company property that the Manager, in the Manager's sole discretion, deems in excess of the amount reasonably necessary for the operating requirements of the Company, including debt reduction and Reserves. 1.7. "Capital Account"means, with respect to the Member, the account reflecting the capital interest of the Member in the Company, consisting of the Member's initial Capital Contribution maintained and adjusted in accordance with Article III, Section 3.3. 1.8. "Capital Contribution" means, with respect to the Member, the amount of the money and the Fair Market Value of any property (other than money) contributed to the Company(net of liabilities seemed by such contributed property that the Company is considered to assume or take "subject to" under the principles of IRC section 752) in consideration of the Membership Interest held by the Member. A Capital Contribution shall not be deemed a loan. 1.9. "Code"or"IRC"means the Internal Revenue Code of 1986, as amended, and any successor provision. 1.10. "Company" means the company named in Article II, Section 2.1 of this Agreement 1.11 `Economic Interest"means a Person's right to share in the income, gains, losses, deductions, credits and or similar items of, and to receive distributions from, the Company, but does not include any other rights of a Member, including the right to vote or to participate in management. 1.12. "Encumber" means the act of creating or purporting to create an Encumbrance, whether or not perfected under applicable law. 1.13. "Encumbrance" means, with respect to any Membership Interest, or any element thereof, a mortgage, pledge, security interest, lien, proxy coupled with an interest (other than as contemplated in this Agreement),option, or preferential right to purchase. 2 1.14. `Initial Member(s)"means the Person whose name is set forth in the first sentence • of this Agreement. 1.15. "Involuntary Transfer" means, with respect to the Membership Interest, or any element thereof, any Transfer or Encumbrance, by operation of law, pursuant to court order, foreclosure of a security interest, execution of a judgment or other legal process, or otherwise, including a purported transfer to or from a trustee in bankruptcy, receiver, or assignee for the benefit of creditors. 1.16. "Losses." See Article IV, Section 4.2. 1.17 "Manager" means the Person(s) named as such in Article II or the Person(s) who from time to time succeed any such Person(s) as a Manager and who, in either ease, are serving at the relevant time as a Manager. 1.18. "Member(s)" means the Initial Member or a Person who otherwise acquires a Membership Interest, as permitted under this Agreement, and who remains a Member. 1.19. "Membership Interest"means the Member's rights in the Company, collectively, including the Member's Economic Interest, any right to Vote or participate in management, and any right to information concerning the business and affairs of the Company. 1.20. "Notice" means a written notice required or permitted under this Agreement A notice shall be deemed given or sent when deposited, as certified mail or for overnight delivery, postage and fees prepaid, in the United States mails or in the equivalent thereof for the county of Domicile of the Member; when delivered to Federal Express, United Parcel Service, DHL Worldwide Express, or Airborne Express, for overnight delivery, charges prepaid or charged to the sender's account; when personally delivered to the recipient; when transmitted by electronic means, and such transmission is electronically confirmed as having been. successfully transmitted; or when delivered to the home or office of a recipient in the care of a person whom the sender has reason to believe will promptly communicate the notice to the recipient. 1.21. "Person" means an individual, partnership, limited partnership, trust, estate, association,corporation,limited liability company,or other entity,whether domestic or foreign. 1.22. "Profits"and"Profits and Losses"are defined in Article IV, Section 4.2. 1.23. "Regulations" ("Reg") means the income tax regulations promulgated by the United States Department of the Treasury and published in the Federal Register for the purpose of interpreting and applying the provisions of the Code, as such Regulations may be amended from time to time,including corresponding provisions of applicable successor regulations. 3 1.24. "Reserves" means the aggregate of reserve accounts that the Manager, in the Manager's sole discrelior deems reasonably necessary to meet accrued or contingent liabilities of the Company,reasonably anticipated operating expenses,and working capital requirements. 1.25. "Successor in Interest" means an Assignee, a successor of a Person by merger or otherwise by operation of law, or a transferee of all or substantially all of the business or assets of a Person. 1.26. "Transfer" means, 'with respect to a Membership Interest or any element of a Membership Interest, any sale, assignment, gift, Involuntary Transfer, Encumbrance, or other disposition of such a Membership Interest or any element of' such Membership Interest, directly or indirectly,other than an Encumbrance that is expressly permitted under this Agreement. 1.27. "Vote"means a written consent or approval, a ballot cast at a meeting, or a voice vote. 1.28 "Voting Interest" means, with respect to a Member, the right to Vote or participate in management and any right to information concerning the business and affairs of the Company provided under the Act, except as limited by the provisions of this Agreement. ARTICLE II: ARTICLES OF ORGANIZATION 2.1. The name of the Company is the Mountain Tune, LLC, a Delaware limited II- ability company. 2.2. The principal executive office of the Company shall be at 4203 Yoakum Boulevard, Suite 200,Houston, Texas 77006 or such other place or places as may be determined by the Manager from time to time. 2.3. The initial agent for service of process on the Company in the state of Texas shall be David J. Houston, 4203 Yoakum Boulevard, Suite 200, Houston, Texas 77006 and the registered agent in the state of Delaware shall be National Corporate Research, Ltd., 615 South DuPont Highway, Dover, DL 19901 provided that the Manager may, from time to time, change such Delaware agent. 2.4. The Company will be formed for the purposes of engaging in any lawful purpose. 2.5. The Member intends the Company to be a limited liability company under the Act and licensed to do business in the state of Delaware and any other jurisdictions it is qualified to do business in. Neither the Manager nor any Member shall take any action inconsistent with the express intent of the parties to this Agreement. 4 2.6. The term of existence of the Company shall commence on the effective date of filing of the Certificate of Formation with the Delaware Secretary of State, and shall continue until September 16, 2056, unless sooner terminated by the provisions of this Agreement or as provided by law. 2.7. The name and address of the Initial Member are set forth in Exhibit"A". 2.8. The name and business address of the Manager is as follows: David J. Houston, 4203 Yoakum Boulevard, Suite 200,Houston,Texas 77006. 2.9 All property owned by the Company shall be held in the name of the Company unless the Manager determines otherwise in which case if title to property owned by the Company is in the name of other than the Company, the Manager shall retain sufficient documentation to provide adequate proof of the Company's ownership of said property. The Member shall execute any documents that may be necessary to reflect the Company's ownership of its property and shall record the document in the public offices that may be necessary or desirable in the discretion of the Manager. No Member shall have the right or power to demand or receive Company property in return for the Member's contribution. 2.10 This Company is being setup as a single member limited liability company and as such this agreement only contemplates that the Company will have one Member. Should additional Members be admitted to the Company as provided for herein the Manager and then Member shall cause this agreement to be amended in order to provide for the existence of additional Members and their relative rights and obligations herein. ARTICLE III: CAPITAL AND CAPITAL CONTRIBUTIONS 3.1. The Member shall contribute to the capital of the Company as the Member's initial Capital Contribution the money and property specified in Exhibit "A". The initial Fat Market Value of each item of contributed property net of liabilities secured by such property that the Company is considered to assume or to take"subject to"under the principles of IRC section 752,is also set forth in Exhibit"A",together with the description and amount of these liabilities. 3.2. The Manager may determine from time to time that Capital Contributions in addition to the initial Capital Contributions are needed to enable the Company to conduct its financial affairs. On making such a determination, the Manager shall give notice to the Member in writing at least 90 days before the date on which such additional Capital Contribution is due. The Notice shall set forth the amount of additional Capital Contribution needed, the purpose for which it is needed, and the date by which the Member shall contribute the requested additional capital. 5 3.3 A Capital Account shall be maintained for the Member in accordance with the requirements of Regulation Section 1.704-1 (b)(2)(iv) as applicable to partnerships (although it is herein acknowledged that the Company is not a partnership for United States tax purposes but rather is treated as a disregarded entity) and adjusted in accordance with the following provisions: (a) The Member's Capital Account shall be increased by the Member's Capital Contribution, and the Company Profits. (b) The Member's Capital Account shall be increased by the amount of any Company liabilities assumed by the Member subject to and in accordance with principles similar to those contained in Regulation Section 1.704-1 (bX2)(iv) (c) The Member's Capital Account shall be deceased by (a) the amount of cash distributed to the Member, (J) the Fair Market Value of any property of the Company so distributed, net of liabilities secured by such distributed property that the distributee Member is considered to assume or to be subject to under the principles similar to those contained in IRC section 752; and(c) all Company Losses. (d) The Member's Capital Account shall be reduced by any expenditures of the Company described in IRC section 705(a)(2)(B) or which, if the Company were treated as a partnership for United States tax purposes, are treated as IRC section 705(a)(2)(B) expenditures pursuant to Reg section 1.704- 1(b)(2)(iv)(i) (including syndication expenses and losses nondeductible under IRC sections 267(a)(1) or 707(b)). 3.4 The Member shall not be entitled to withdraw any part of the Member's Capital Contribution or to receive any distributions, whether of money or property, from the Company except as provided in this Agreement 3.5 No interest shall be paid on Capital Contributions or on the balance of the Member's Capital Account. 3.6 The Member shall not be bound by, or be personally liable for the expenses, liabilities, or obligations of the Company except as otherwise provided in the Act or in this Agreement 3.7 The Member will not be required to restore a deficit in the Member's Capital Account upon the liquidation of the Company or the Member's Membership Interest. 6 ARTICLE IV: ALLOCATIONS AND DISTRIBUTIONS 4.1. The Profits and Losses of the Company and all items of Company income, gain, loss, deduction, or credit shall, for Company book purposes and for tax purposes, be charged to the Member. 4.2 As used in this Agreement, "Profits and Losses" means, for each fiscal year or other period specified in this Agreement an amount equal to the Company's taxable income or loss for such year or period, determined in accordance with the principles of IRC section 703(a), including all items of income, gain, loss, expense, deduction or credit required to be stated separately pursuant to the principles of IRC section 703(a)(l),with the following adjustments: (a) Any income of the Company that is exempt from United States federal income tax and not otherwise taken into account in computing Profits or Losses shall be added to such taxable income or loss; (b) Any expenditures of the Company described in IRC section 705(a)(2)(B) or which, if the Company were a partnership, are treated as IRO section 705(a)(2)(B) expenditures pursuant to Reg section 1.704-1(b)(2)(iv)(i) and not otherwise taken into account in computing Profits or Losses shall be subtracted from such taxable income or shall increase such loss; and (c) Gain or loss resulting from any disposition of Company property with respect to which gain or loss is recognized for federal income tax purposes shall be computed by reference to the Fair Market Value of the property disposed of,notwithstanding that the adjusted tax basis of such property differs from its Fair Market Value; 4.3. Any unrealized appreciation or unrealized depreciation in the values of Company property distributed in kind to the Member shall be deemed to be Profits or Losses realized by the Company immediately prior to the distribution of the property and such Profits or Losses shall be allocated to the Member Capital Account provided however that nothing contained herein shall be deemed to result in any such in kind distribution,being treated as an actual sale or other United States taxable disposition of such distributed property. 4.4. In the case of a Transfer of an Economic Interest during any fiscal year of the Company, the Assigning Member and Assignee shall each be allocated Profits or Losses based on the number of days each held the Economic Interest during that fiscal year provided that if the Assigning Member and Assignee agree to a different proration and advise the Manager of the agreed proration before the date of the Transfer then such different proration shall be used to the extent not otherwise precluded by any applicable law or regulation governing the allocations set forth herein. If an Assignee makes a subsequent Assignment, said Assignee shall be considered an "Assigning Member" 'with respect to the subsequent Assignee for purposes of the aforesaid allocations. 7 4.5. All Available Cash, other than revenues or proceeds relating to the dissolution of the Company, shall be distributed to the Member at the sole discretion of the Manager. The parties acknowledge that no assurances can be given with respect to when or whether said cash will be available for distributions to the Member. To the extent that any Available Cash has not been distributed to the Member by the Manager such undistributed Available Cash shall be added to the investment base of the Company and appropriately invested by the Manager in a manner consistent with the investment policies then in effect for the Company. 4.6. If the proceeds from a sale or other disposition of an item of Company property consist of property other than cash, the value, of that property shall be as determined by the Manager. If such non-cash proceeds are subsequently reduced to cash, such cash shall be taken into account by the Manager in determining Available Cash. 4.7. Notwithstanding any other provisions of this Agreement to the contrary, when there is a distribution in liquidation of the Company, or when the Member's interest is liqui- dated, all items of income and loss first shall be allocated to the Member's Capital Accounts under this Article IV, and other credits and deductions to the Member's Capital Accounts shall be made before the final distribution is made.The final distribution to the Member shall be made as provided in Article VIII, Section 8.2(d)of this Agreement. ARTICLE V: MANAGEMENT • 5.1 The business and investment activities of the Company shall be managed by the Person(s) named as Manager(s) in Article II, Section 2.8 or any successor, selected by the Member as provided for in Section 5.3, provided that the Manager(s) may appoint such officers of the Company they deems necessary and appropriate including but not limited to a President, and a Secretary. If no Manager are selected by the Member then the Member shall be deemed to be the Manager. Except as otherwise provided in this Agreement, all decisions concerning the management of the Company's business and investment activities shall be made by the Manager or if the Manager so appoint the applicable Officers. If the Member selects more than one Manager then either Manager, being duly appointed as such, acting alone, shall have the individual authority and capacity to transaction business and make decisions for and on behalf of the Company. In addition to the foregoing any such duly appointed manager, acting alone shall have the capacity and authority, in his capacity as a duly appointed manager of the Company, and without and further written approval of the Member, to execute any and all documents, agreements, deeds, assignments, escrow instructions, promissory notes, security agreements, purchase and sale agreements, addendums and any other documents or writings with respect to the acquisition, ownership and or conveyance of any parcel or parcels of real and or personal property owned or to be owned by the Company. 8 5.2. Each manager shall serve until the earlier of (1) the Manager's resignation, retirement,death, or disability; or(2)the Manager's removal by the Member. 5.3. Each Manager shall be appointed by the Member for (a) a term expiring with the appointment of a successor, or(b) a term expiring at a definite time specified by the Member in connection with such an appointment. 5.4. The Manager(s) add, if duly appointed by the Manager, the President and Secretary of the Company shall have all of the powers and duties needed to carry out his or her duties as manager and as otherwise authorized by the Act or other law and such other powers and duties as may be prescribed in this Agreement or by the Member. Notwithstanding the foregoing, the Manager and,if duly appointed by the Manager,the President and or Secretary, shall not take any of the following actions on behalf of the Company unless the Member has consented to the taking of such action. (a) Any act that would make it impossible to carry on the ordinary business of the Company; (b) Any confession of a judgment against the Company; (c) The disposition of all or a substantial part of the Company's assets not in the ordinary course of business; (d) The incurring of any debt not in the ordinary course of business; (e) A change in the nature of the principal business of the Company; (f) The incurring of any contractual obligation or the making of any capital expenditure with a total cost or value of more than $250,000 provided that the Manager shall be authorized to engage in routine securities trading activities (ie: the purchase and sale of publicly traded marketable securities) for individual trades up to a maximum limit of$250,000 per trade without the consent of the Member and provided further that the Manager shall be authorized to open brokerage accounts and to hire investment and other money Manager without the consent of the Member; (g) The filing of a petition in bankruptcy or the entering into of an arrangement among creditors; and (h) The entering into, on behalf of the Company, of any transaction constituting a "reorganization"within the meaning of the Act. 9 (i) The assessment of a capital call against the Member under Section 3.2 to the extent that such capital call,when aggregated with all other capital calls during the twelve month period ending on the date of such call aggregate to more than$20,000. 5.5. Actions of the Manager shall be taken at meetings or as otherwise provided in this Section 5.5. No regular meetings of the Manager need beheld. The Manager may call a meeting by giving Notice to the Member of the time and place of the meeting at least 48 hours prior to the time of the holding of the meeting. The Notice need not specif3r the purpose of the meeting, nor the location if the meeting is to be held at the principal executive office of the Company. Except with respect to the matters listed in Section 5.4, any action required or permitted to be taken by the Manager and, if duly appointed by the Manager,the President and or Secretary under this Agreement may be taken without a meeting. The Manager and, if duly appointed by the Manager, the President and or Secretary shall keep or cause to be kept with the books and records of the Company full and accurate minutes of all meetings,notices and waivers of notices of meetings,and all written consents to actions of the Manager. 5.6. It is acknowledged that the Manager and the appointed officers may have other business interests to which the Manager devote part of the Manager' time. The Manager shall devote such time to the conduct of the business of the Company as the Manager, in each Manager's own good faith and discretion,deems necessary. 5.7. The Manager and, if duly appointed by the Manager, the President and or Secretary shall be entitled to compensation for the Manager's or the appointed officer's services as determined by the Member, and to reimbursement for all expenses reasonably incurred by each Manager in the performance of the Manager's duties. 5.8. Unless otherwise authorized by the Member,the Manager shall cause all assets of the Company,whether real or personal,to be held in the name of the Company. 5.9. All funds of the Company shall be deposited in one or more accounts with one or more recognized financial institutions in the name of the Company, at such locations as shall be determined by the Manager or, if duly appointed by the Manager,the President and or Secretary. Withdrawal from such accounts shall require only the signature of any one Manager or such other person or persons as the Manager may designate including, if duly appointed by the Manager,the President and or Secretary. 10 ARTICLE VI: ACCOUNTS AND ACCOUNTING 6.1. Complete books of account of the Company's business, in which each Company transaction shall be fully and accurately entered, shall be kept at the Company's principal execu- • tive office and at such other locations as the Manager and or.the appointed officers shall determine from time to time and shall be open to inspection and copying on reasonable Notice by the Member or the Member's authorized representatives during normal business hours. The costs of such inspection and copying shall be borne by the Member. 6.2. Unless otherwise required by the Code or other laws applicable to the Company by the country of domicile of the Member, financial books and records of the Company shall be kept on the cash method of accounting. The financial statements of the Company shall, to the extent reasonably possible, be prepared in accordance with United States generally accepted accounting principles, shall be appropriate and adequate for the Company's business and investing activities and for carrying out the provisions of this Agreement. The fiscal year of the Company shall be January 1 through December 31. 6.3. At all times during the term of existence of the Company, and beyond that term if the Manager deem it necessary, the Manager and or the appointed officers shall keep or cause to be kept the books of account referred to in Section 6.2,together with: (a) A current record of the full name and last known business or residence address of the Member,together with the Capital Contribution and the Member' share in Profits,Losses and distributions; (b) A current list of the full name and business or residence address of each Manager; (c) A copy of the Certificate of Formation,as amended; • (d) A copy of any Limited Liability Company Application for Registration of a • Foreign Limited Liability Company filed by the Manager and any amendments thereto with respect to any other jurisdiction to which the Company qualifies to do business in. (e) An original executed copy or counterparts of this Agreement as amended; (f) Any powers of attorney under which the Certificate of Formation or any amendments to said certificate were executed; (g) Financial statements of the Company for the six most recent fiscal years; and 11 (h) The books and Records of the Company as they relate to the Company's internal affairs for the current and past four fiscal years. If the Manager and or the appointed officers deem that any of the foregoing items shall be kept beyond the term of existence of the Company, the repository of said items shall be as designated by the Manager. 6:4. At the end of each fiscal year the books of the Company shall be closed and examined and statements reflecting the financial condition of the Company and its Profits or Losses shall be prepared, and a report thereon shall be issued by the Company's certified public accountants. Copies of the financial statements shall be given to the Member.The Manager and or the applicable appointed officer shall deliver to the Member,within 120 days after the-end of the fiscal year of the Company, a financial statement that shall include: (a) A balance sheet and income statement for the fiscal year; (b) A statement showing the Capital Account of each Member as of the close of the fiscal year and the distributions, if any,made to the Member during the fiscal year. The Member may request interim balance sheets and income statements, and may, at his own discretion and expense,obtain an audit of the Company books by certified public accountants selected by them; provided, however, that not more than one such audit shall be made • during any fiscal year of the Company. ARTICLE VII: MEMBERSHIP-MEETINGS, VOTING,INDEMNITY 7.1. There shall be only one class of membership. The Member shall have the right and power to appoint, remove, and replace the Manager(s) and other officers of the Company and the right to Vote on all other matters with respect to which this Agreement or the Act requires or permits such Member action. If a Member has assigned all or part of the Member's Economic Interest to a person who has not been admitted as a Member, the Assigning Member shall Vote for the Economic Interest so assigned. In addition to the actions set forth in Section 5.4,the following acts shall require the Vote of the Member; (a) The Transfer of a Membership Interest and the admission of the Assignee as a Member of the Company; (b) Any amendment of the Certificate of Formation or this Agreement; (c) The dissolution of the Company; and 12 (d) The admission of a second Member to the Company(other than as provided for in clause(a)above). 7.2. The Company may, but shall not be required, to issue a certificate or certificates evidencing the Membership Interest (Membership Interest Certificates) to the Member of the Company. Once Membership Interest Certificates have been issued, they shall continue to be issued as necessary to reflect current Membership Interests held by Member. Membership Interest Certificates shall be in such form as may be approved by the Manager(s), shall be manually signed by the Manager(s). All issuance's, reissuances, exchanges, and other transactions in Membership Interests involving the Member shall be recorded in a permanent ledger as part of the books and records of the Company. 7.3. A Member Meeting may be called at any time by the Manager(s) or by the Member for the purpose of addressing any matters on which the Member may Vote. If a meeting of the Member is called by the Member, Notice of the call of such meeting shall be delivered to the Manager(s)not less than 30 days prior to the scheduled date of the meeting. Meetings may be held at the principal executive office of the Company or at such other location as may be mutually agreed to by the Member and the Manager(s). The Notice by the Member to the Manager(s) shall state the place, dates and hour of the meeting and the general nature of the business to be transacted.No other business may be transacted at the meeting. 7.4. Either the Manager(s) or the Member or both may participate in a meeting through use of conference telephone or similar communications equipment provided that the Manager(s) and the Member can adequately communicate with each other through the medium so selected. Such participation shall be deemed attendance at the meeting. 7.5. Any action that may be taken at any meeting requested by either the Member or the Manager(s) may be taken without a meeting, if a consent in writing, setting forth the action so taken, is signed by the Member or the Manager(s) as the case may be. If the Member is requested to consent to a matter without a meeting the Member shall be given notice of the matter to be consented to. 7.6. The Member acting solely in his capacity as the Member is not an agent of the Company,nor can the Member acting solely in his capacity as the Member bind the Company or execute any instrument on behalf of the Company.Notwithstanding the foregoing,if the Member is the Manager(s)then any actions taken by the Member shall be deemed made in his capacity as a Manager. ARTICLE VIII: DISSOLUTION AND WINDING UP 8.1. The Company shall be dissolved upon the first to occur of the following events: 13 (a) The death,bankruptcy,retirement resignation,termination or dissolution of the Member. (b) The expiration of the term of existence of the Company. (c) The written agreement between the Member and the Company to dissolve the Company. (d) The sale or other disposition of substantially all of the Company's assets. (e) Entry of a decree of judicial dissolution under the Act 8.2. On the dissolution of the Company, the Company shall engage in no further business other than that necessary to wind up the business and affairs of the Company. The Manager(s) or, if there is no such Manager(s), the Member, shall wind up the affairs of the Company. The person in charge of winding up the Company shall be referred to as the Delegate. The Delegate winding up the affairs of the Company shall give Notice of the commencement of winding up by mail to all known creditors and claimants against the Company whose addresses appear in the records of the Company. After paying or adequately providing for the payment of all known debts of the Company(except debts owing to the Member),the remaining assets of the Company shall be distributed or applied in the following order: (a) To pay the expenses of liquidation. (b) To the establishment of reasonable reserves by the Delegate for contingent liabilities or obligations of the Company. Upon the Delegates determination that such reserves are no longer necessary,said reserves shall be distributed as provided in this Section 8.2. (c) To repay outstanding loans to the Member. (d) The balance, if any,to the Member. 8.3. The Member shall look solely to the assets of the Company for the return of the Member's investment, and if the Company property remaining after the payment or discharge of the debts and. liabilities of the Company is insufficient to return the investment of the Member, such Member shall have no recourse against the Company for indemnification, contribution, or reimbursement,except as specifically provided in this Agreement. 8.4 The Member shall have no right to receive a return of any of their contributions to the Company until the Company is terminated and its affairs wound up in accordance with this Article VIII and this Agreement 14 ARTICLE IX: INDEMNIFICATION 9.1. The Company shall have the power to indemnify any Person who was or is a party, or who is threatened to be made a party, to any Proceeding by reason of the fact that such Person was or is a Member, Manager, officer, employee, or other agent of the Company, or was or is serving at the request of the Company as a director, officer, employee, or other Agent of another limited liability company, corporation, partnership, joint venture, trust, or other enterprise, against expenses, judgments, fines, settlements, and other amounts actually and reasonably incurred by such Person in connection with such proceeding, if such Person acted in good faith and in a manner that such Person reasonably believed to be in the best interests of the Company, and, in the case of a criminal proceeding, such Person had no reasonable cause to believe that the Persons conduct was unlawful. The termination of any proceeding by judgment, order, settlement conviction, or upon a plea of nolo contendere or its equivalent, shall not, of it- self; create a presumption that the Person did not act in good faith and in a manner that such Person reasonably believed to be in the best interests of the Company, or that the Person had reasonable cause to believe that the Person's conduct was unlawful. To the extent that an agent of the Company has been successful on the merits in defense of any Proceeding, or in defense of any claim, issue, or matter in any such Proceeding,the agent shall be indemnified against expenses actually and reasonably incurred in connection with the Proceeding. In all other cases, indemnification shall be provided by the Company only if authorized in the specific case by the Member. "Agent," as used in this Section 9.1, shall include a trustee or other fiduciary of a plan, trust, or other entity or arrangement described in the applicable provisions of the Delaware state statutes. "Proceeding," as used in this Section 9.1, means any threatened, pending, or completed action or proceeding,whether civil, criminal, administrative,or investigative. • Expenses of each Person indemnified under this Agreement actually and reasonably in- curred in connection with the defense or settlement of a proceeding may be paid by the Com- pany in advance of the final disposition of such proceeding, as authorized by the Manager who is not seeking indemnification or, if there are none, by the Member, upon receipt of an undertaking by such Person to repay such amount unless it shall ultimately be determined that such Person is entitled to be indemnified by the Company. `Expenses," as used in this Section 9.1, includes, without limitation, attorney fees and expenses of establishing a right to indemnification, if any, under this Section 9.1. 15 ARTICLE X: ATTORNEY-IN-FACT AND AGENT 10.1. The Member,by execution of this Agreement irrevocably constitutes and appoints the Manager(s) acting alone as such Member's true and lawful attorney-in-fact and agent, with full power and authority in such Member's name, place, and stead to execute, acknowledge, and deliver, and to file or record in any appropriate public office: (a) any certificate or other instrument that may be necessary, desirable, or appropriate to qualify the Company as a limited liability company or to transact business or otherwise carry on its investment activities as such in any jurisdiction in which the Company conducts business or otherwise has investments; (b) any certificate or amendment to the Company's certificate of formation or to any certificate or other instrument that may be necessary,desirable, or appropriate to reflect an amendment approved by the Member in accordance with the provisions of this Agreement (c) any certificates or instruments that may be necessary, desirable, or appropriate to reflect the dissolution and winding up of the Company; and (d) any certificates necessary to comply with the provisions of this Agreement This power of attorney will be deemed to be coupled with an interest and will survive the Transfer of the Member's Economic Interest. Notwithstanding the existence of this power of attorney, the Member agrees to join in the execution, acknowledgment and delivery of the instruments referred to above if requested to do so by a Manager(s). This power of attorney is a limited power of attorney and does not authorize any Manager(s)to act on behalf of a Member except as described in this Article X. ARTICLE XI: GENERAL PROVISIONS 11.1. Entire Agreement-This Agreement constitutes the whole and entire agreement of the parties with respect to the subject matter of this Agreement and it shall not be modified or amended in any respect except by a written instrument executed by all the parties. This Agreement replaces and supersedes all prior written and oral agreements by and among the Member and Manager or any of them. 11.2. Counterparts - This Agreement may be executed in due or more counterparts, each of which shall be deemed an original,but all of which together shall constitute one and the • same instrument. 11.3. Choice of Law - This Agreement shall be construed and enforced in accordance with the internal laws of the State of Delaware. If any provision of this Agreement is determined by any court of competent jurisdiction or arbitrator to be invalid, illegal, or unenforceable to any extent that provision shall, if possible, be construed as though more narrowly drawn, if a narrower construction would avoid such invalidity, illegality, or unenforceability or, if that is not possible, such provision shall, to the extent of such invalidity, illegality, or unenforceability,be severed, and the remaining provisions of this Agreement shall remain in effect 16 11.4. Successor and Assigns - This Agreement shall be binding on and inure to the benefit of the parties and their heirs, personal representatives, and permitted successors and assigns. 11.5. Use of Terms - Whenever used in this Agreement, the singular shall include the plural and the plural shall include the singular, and the neuter gender shall include the male and female as well as a trust, firm, company, or corporation, all as the context and meaning of this Agreement may require. 11.6. Additional Documents- The parties to this Agreement shall promptly execute and deliver any and all additional documents, instruments,notices, and other assurances, and shall do any and all other acts and things, reasonably necessary in connection with the performance of their respective obligations under this Agreement and to carry out the intent of the parties. 11.7. Other Activities - Except as provided in this Agreement, no provision of this Agreement shall be construed to limit in any manner the Member in the carrying on of his own respective businesses or activities. 11.8. Capacity- The Member represents and warrants to the Company that the Member has the capacity and authority to enter into this Agreement. 11.9. Titles & Headings - The article, section, and paragraph titles and headings contained in this Agreement are inserted as matter of convenience and for ease of reference only and shall be disregarded for all other purposes, including the construction or enforcement of this Agreement or any of its provisions. 11.10. Amendment - This Agreement may be altered, amended, or repealed only by a writing signed by all of the Member. 11.11. Time of the Essence- Time is of the essence of every provision of this Agreement that specifies a time for performance. 11.12. Parties Benefited This Agreement is made solely for the benefit of the parties to this Agreement and their respective permitted successors and assigns, and no other person or entity shall have or acquire any right by virtue of this Agreement. 11.13 This Operating Agreement may be executed in multiple counterparts, each of which shall be deemed an original but all of which shall be deemed one instrument. 11.14 This Operating Agreement shall be effective with the facsimile signature of the Manager and the Member set forth below and shall be deemed as an original for all purposes. 17 IN WITNESS WHEREOF, the parties have executed or caused to be executed this Agreement on the day and year first above written. THE MEMBER: • ANDYPOLO, LP a Delaware limited partnership By Its General Partner ANDYPOLO : ', .,i By: V David J., ouston,Manager THE COMPANY: MOUNTAIN TUNE, LLC a Delaware limit ' ity company By: David /Houston,Manager THE MANAGER: Off David J. Hous en 18 MOUNTAIN TUNE,LLC Exhibit"A" • Name and Address Percentage Capital Contribution Andypolo, LP 100% $1,000.00 4203 Yoakum Boulevard Suite 200 Houston,Texas 77006 G:1Bosarge Family Office\Mountain Tune,LLC-DE Operating Agreemeat.doc 19 Appraiser Recommendation for an Abatement Assessor Generated 0 Taxpayer Generated 0 To: Tom Isaac, Pitkin County Assessor From: Cheryl Hasselbring Date: May 19, 2016 Petitioner: Mountain Tune LLC do Duff& Phelps LLC Schedule #: R04043 Parcel #: 2735-034-00-036 The appraiser has completed a review of the referenced property, as of this date, and hereby submits a recommendation as stated below: El Deny ❑ Approve as Submitted ❑ Abatement/Refund Different than requested Abatement for Year: 2014 Abatement for Year: 2015 Data collection period July 1, 2010 to Data collection period July 1, 2012 to for year#1: June 30, 2012 for year#2: June 30, 2014 Assessment Rate: 29% Assessment Rate: 29% Tax Area: 080-1-WBBW Tax Area: 080-1-WBBW Mill Levy: 41.974 Mill Levy: 42.32 Actual Value this year: 2,800,000 Actual Value this year: 2,300,000 New Value: No Change New Value: No Change Assessed Tax Amount Assessed Tax Amount Value Value Original value: $ 812,000 $ 34,082.88 Original value: $ 667,000 $ 28,227.44 Corrected $ No Change $ No Change Corrected $ No Change $ No Change value: value: Refund: $ No Change $ No Change Refund: $ No Change $ No Change The basis of this recommendation is: The agent for owners have filed a Petition for Abatement or Refund of Taxes as they state the vacant parcel owned by Mountain Tune, LLC is used in conjunction with the adjacent residential improved property owned by Mountain Song, LLC. They are requesting residential classification for the vacant unimproved parcel owned by Mountain Tune, LLC, which would change the Assessment Rate from vacant land (29 percent) to residential (7.96 percent), thereby reducing the taxes considerably. According to § 39-1-102 (14.4) (a), C.R.S. "Residential Land" means a parcel of contiguous parcels of land under common ownership upon which residential improvements are located and that is used as a unit in conjunction with the residential improvements located thereon. and According to the ARL (Assessor's Reference Library) Vol 2, there are four suggested criteria to be considered which include: 1. Are the contiguous parcels under common ownership? 2. Are the parcels considered an integral part of the residence and actually used as a common unit with the residence. 3. Would the parcel(s) in question likely be conveyed with the residence as a unit? 4. Is the primary purpose of the parcel and associated structures to be for the support, enjoyment, or other non-commercial activity of the occupant of the residence? The subject property does not meet the very first criteria, which is the parcels must be under common ownership. The parcel being abated is owned by Mountain Tune, LLC, a Delaware limited liability company and the adjacent parcel is owned by Mountain Song, LLC, a Delaware limited liability company. The agent for Owner states that both LLCs are owned by Andypolo, LP and are, therefore, owned under common ownership. It is the Pitkin County Assessor and the Pitkin County Attorney's opinion that since LLC's limit the personal liability of the owners by affording the owners no personal risk above and beyond their investment in the individual LLC, the LLC ownership, in turn, means there is no common ownership. Due to the lack of the primary criteria of common ownership, the Assessor's Recommendation is to DENY the Abatement. Copies of the vesting deeds showing ownership of the two parcels are attached. Chief Appraiser Approval: Assessor Approval: Pitkin County Assessor 506 East Main Street Suite 202•Aspen,CO•81611 N ----7)\-"- \ \ N. • \\\ t # . . . 4 LkOk. \ 4 yo-L4) ...." ..-t,' iii' �ou...,,\ov..., ilk 11\OU,AA Mi., ° .(C:> \\\ / I / c—' \ ll j're/ / .iii.U1 . J.1111h:•11E.—LF _ _ . . a. f 'r `:4-1'z'.. -:M s •, 44 Office Hours: 8:00-5:00 Mon-Thu Telephone Number: (970)920-5160 O l l- tt0 8:00-4:00 Fri Fax Number: (970)920-5174 V, CotTN T 9p ,. \\ i l� I r 4 B• - E,RMI Y \` ' 'TUU t, r • . _ k�y_{,ov,__ __j t .Er 4♦ , r .�f -, ,�t -{ -i+ 4' i,:'.110-A., .? r:r ',1,..,' .4: ,:t•. - 0004 . '�1}1 ' '1/4' .:!'4' ,.4 .Y ^ t Via:_i ,� ',,,i . �.. �. • !'�a: II " _ �` erg+. u, y •, _. y w i . , 40 15 2• Ir lk ;'x v Y . t. ,1r'a t3.�,o, vt 144 B.JiTERMIL L d 1:'r �_ '! ,', .F. `tie i +}'! IN- Y4, 4.0vT!: ,6+ • �_ 414k• eg.'r p• , ( •,. Y 1.4."1 .,'. •fi i., 11.,.;;, J ,� a j y6,.: F ` •}y'53.. Fes' a -1,0;4€-.- i. r , . . -,... 4 . it' , ♦g p , ,,yteR ge` • *i4*'4;4 • ,.b •- - BTERMRFP: . � ' i *y Y '♦ fir t, +meq .. g� rY+ ift ir � i 4 ti • y14 ,, r 4 /1w• > ' r.*. CSI "y " s x � ,y} • 1 ® 0` 100 2001 q -- ,1'!,• 44.;�,,i.�, F r. m.. RECEPTION#: 603365, 09/09/2013 at 09:05:21 AM, 1 OF 5, R $31 .00 DF $225.00 Janice K. Vos Caudill, Pitkin County, CO vG.0 k -c�ce\ When recorded return to: * L] Z 6 Christopher J.Heaphey,Esq. \ J Holland&Hart LLP 600 E.Main Street,Suite 104 . VI-alko�S Xiel\)�1 Ae �0 tShe4A lv\ 2t7`5 Aspen,CO 81611 KCAAA � • GS oC All SPECIAL WARRANTY DEED doc.fee $225.00 This SPECIAL WARRANTY DEED("Deed")evidences a conveyance by DILL SKI ASPEN IV LLC,a Colorado limited liability company("Grantor"),whose address is 5606 Vintage Oaks Terrace,Delray Beach,Florida 33484,to MOUNTAIN TUNE,LLC,a Delaware limited liability company("Grantee"),whose address is 4203 Yoakum Blvd., Suite 200, Houston,TX 77006,Attn: Eric S. Scheaffer,Esq. Grantor,for and in consideration of the sum of Ten and no/100ths Dollars($10.00)and other good and valuable consideration,the receipt and sufficiency of which is hereby acknowledged,has granted,bargained, sold and conveyed,and by these presents does grant, bargain,sell,convey and confirm unto Grantee,its successors and assigns forever,the land located in Pitkin County,Colorado which is described on Exhibit A attached to this Deed,and the buildings,fixtures and other improvements located on that land(together called the "Property");together with any and all water rights as well as all and singular the hereditaments and appurtenances thereto belonging,or in anywise appertaining, and the reversions,remainders, rents,issues and profits thereof,and all the estate,right,title,interest,claim and demand whatsoever of the Grantor,either in law or in equity,of,in and to the Property,with the hereditaments and appurtenances; TO HAVE AND TO HOLD the Property above bargained and described,with the appurtenances unto Grantee, its successors and assigns forever. Grantor, for itself,its successors and assigns,does covenant and agree that Grantor shall and will WARRANT AND FOREVER DEFEND the Property in the quiet and peaceable possession of Grantee,its successors and assigns,against all and every person or persons claiming or to claim the whole or any part thereof by,through,or under Grantor,except for the lien for 2013 property taxes due and payable in 2014 and the matters shown on Exhibit B attached to this Deed. ["Permitted Exceptions"] Dated: August 29,2013. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK] ® f{� 3319 �`� RECEPTION#: 603365, 09/09/2013 at 09:05:21 AM, 2 OF 5, Janice K. Vos Caudill, Pitkin County, CO Signature Page to Special Warranty Deed Between DILL SKI ASPEN IV LLC as Grantor and MOUNTAIN TUNE,LLC, as Grantee GRANTOR: DILL SKI ASPEN IV LLC,a Colorado limited liability company By: 1^)1"It Gary W. Krat Its: Manager STATE OF CO l.--01--Pc ) ) ss. COUNTY OF PIT�IN ) The foregoing instrument was acknowledged before me this 2 ' day of August 2013, by Gary W. Krat as Manager of Dill Ski Aspen IV LLC, a Colorado limited liability company. Witness my hand and official seal. My commission expires: cP /IV IA t L . SASHA LYN SEMPLE I *-91416"-tV 9S-1-*:QD NOTARY PUBLIC Notary Public STATE OF COLORADO NOTARY ID#19964011120 My Commission Expires July 18,2016 2 RECEPTION#: 603365, 09/09/2013 at 09:05:21 AM, 3 OF 5, Janice K. Vos Caudill, Pitkin County, CO EXI-IIBIT A to Special Warranty Deed ("Property") Parcel A: A tract of land being in Lot 13,Section 3,Township 10 South,Range 85 West of the Sixth Principal Meridian described as follows: Beginning at a point from which the South Quarter Corner,Section 3,Township 10 South, Range 85 West of the Sixth Principal Meridian bears South 47°45' West 999,23 feet; thence North 01°39'West 150.39 feet to the Southwesterly edge of a right of way; thence South 52°21' East/14.33 feet along the southwesterly edge of the right of way; thence South 30°47'East 12.8.87 feet along the edge of the right of way; thence South 37°37'East 54.75 feet along the edge of the right of way; thence South 24°09'East 156.62 feet along the edge of the right of way; thence South 51°41'East 116.34 feet along the edge of the right of way; thence South 22°05' East 66.41 feet more or less to the South line of Lot 13; thence South 89°41' West 355.73 feet,more or less,along the South line of Lot 13 to a point which is South 01°39'East of the point of beginning; thence North 01°39'West 352.29 feet,more or less, to the Point of Beginning. Parcel B: A tract of land being in Lot 13,Section 13,Township 10 South,Range 85 West of the Sixth Principal Meridian described as follows: Beginning at a Point from which the South Quarter Corner,Section 3,Township 10 South, Range 85 West of the Sixth Principal Meridian bears South 47°45'West 999.23 feet: thence South 88°34'West 311.96 feet to the Easterly edge of a right of way; thence South 15°06' East 210.45 feet along the edge of the right of way; thence South 05°27' West 143.36 feet more or less along the edge of the right of way to the South line of Lot 13; thence North 89°41' East 280.78 feet along the Southerly line of said Lot 13; thence North 01°39' West 352.29 feet more or less to the Point of Beginning, Together with a non-exclusive right of ingress and egress along the aforesaid right of way and along the Buttermilk West Road to State Highway No. 82. Together with a non-exclusive,perpetual easements as described by Easement Agreement recorded May 21,2001 as Reception No.454606. Together with a perpetual,non-exclusive easement and right-of-way over,across,and along that certain Driveway Easement Area as set forth in Driveway Fasement Agreement recorded August 16,2006 as Reception No. 527547. County of Pitkin,State of Colorado. A-1 RECEPTION#: 603365, 09/09/2013 at 09:05:21 AM, 4 OF 5, Janice K. Vos Caudill, Pitkin County, CO EXHIBIT B to Special Warranty Deed ("Permitted Exceptions") Exhibit A Exceptions: I. Any facts,rights,interests or claims that are not shown by the Public Records but which could be ascertained by an inspection of the Land or that may be asserted by persons in possession of the I,and. 2. Easements,liens or encumbrances,or claims thereof,not shown by the Public Records. 3. Any encroachments,encumbrances,violation,variation,or adverse circumstance affecting the Title that would be disclosed by an accurate and complete land survey of the Land and not shown by 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 the value the estate or interest or mortgage thereon covered by this Commitment. 6. (a)Unpatented mining claims;(h)reservations or exceptions in patents or in Acts authorizing the issuance thereof,(c)water rights,claims of title to water,whether or not the matters excepted under(a),(b),or(c)are shown by the Public Records. 7. (a)Taxes or assessments that are not shown as existing liens by the records of any taxing authority that levies taxes or assessments on real property or by the Public Records;(b) proceedings by a public agency that may result in taxes or assessments,or notices of such proceedings,whether or not shown by the records of such agency or by the Public Records. 8. Any assessments or liens based upon assessments imposed by any recorded declaration of covenants, conditions or restrictions or imposed by law for the benefit of a homeowners association or a common interest ownership association. 9. All taxes and assessments,now or heretofore assessed,due or payable. 10. Any defect,invalidity,or the avoidance of the transfer of the title to the insured property arising out of or occasioned by a violation of the federal banlcruptcy laws or similar state insolvency or debtor/creditors'rights laws. 1 I. Reservations contained in the Patent From: The United States of America Recording Date: April 25,1944 Recording No: Book 167 at Page 557 Which among other things recites as follows: A right of way thereon for ditches or canals constructed by the authority of the United States of America. 12. Terms,conditions,provisions,agreements and obligations contained in the Deed as set forth below: Recording Date: September 17,1970 Recording No.: Book 250 at Page 739 13. Terms,conditions,provisions,agreements and obligations contained in the Agreement to Remove Restrictive Covenants by and between Daryl Anderson,Peter R.Serrao Family Partnership,Ltd., a Texas limited liability partnership and Arnold S.Horowich and Judith E.Horowich as set forth below: Recording Date: July 13,1999 Recording No.: Reception No.433352 Wdo,p ESCROW NO.,Sl.aassrii,91r9.�O45a-PRR9 1 1 1 D B-1 RECEPTION#: 603365, 09/09/2013 at 09:05:21 AM, 5 OF 5, Janice K. Vos Caudill, Pitkin County, CO 14. Terms, conditions, provisions, agreements, obligations and easements as contained in the Easement Agreement by and between Tiehack Land Partners, Ltd., a Colorado limited partnership and Daryl A.Anderson as set forth below: Recording Date: May 21,2001 Recording No.: Reception No.454606 15. Terms,conditions,provisions,agreements,obligations and easements contained in the Driveway Easement Agreement by and between Gordon Gerson and Elaine Gerson and Daryl A.Anderson as set forth below: Recording Date: August 16,2006 Recording No.: Reception No.527547 16. Terms, conditions, provisions, agreements and obligations contained in the Administrative Decision of the Community Development Director of Pitkin County, Colorado, approving the Anderson 1041 Hazard Review,Decision No.09-2007 as set forth below: Recording Date: February 28,2007 Recording No.: Reception No.534909 and re-recorded March 13,2007 at Reception No. 535368. 17. Terms,conditions, restrictions, provisions, notes and easements but omitting any covenants or restrictions,if any,including but not limited to those based upon race,color,religion,sex,sexual orientation,familial status,marital status,disability,handicap,national origin,ancestry,or source of income,as set forth in applicable state or federal laws,except to the extent that said covenant or restriction is permitted by applicable law,as set forth on the 80 Buttermilk Road 1041 Hazard Review Site Plan set forth below: Recording Date: June 27,2007 Recording No: Book 84 at Page 46 18. Terms,conditions,provisions,agreements and obligations contained in the Easement Agreement as set forth below: Recording Date: December 7,2007 Recording No.: Reception No.544723 19. Terms, conditions, provisions, agreements and obligations contained in the Administrative Decision No. 121-2007 as set forth below: Recording Date: January 9,2008 Recording No.: Reception No.545688 RECEPTION#: 557770, 04/03/2009 at 03:42:27 PM, 1 OF 3, R $16.00 DF $1200.00 Janice K. Vos Caudill, Pitkin County, CO I); (-A'\ : C"'\ tUr ca b14-.3 lc1-1 Z cb SPECIAL WARRANTY DEED THIS DEED,made this 2nd day of April,2009,between Alpine Bank In tof the said County of Pitkin and State of Colorado,Grantor,and Pt Mountain Song,LLC,a Delaware limited liability company NI– whose legal address is: 4203 Yoakum Blvd.,Suite 200 Doc Fee$ 1,200.00 Houston,TX 77006 of the said County of and State of Texas,grantee, WITNESS,that the grantor,for and in consideration of the sum of ( $12,000,000.00 ) Twelve Million dollars and Zero cents, the receipt and sufficiency of which is hereby acknowledged,has granted, bargained, sold and conveyed, and by these presents does grant,bargain, sell, convey and confirm,unto the grantees,their heirs and assigns forever, not in tenancy in common but in joint tenancy,all the real property, together with improvements, if any, situate, lying and being in the County of Pitkin and State of Colorado described as follows: FEE: Lot 2 BUTTERMILK MEADOWS P.U.D/SUBDIVISION According to the plat thereof recorded October 10,2005 in Plat Book 75 at Page 99 as Reception No.516024 EASEMENT: Together with access from Colorado State Highway No.82 to Owl Creek Road Right of Way to Access Road Rights of Way to Common Area Parcel 1 all as shown on the Plat recorded October 10, 2005 in Plat Book 75 at Page 99 as Reception No.516024 COUNTY OF PITKIN,STATE OF COLORADO also known by street and number as: 220 Buttermilk Lane,Aspen,CO 81611 TOGETHER with all and singular the hereditaments and appurtenances thereto belonging,or in anywise appertaining, and the reversion and reversions,remainder and remainders,rents,issues and profits thereof,and all the estate,right,title, interest,claim and demand whatsoever of the grantor,either in law or equity,of,in and to the above bargained premises, with the hereditaments and appurtenances. TO HAVE AND TO HOLD the said premises above bargained and described,with the appurtenances,unto the grantee, his heirs and assigns forever except, Those matters set forth in Exhibit 1 attached hereto and made a part hereof. The grantor, for himself,his heirs, and personal representatives or successors,do covenant,and agree that he shall and will WARRANT AND FOREVER DEFEND the above-bargained premises in the quiet and peaceable possession of the grantee,his heirs and assigns, against all and every person or persons claiming the whole or any part thereof, by,and through or under the grantor. The singular number shall include the plural,the plural the singular,and the use of any gender shall be applicable to all genders. Alpin kCOA/\-< ,-, / cocc tqp,teA,r By: STATE OF Colorado ) ss. COUNTY OF Pitkin ) The foregoing instrumentnwas acknowledged before me this .3� day of April,2009,by _ .,, SM To lI t?Tson as Senior {rice, Pres f for Alpine Bank. -.4 PU8.0 `� ••C `I My commission expires: . y hand and.,j7� .I. Z: MOR OV5 �� // IIAARCIA POUTOUS �� r it •:• P My Commission expires •. • Nov.5,200q Notary Public '‘�'17E Of _r Stcwan I tic olColorado,Inc. File Number: 902055a Warranty Deed Special Page I of I RECEPTION#: 557770, 04/03/2009 at 03:42:27 PM, 2 OF 3, Janice K. Vos Caudill, Pitkin County, CO EXHIBIT 1 EXCEPTIONS 1. Any and all unpaid taxes and assessments and unredeemed tax sales. 2. The effect of inclusions in any general or specific water conservancy, fire protection, soil conservation or other district or inclusion in any water service or street improvement area. 3. Right of way for ditches or canals constructed by the authority of the United States, as reserved in United States Patent recorded April 22, 1944 in Book 167 at Page 557. 4. Easement and right of way for Road as set forth in Right of User recorded August 6, 1964 in Book 208 at Page 411. 5. Easement granted to Rocky Mountain Natural Gas Company recorded October 19, 1961 in Book 195 at page 428 and in Book 222 at Page 321. 6. Easement and right of way for Road as set forth in Deed of Easement recorded December 22, 1964 in Book 224 at Page 451, Correction recorded February 16, 1970 in Book 246 at Page 842,and Ratification recorded March 10, 1970 in Book 247 at Page 255 and in Book 272 at Page 401. 7. Lease recorded December 7, 1972 in Book 269 at Page 578 Amendment recorded December 7, 1972 in Book 269 at Page 593, Amendment recorded December 7, 1972 in Book 269 at Page 599 and Amendment recorded November 15, 1977 in Book 338 at Page 684. 8. Easement and right of way for Utility Purposes as set forth in Easement Agreement recorded January 3, 1974 in Book 283 at Page 37. 9. Resolution of the Board of County Commissioners of Pitkin County, Colorado, Approving the Buttermilk Meadows Subdivision/PUD Conceptual Submission, 1041 Hazard Review, Special Review for a TDR Receiver Site and Caretaker Dwelling Units, Resolution No. 98- 153 recorded September 28, 1998 as Reception No.422490. 10. Resolution of the Board of County Commissioners of Pitkin County, Colorado,Granting an Extension of the Conceptual Submission Approval for the Buttermilk Meadows Subdivision, Resolution No.99-146 as set forth in instrument recorded September 22, 1999 as Reception No.435780. 11. Stipulation and Agreement, District Court,Garfield County, Colorado,Case No. 99CW273 recorded March 22,2001 as Reception No.452638. 12. Easement Agreement by and between Tieback Land Partners, Ltd., a Colorado limited partnership and Daryl A.Anderson recorded May 21,2001 as Reception No.454606. 13. Resolution of the Board of County Commissioners of Pitkin County,Colorado, Approving and Extension of Vested Real Estate Property Rights for Buttermilk Meadows LLC and Buttermilk Meadows Subdivision/PUD, Resolution No. 008-2204 recorded February 13, 2004 as Reception No.494501. 14. Easement Agreement by and between Buttermilk Meadows, LLC, a Colorado limited liability company and Cahn & Company, LLC, a Colorado limited liability company recorded April 19,2005 as Reception No.509144. File Number: 902055a Stewart Title of Colorado,Inc. Warranty Deed—Exhibit A(Exceptions) Page I of 2 RECEPTION#: 557770, 04/03/2009 at 03:42:27 PM, 3 OF 3, Janice K. Vos Caudill, Pitkin County, CO 15. Easement Agreement by and between Buttermilk Meadows, LLC, a Colorado limited liability company and Cahn & Company, LLC, a Colorado limited liability company and Gordon Gerson and Elaine Gerson recorded April 19,2005 as Reception No.509145. 16. Easements, rights of way and other matters as shown and contained on Plat of Buttermilk Meadows P.U.D./Subdivision recorded October 10,2005 in Plat Book 75 at Page 516024. 17. Grant of Easement Agreement by and between Buttermilk Meadows, LLC, a Colorado limited liability company,Cahn&Company,LLC,a Colorado limited liability company and Pitkin County,Colorado recorded October 10,2005 as Reception No.516025. 18. Declaration of Protective Covenants for Buttermilk Meadows Subdivision recorded October 10,2005 as Reception No.516026. 19. Buttermilk Meadows Subdivision Planned Unit Development Guide as set forth in instrument recorded October 10, 2005 as Reception No. 516027, and First Amendment to the Buttermilk Meadows Subdivision Planned Unit Development Guide recorded March 22, 2005 as Reception No.522028. 20. Determination of Hearing Officer of the Community Development Department of Pitkin County, Colorado, Approving the First Time Buttermilk LLC Scenic Overlay Review for Lot 2,Buttermilk Meadows Subdivision/PUD,Determination No.01-2006 recorded January 26,2006 as Reception No.520251. 21. Resolution of the Board of County Commissioners of Pitkin County, Colorado, Approving an Amendment to the Buttermilk Meadows Lot 2 Subdivision/PUD for First Time Buttermilk LLC, Resolution No. 020-2006, recorded March 22, 2006 as Reception No. 522027. 22. Underground Right-of-Way Easement granted unto Holy Cross Energy, a Colorado corporation recorded October 11,2006 as Reception No.529671. 23. Trench, Conduit, and Vault Agreement by and between Buttermilk Landowner, LLC, a Colorado limited liability company and Holy Cross Energy, a Colorado corporation in t recorded October 11,2006 as Reception No.529672. 24. Resolution No. 159-2000 recorded August 14,2000 as Reception No.446051. 25. Order of Inclusion in the Basalt Water Conservancy District recorded November 24,2000 as Reception No.449116. 26. Resolution 232-2000 recorded December 14,2000 as Reception No.449683. 27. Easement Agreement to Pitkin County Colorado recorded October 10, 2005 as Reception No.516025 and rerecorded November 8,2005 as Reception No.517211. 28. Easement Agreement recorded December 7,2007 as Reception No.544723. 29. Any rights,easements,interests or claims which may exist by reason of or reflected by the following facts shown on the Improvement Survey Plat by High Country Engineering dated 3/25/09 No.2091611.00: fence sitting off the property line along the southerly boundary and fence sitting off the property line along the westerly boundary. File Number:902055a Stewart Title of Colorado,Inc. Warranty Deed-Exhibit A(Exceptions) Page 2 of 2