Exhibit B Sample AgreementSAMPLE
IdM.�.IIC�MI�C�
CONSTRUCTION OPERATION AND
RECIPROCAL EASEMENT AGREEMENT
THIS CONSTRUCTION OPERATION AND RECIPROCAL EASEMENT
AGREEMENT (this "CORER") is executed as of the day of , 2007, by
and between WOLFORD DEVELOPMENT MONTANA, LLC, a Montana limited liability
company ("Developer"), I ("[Company A] ") and
("Wompany B1").
T)171--lTT A T C.
A. Developer is developing a mixed use development in Kalispell, Flathead County,
Montana.
B. Developer owns the Developer Tract (as defined in Section 1.1 below).
C. [Company A] owns the [Company A] Tract (as defined in Section 1.1 below).
D. [Company B] owns the [Company B] Tract (as defined in Section 1.1 below).
E. The [Company A] Tract, the [Company B] Tract and the Developer Tract
constitute part of a lifestyle center to be known as "Glacier Mall" with such [Company A] Tract,
[Company B] Tract and Developer Tract being depicted on Exhibit A attached hereto and made a
part hereof (the "Plot Plan"). (The [Company A] Tract, the [Company B] Tract and the
Developer Tract are sometimes collectively referred to herein as the "Lifestyle Shopping
Center" in this CORER.)
F. In order to operate the Lifestyle Shopping Center as a first class open air regional
shopping center, Developer wishes to impose certain easements, covenants, conditions and
restrictions upon and with respect to the Lifestyle Shopping Center, for the mutual and reciprocal
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benefit and complement of the each of the Tracts comprising the Lifestyle Shopping Center, and
the present and future Parties owning each Tract or portions thereof, on the terms and conditions
hereafter set forth.
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
contained herein, the Parties agree as follows:
ARTICLE I
THE SHOPPING CENTER
1.1 The Lifestyle Shopping Center. The Lifestyle Shopping Center shall consist of
the Tracts and the buildings and improvements from time to time situated upon the Tracts (the
"Lifestyle Shopping Center" and the "Tracts" as such terms are used in this document do not
include the Out Parcels (as identified on Exhibit A and further described on Exhibit B (the "Out
Parcels")) and the property identified as Adjacent Land on Exhibit A as further described on
Exhibit C (the "Adjacent Land"). Legal descriptions of the Tracts and the Lifestyle Shopping
Center are attached hereto as follows:
[Company A] Tract
- Exhibit
"D"
[Company B] Tract
- Exhibit
"E"
Developer Tract
- Exhibit
"F"
Lifestyle Shopping Center
- Exhibit
"F1"
1.2 Buildings. The buildings which are contemplated being built on the Tracts are:
[Company A] Tract A one -level retail store building ("[Company Al Building")
containing approximately square feet of GLA, which
may be expanded by the addition of not more than
square feet of GLA, to be constructed by [Company A] within the
areas identified as permissible building areas on the Plot Plan (the
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"Permissible Building Areas").
[Company B] Tract A one -level retail store building ("[Company B1 Building")
containing approximately I square feet of GLA to be
constructed by [Company B] within the Permissible Building Areas.
Developer Tract One story buildings to be constructed by Developer within the
Permissible Building Areas.
1.3 Restrictions and Limitations. All buildings on the Tracts must be built within the
Permissible Building Areas, shall be a maximum of one (1) story in height, and any Expansion of
such buildings must be within the Permissible Building Areas. Except as expressly permitted in
this CORER, no expansion of any portion of the Lifestyle Shopping Center is permitted. No
building on the Tracts shall exceed forty (40) feet in height, including any parapets; provided,
however, a maximum height of sixty (60) feet shall be permitted where a wall peaks over the
entrances to such building or towers or facades which are located on corners of buildings.
Reasonable efforts shall be made to screen any antenna or satellite dishes installed on the roof of
any building from view so as not to be visible from the perimeter drive of the Lifestyle Shopping
Center. All handicapped parking spaces shall meet and comply with all applicable rules and
guidelines. Each Party owning each of the [Company A] Tract, the [Company B] Tract and the
Developer Tract shall maintain on its Tract no less than four (4) automobile parking spaces for
each one thousand (1,000) square feet of GLA in all of the buildings constructed on such Tract.
1.4 Ste. All signs shall comply with the Sign Criteria (as defined in ARTICLE VII
— Definitions) set forth on Exhibit "G" attached hereto and made a part hereof.
1.5 Development of Out Parcels. The development of land in the immediate vicinity
of the Lifestyle Shopping Center will have a direct bearing on the success of the Lifestyle
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Shopping Center. Developer or an affiliate of Developer has acquired the Out Parcels
contiguous to the Lifestyle Shopping Center and designated as Out Parcels on the Plot Plan.
(The Out Parcels do not include the Adjacent Land.) Developer or its affiliate has executed
Easements and Restrictions Agreements (the "Restrictions Agreement") pertaining to the Out
Parcels, which is being recorded concurrently herewith.
ARTICLE II
COMMON AREA
2.1 Common Area. The Common Area ("Common Area") shall consist of the open
areas (excluding open areas in any building), all parking areas, parking decks, if any, all drives,
all driveways, all sidewalks (including, but not limited to, sidewalks abutting and/or surrounding
the Buildings ("Perimeter Sidewalks"), all retention/detention areas, all planted or landscaped
areas (including, but not limited to, landscaped areas located between buildings and Perimeter
Sidewalks) and all other common facilities, all as located on the Tracts and, notwithstanding
anything to the contrary herein, for purposes of Common Area cost allocations, the maintenance,
repair and replacement costs for such drainage facilities shall be included in Common Area
costs. The Common Area shall also include drainage facilities providing storm drainage from
the Tracts. The Common Area shall not include any truck unloading area or truck parking area
adjacent to and for the benefit of any building now existing or hereafter constructed. The
Common Area shall also not include any drives or driveways or sewer lines or other utility lines
from and after the date on which they are dedicated as public streets or public utility lines and
which are the responsibility of any governmental authority to repair and/or maintain and which
are repaired and maintained by such governmental authority. Any part of the Common Area
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within the Permissible Building Areas shall cease to be a part of the Common Area when
incorporated into any building.
2.2 Operation of Common Area.
(a) During any period when any Department Store (as defined in ARTICLE VII --
Definitions) is open for business or when occupants of 75°Io or more of the GLA of the Lifestyle
Shops (as defined in ARTICLE VII -- Definitions) are open for business and for one (1) hour
before and after such business hours, all Common Area on the Developer Tract shall be open and
operating.
(b) The owner of each Tract will keep or cause to be kept all exterior Common Area
on its respective Tract well lighted in accordance with the minimum requirements hereinafter
specified from dusk until 10:00 p.m., each evening that any Department Store is open for
business or when 75% or more of the GLA of the Lifestyle Shops are open for business. In
addition, any Anchor Store which is open for business after dusk shall keep all exterior Common
Area on its respective Tract well lighted in accordance with the minimum requirements
hereinafter specified during such hours after dusk and before sunrise during which such store is
open. The minimum requirements for exterior Common Area and parking area lighting shall be
one and one-half (1.5) foot candles average minimum maintained at ground level. For purposes
of security, the owner of each Tract shall cause the exterior Common Area on its respective Tract
to be lighted during night hours of non -business operations at twenty-five percent (25%) of the
aforesaid minimum requirement for parking area lighting, uniformly distributed. The cost of
lighting the exterior Common Area of each Tract, i.e., the electric power consumed for such
purpose, shall be borne by the owner of such Tract unless otherwise provided in such Party's
separate agreement with Developer. If the owner of any Tract desires to operate after 10:00
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p.m., the owners of the other Tracts shall light their respective exterior Common Area during
such extra hours at the written request and at the expense of the requesting owner.
2.3 Employee Parking Area. Developer and [Company A] and [Company B] hereby
designate the sections of the parking areas shown on the Plot Plan for the use of employees of the
establishments situated on the Tracts. Developer will include in each lease or Restrictions
Agreement hereafter executed under which space in the Developer Tract is rented to or occupied
by an operator of a store or other establishment, a requirement that such operator exert
reasonable efforts to cause its employees to use only the area so designated for parking purposes.
The owner of each Tract shall exert reasonable efforts to cause their respective employees to use
only parking areas designated for such purposes.
2.4 Sales in Common Area.
(a) No vending machines, push carts, kiosks (except as hereinafter permitted) or
similar selling or service displays or devices ("Kiosk") and no selling or solicitation of any kind
(including charges for admission, rides or entertainment) shall be conducted or permitted in any
of the exterior Common Area of any Tract, and no person, firm or corporation shall install such
Kiosks or conduct or permit any such selling, or conduct or permit any solicitation of any kind in
any of the exterior Common Area of any Tract, unless each Party owning Tracts shall consent
prior thereto in writing; provided, however, Developer reserves the right to install Kiosks and
pushcarts and/or "seasonal" Kiosks at any location on the Developer Tract. "Seasonal" Kiosks (i)
shall be of a seasonal nature only (i.e., employed not more often than three (3) times per year, for
a duration not exceeding forty-five (45) days per "season" or "holiday" period), (ii) shall be
constructed and maintained in a tasteful and decorous manner, and (iii) shall comply in all other
respects with the other restrictions imposed upon Kiosks as hereinabove set forth.
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Notwithstanding any provision in this COREA to the contrary, without the consent of the other
Parties, Developer may only locate seasonal kiosks in the areas identified as "Seasonal Kiosk
Areas" on the Plot Plan.
(b) Neither Developer nor any owner of any Tract shall permit sales to be made in or
conducted from, nor any merchandise to be stored upon, any exterior Common Area, provided,
however that sidewalk sales by tenants or occupants of the Developer Tract on sidewalks directly
in front of the premises leased or occupied by such tenant or occupant shall be permitted but only
if such sale is approved in writing by Developer.
Tract.
(c) Developer reserves the right to permit outdoor restaurant seating on the Developer
2.5 Common Area Maintenance. Developer shall, subject to the provisions of
Section 2.7 herein, keep all Common Area on the Developer Tract and, except as provided in
Developer's separate agreements with any owner of a Tract, on all other Tracts, in a first-class
state of repair and shall continuously perform maintenance to ensure such state of repair.
Developer's obligations hereunder shall include, but not be limited to providing adequate
security, repairing all above and underground utility conduits and lines and sewers located on or
under its areas of responsibility for Common Area maintenance (except within those utility
easements granted to any governmental authority or utility company, which has maintenance and
repair obligations thereover), repairing and replacing all lighting facilities on its areas of
responsibility, and maintaining and replacing as necessary the plants located within the
landscaped and planted areas on its areas of responsibility. All parking within Developer's areas
of responsibility shall be restriped as determined by Developer. All holes or breaks in the paving
within Developer's areas of responsibility shall be repaired as determined by Developer within a
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reasonable time after the same appear. Notwithstanding the foregoing, Developer's obligation
for repair and maintenance of the parking areas on each Tract only extends to repairing, patching
and striping same and does not include resurfacing of the parking areas. Developer shall not,
except in the event of an emergency, make repairs to the parking areas in the period from
November 1 to December 31. Should it become necessary or advisable, in the judgment and
discretion of a majority of the owners of the Tracts (with the owner of any Tract receiving one
(1) vote for each Tract even if multiple Tracts are owned by the same entity), including
Developer, to resurface the parking area in the Lifestyle Shopping Center, the cost thereof will
be borne by the Owner of each Tract in the proportion of the area of such Tract bears to the area
of the Lifestyle Shopping Center, unless otherwise provided in such owner's separate agreement
with Developer.
2.6 Common Area Cleaning. Developer shall at all times keep all Common Area on
the Developer Tract and, except as herein provided, on all other Tracts, in a clean, neat and
sanitary condition consistent with the operation of a first class regional open air shopping center
and shall to the extent practicable keep all such areas exposed to the elements free from ice and
snow. Without limiting the generality of the foregoing, Developer must:
(i) Empty all trash containers in the Common Area as needed;
(ii) Pick up paper and trash in all Common Area each day as needed
and sweep all sidewalks and drives adjacent to all buildings as needed. Sweep
entire parking area as needed;
(iii) Remove and treat ice and remove snow from exposed areas as
soon as practicable; and
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(iv) Cause all garbage receptacles of all occupants of Lifestyle Shops to
be emptied, and the garbage removed as needed.
If Developer shall fail to comply with any one of the requirements of Section 2.5 or this
Section 2.6, and such failure shall not be cured within ninety (90) days following written notice
by a Party of such condition, or if such condition re -occurs within ninety (90) days of such cure
or attempted cure by Developer, then any Party may, at its option, withdraw its Tract from
Developer's exterior Common Area maintenance and cleaning and cease making the payment for
such maintenance and cleaning required by this COREA or by such Party' s separate agreement
with Developer and, if so elected, such Party shall perform the exterior Common Area
maintenance and cleaning on its Tract at its expense and in accordance with the requirements of
this COREA and its respective separate agreement with Developer. In the alternative, any Party
owning a Tract may exercise the right of self-help under Section 5.2 as to the exterior Common
Area on its respective Tract, and the reasonable actual costs incurred by such Party may be
deducted from the payment required by such Party' s separate agreement with Developer.
2.7 Operation and Maintenance of Common Area by Owners. In the event any Party
owning a Tract assumes control of the maintenance of the exterior Common Area on its Tract,
such Party shall operate, maintain and repair the exterior Common Area on its Tract in
accordance with the requirements imposed under this CORER. In the event none of the Lifestyle
Shopping Center is being operated, then no Party shall be obligated to operate, maintain or repair
its Tract, except to the extent required by applicable law.
2.8 Parkin Area. The parking areas, sidewalks, aisles, streets and driveways on the
Tracts shall not be fenced or otherwise obstructed (except at a mutually acceptable time and as is
necessary to prevent the public from obtaining rights by prescriptive use), shall be kept open at
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all times for the free use thereof by the persons or entities entitled thereto pursuant to this
COREA, and shall not be used for the display or sale of merchandise or services or for any
purpose not contemplated by this COREA. All parking areas (as such areas exist from time to
time) shall be used for parking purposes only and for no other purpose or use whatsoever.
2.9 Maintenance of Buildings. Each Party owning a Tract shall maintain and repair
the exterior of the buildings on its respective Tract in good order, condition and state of repair in
accordance with the standards of first quality regional shopping center operations.
2.10 Reimbursement. All costs described in this ARTICLE II for the maintenance,
operation, repair and cleaning of all or any portion of the Common Area by Developer shall be
reimbursed by the owner of the [Company A] Tract and the [Company B] Tract as provided in
such Party' s separate agreement with Developer.
ARTICLE III
DESTRUCTION
3.1 Damage to [Company A] Tract. During the period of the operating covenants of
[Company A] set forth in [Company A]'s separate agreement with Developer, in the event the
building on the [Company A] Tract shall be damaged or partially or totally destroyed by fire or
other casualty insurable under a standard "All Risk" casualty policy, [Company A] shall, if
Developer is not then in default under Developer's operating covenants in Developer's separate
agreement with [Company A] (but excluding any failure to operate as the result of such fire or
other casualty unless Developer was in default immediately prior to such fire or other casualty)
and Developer is proceeding to repair, restore and replace any damaged or destroyed buildings
on the Developer Tract, promptly and diligently (but not prior to adjustment of loss by the
insurer) proceed, without expense to Developer, to repair, restore and replace the damage or
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destruction to its building to a size of at least eighty-five percent (85%) but not more than one
hundred percent (100%) (subject to [Company A]'s rights to expand hereunder), of the GLA
which existed prior to such damage or destruction to the extent of insurance proceeds received
and any "deductible" under its insurance policy; provided however, [Company A] shall have the
right to self -insure pursuant to ARTICLE N. However, if within three (3) years prior to the end
of the period during which [Company A] covenanted to operate, any such [Company A]
Building is destroyed or damaged to the extent of thirty-three and one-third percent (33-1/3%) or
more of the replacement cost of the entire building, [Company A] shall not be obligated to repair
or restore its building or to thereafter operate. After expiration or other termination of the period
during which [Company A] has covenanted to operate, [Company A] shall have no obligation to
repair or restore its building irrespective of the extent of the damage thereto.
3.1 A Damage to [Company B] Tract. During the period of the operating covenant of
[Company B] set forth in [Company B]'s separate agreement with Developer in the event the
building on the [Company B] Tract shall be damaged or partially or totally destroyed by fire or
other casualty insurable under a standard "All Risk" casualty policy, [Company B] shall, if
Developer is not then in default under Developer's operating covenant in Developer's separate
agreement with [Company B] (but excluding any failure to operate as the result of such fire or
casualty unless Developer was in default immediately prior to such fire or other casualty) and
Developer is proceeding to repair, restore and replace any damage or destroyed buildings on the
Developer Tract, (promptly and diligently, but not prior to adjustment of loss by the insurer),
proceed, without expense to Developer, to repair, restore and replace the damage or destruction
to its building to a size of at least eighty-five percent (85%) but not more than one hundred
percent (100%) of the GLA which existed prior to such damage or destruction to the extent of
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insurance proceeds received and any "deductible" under its insurance policy; provided, however,
[Company B] shall have the right to self -insure pursuant to ARTICLE IV. However, if within
three (3) years prior to the end of the period during which [Company B] covenanted to operate,
any such [Company B] Building is destroyed or damaged to the extent of thirty-three and one-
third percent (33 1/3°Io) or more of the replacement cost of the entire building, [Company B]
shall not be obligated to repair or restore its building or to thereafter operate. After the period
during which [Company B] has covenanted to operate, [Company B] shall have no obligation to
repair or restore its building irrespective of the extent of the damage thereto.
3.2 Damage to Developer Tract. During the period of the operating covenant of
[Company A] and [Company B] as set forth in the separate agreements between Developer and
[Company B] and Developer and [Company A] (provided [Company A] and [Company B] are
not both then in default under such operating covenant, but excluding any failure to operate as
the result of such fire or casualty unless [Company B] and [Company A] were in default
immediately prior to such fire or other casualty), if any of the buildings on the Developer Tract
are damaged by fire or other casualty insurable under a standard "All Risk" casualty policy,
Developer, without expense to [Company A] or [Company B], shall promptly (but not prior to
adjustment of loss by the insurer) commence, and diligently prosecute to completion, repair of all
such damage and shall restore and replace said improvements to not less than their condition
prior to such damage or destruction to a size of at least eighty-five percent (85%) but not more
than one hundred percent (100%) of the GLA of Lifestyle Shop space which existed prior to such
damage or destruction to the extent of insurance proceeds received and any "deductible" under
Developer's insurance policy; provided, however, Developer shall have the right to self -insure
pursuant to ARTICLE N. However, if thirty-three and one-third percent (33-1/3%) or more of
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the replacement cost of the improvements on the Developer Tract are destroyed or damaged
within three (3) years prior to the end of the period during which [Company A] and [Company
B] covenant to operate on their respective Tracts, or at anytime thereafter, then Developer shall
not be obligated to repair or restore the Developer Tract unless either [Company A] or [Company
B] agree in writing to operate a retail department store on the [Company A] Tract (with respect
to [Company A]) or the [Company B] Tract (with respect to [Company B]) for a period expiring
not less than ten (10) years from the date of such damage or destruction. In the event Developer
fails to repair and restore the Developer Tract as aforesaid, [Company A], if it is not in default
under its operating covenant, and [Company B], if it is not in default under its operating
covenant, may terminate their operating covenant.
3.3 Parking Area Restoration. In the event of any damage or destruction to the
parking areas on any Tract during the term of this CORER, by any cause whatsoever, whether
insured or uninsured, the Party owning such Tract shall restore, repair or rebuild the parking
areas on such Tract with all due diligence, but not prior to adjustment of loss by the insurer,
unless the Party owning such Tract elects in its sole discretion to proceed prior thereto.
3.4 Quality of Reconstruction. All work or repair or reconstruction on any building
or other improvements which are required to be rebuilt or repaired pursuant to this COREA shall
be commenced promptly following any loss or destruction and be carried through diligently to
conclusion by the Person required to rebuild or repair; provided, however, that if such restoration
is delayed by reason of Unavoidable Delays then the Person so delayed shall be entitled to an
extension of time for a period equal to the time between the date that the Person so delayed
notifies the other Person that it claims an extension of time until the event causing such delay is
terminated. All such repaired and rebuilt buildings and improvements shall be built and repaired
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to as good a condition, to the same general appearance and on the same level or story as the
buildings located upon such Tract immediately prior to such damage or destruction provided,
however, that neither this Section 3.4 nor Section 3.1 or 3.1 A shall be deemed to require
[Company B] or [Company A] to construct buildings or improvements which are inconsistent
with the [Company B] or [Company A] prototype buildings or improvements existing at the time
of the construction of such buildings and improvements.
3.5 Insurance Review. Developer and each owner of a Tract may, at any time, but not
more than one (1) time each five (5) years, require a review of the insurance coverage and limits
of liability for property insurance and liability insurance set forth in ARTICLE IV to determine
whether the coverage and the limits are reasonable and adequate in the then existing
circumstances. The review shall be undertaken on a week day and at a time during normal
business hours set forth in the requesting Person's notice and shall be conducted at the requesting
Person' s office on its Tract. If any of the Developer and the owners of a Tract are, after a
review, unable to agree on either the coverage or the limits, then the Developer and the owners
of a Tract shall submit the question of coverage and limits to an arbitrator appointed by the
senior state court judge of the court of original jurisdiction of the county or district in which the
Tract is located. In such arbitration each Person shall state its position as to required coverage
and/or limits, and the arbitrator, after hearing evidence, shall adopt, as the arbitrator's decision,
the position stated by one Person or the other, and there shall be no compromise. The arbitrator
shall set the rules of arbitration and the arbitrator's decision shall constitute an amendment to this
CORER. The cost of the arbitrator shall be shared equally by each Person contesting the amount
of coverage the reviewing Person is requesting. In rendering his decision the arbitrator shall
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consider the requirements of ARTICLE IV, inflation, changes in condition, and the insurance
then being carried by other comparable regional life-style shopping centers.
ARTICLE IV
INSURANCE
4.1 Property Insurance. The owners of the Tracts shall each, at all times during the
term of this CORER, maintain, or cause to be maintained, insurance on their respective
buildings, and on all improvements, alterations, additions and changes made thereon, against loss
or damage by fire or by the perils customarily included under a standard "Causes of Loss -Special
Form" property insurance, including flood and earthquake coverage. Such insurance shall,
during any periods of construction, be "builders risk" insurance and thereafter shall be not less
than eighty percent (80%) replacement cost insurance with a maximum deductible of Two
Hundred Thousand Dollars ($200,000.00) and shall provide that any loss payable shall be
ascertained without deduction for depreciation, however caused, and shall further provide a
proper allowance for any increased cost of repair, reconstruction or replacement by reason of any
ordinance or law regulating construction or repair. Such insurance shall be carried with
insurance companies rated "A-/VII" or better by the then current edition of Best's Insurance
Reports published by A.M. Best Co. (or its equivalent, if Best's is no longer published) and duly
authorized to do business in the state where the Lifestyle Shopping Center is located. Any
owner's mortgagee may be named as a mortgagee or as an additional insured on the owner's
policies. Each policy of insurance shall provide that notice of any material change or
cancellation shall be given thirty (30) days in advance thereof to the owner of each Tract.
4.2 Payment of Property Insurance Proceeds. Any loss covered by the insurance
required under Section 4.1 shall be adjusted by the owner of the Tract suffering such loss, and
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the proceeds shall be paid directly to such owner to be used in restoration if provided in such
Party's respective separate agreement, if any, with Developer. The policies of insurance required
under Section 4.1 may provide that the proceeds thereof be payable to the holder of any first
mortgage on the Tract insured under a standard mortgagee clause.
4.3 Indemnity. Each Party shall indemnify, defend and save harmless the other
owners, their respective officers, directors, partners, members, agents and employees from and
against all loss, cost (including reasonable attorneys' fees), damage, expense and liability as a
result of injury or death of any person, or property damage to any property, occurring (i) at any
time on such owner's Tract resulting from the negligence of the indemnifying Party, its officers,
directors, partners, members, agents or employees or the intentional misconduct of the
indemnifying Party, its officers, directors, partners, members, agents or employees, or (ii) on the
Tract of another owner resulting from the negligence of the indemnifying Party, its officers,
directors, partners, members, agents or employees, or the intentional misconduct of the
indemnifying Party, its officers, directors, partners, members, agents or employees. Subject to
the right to self -insure pursuant to Section 4.5, each owner shall carry liability insurance with
respect to its obligations to the owners of the other Tracts pursuant to this Section 4.3, such
insurance shall have a minimum combined single limit liability coverage of Five Million Dollars
($5,000,000.00) per occurrence for injury or property damage and a maximum deductible of Two
Hundred Thousand Dollars ($200,000.00).
4.4 Insurance Certificate. Each owner shall, upon written request by Developer or
owner, furnish such requesting Person with a certificate or certificates of its insurance carrier or
carriers evidencing the insurance required to be carried pursuant to this ARTICLE IV. The
insurance policies required pursuant to Sections 4.3 and 4.4 shall contain an endorsement to the
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effect that such insurance will not be terminated or materially altered or the amount thereof
reduced except on not less than thirty (30) days' prior written notice to Developer and all of the
other owners.
4.5 Self Insurance and Blanket Coverage. Any Party whose net worth shall be One
Hundred Million Dollars ($100,000,000.00) or more, or any such Party who shall have an
Affiliate guarantor of such Party's obligations under this ARTICLE IV whose net worth is One
Hundred Million Dollars ($100,000,000.00) or more, may carry any insurance required to be
maintained under this ARTICLE IV, either in whole or in part, under any plan of self insurance
which such Party or Affiliate guarantor may have in effect. Any Party may carry any insurance
under a policy or policies covering other liabilities and locations of such Party and covering
other liabilities and locations of any subsidiary, successor, Affiliate or controlling entity of such
Party, provided the policy limits apply separately to each location. The annual report of any such
Party or Party's guarantor shall be sufficient evidence of its net worth. The statement from an
Party or Party's guarantor that it has elected to be a self -insurer of the risk and in the amount
specified in such statement, may be supplied in lieu of the appropriate insurance certificate
otherwise required under Section 4.4. Any Party electing to self -insure shall, in the event of a
loss which would otherwise be insured under this ARTICLE IV, pay the amount of such loss as
provided and in the same manner as set forth in Section 4.2, and no self -insurer shall be entitled
to claim that its liability for such loss has in any way been limited by Section 5.1 hereof or
otherwise exculpated hereunder. The amount of any deductible, including any election of an
Party to carry less than full replacement cost coverage, shall be included in such Party's self-
insurance.
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4.6 Waiver of Subro ag tion. Developer, the Party owning each Tract and their
respective officers, directors, partners, members, employees and agents, are released from
liability or responsibility for any loss or damage to property covered by or required to be covered
hereunder by valid and collectible "All Risk" forms of casualty insurance or covered under such
owner's plan of self-insurance. This release shall apply not only to liability and responsibility of
the Parties to each other, but shall also extend to liability and responsibility for any one claiming
through or under the Parties by way of subrogation or otherwise. This release shall apply even if
the fire or other casualty shall have been caused by the fault or negligence of an owner or anyone
for whom a Party may be responsible. However, this release shall apply only with respect to the
dollar amount of the loss or damage actually recovered from an insurance company, and
Developer and such Party expressly reserve the right to bring an action for any "deductible"
amount contained in such Party's insurance policy. This release shall not apply to loss or
damage of property of an owner unless the loss or damage occurs during the times the "All Risk"
insurance policies of an owner contain a clause or endorsement to the effect that any release shall
not adversely affect or impair the policies or prejudice the right of the owner to recover
thereunder. Any "All Risk" insurance policies covering the Lifestyle Shopping Center or the
contents within the buildings on a Tract shall include this clause or endorsement as long as the
same shall be obtainable without extra cost, or, if extra cost shall be charged therefore, so long as
the other owners pay the extra cost. If extra cost shall be chargeable, the Party whose policy is
subject to the extra cost shall advise the Parties owning the other Tracts thereof, and of the
amount of the extra cost. Any Party electing to self -insure pursuant to the terms of Section 4.5
shall be deemed to have waived any rights it may have against the Parties owning the other
Tracts and their insurers in the same manner and to the same extent as such Party' s insurer would
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have done pursuant to the requirements of this Section 4.6 if such Party had not elected to self -
insure.
ARTICLE V
(~TF NTF R A I
5.1 Limited Liability of Developer. Notwithstanding anything contained in this
COREA to the contrary, after Developer completes construction of the Lifestyle Shopping
Center on the Developer Tract and opens for business (such date being called the "Release
D="), if thereafter Developer shall fail to perform or pay any covenant or obligation on its part
to be performed or paid hereunder or shall breach any warranty or otherwise incur any liability
for damages hereunder and as a consequence thereof [Company B], [Company A] or the owner
of any Tract shall recover a money judgment against Developer, such judgment shall (subject to
the rights of any mortgagee or holder of deed of trust whose lien, under applicable law, has
priority over such judgment and whose lien has not been subordinated by such mortgagee or the
holder of such deed of trust) be enforced against and satisfied only out of (i) the proceeds of sale
produced upon execution of such judgment and levy thereon against Developer's interest in the
Developer Tract, (ii) the rent, issues or other income from the Developer Tract, (iii) the
consideration received by Developer from the sale of all or any part of Developer's interest in the
Developer Tract, made after such failure of performance, and Developer shall not be liable for
any deficiency. The provisions of this Section 5.1 are not intended to relieve Developer from the
performance of any of its obligations hereunder, but rather after the Release Date to limit
Developer's liability as aforesaid, nor shall any of the provisions of this Section 5.1 be deemed to
limit or otherwise affect [Company A] or [Company B] or the owner of any Tract's right to
obtain injunctive relief necessary to enforce other rights specifically granted in this CORER.
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The provisions of this Section 5.1 shall also inure to the benefit of Developer's partners,
successors and assigns, and in the event of any sale or other transfer of all or part of the
Developer Tract, Developer shall, subject to the provisions of Section 5.3(b) concerning transfers
of less than the entire interest in a Tract, be entirely freed and relieved of all of its obligations set
forth in this COREA thereafter arising as to the portion of the Developer Tract so transferred.
Notwithstanding the foregoing, Developer shall be fully liable to the owners of any Tract
and [Company A] and [Company B] to the same extent it would be liable absent the foregoing
provisions of this Section 51 for: (i) fraud or willful misrepresentations of Developer; and (ii)
the misapplication by Developer of (A) any proceeds paid to Developer under any insurance
policies by reason of damage, loss or destruction to any portion of the Lifestyle Shopping Center,
or (B) any proceeds or awards paid to Developer resulting from the condemnation of all or any
part of the Lifestyle Shopping Center. In addition, the limitations contained in this Section 5.1
shall not apply to liability, if any, for fraud or willful misrepresentation of the partners or
members of Developer but only to the extent such liabilities would exist under applicable law in
the absence of such limitations.
5.2 Curing of Default. Except as expressly prohibited herein, in the event of a breach
by any Party of any terms or provisions hereof, only Developer or any other record owner of a
Tract or the owner of the Adjacent Land (or in the case of the breach of an easement granted to
the owner of an Out Parcel, the owner of the Out Parcel) may prosecute any proceedings at law
or in equity to enjoin such breach and to recover damages for such breach, including reasonable
attorneys' fees. In addition to all other remedies available at law or in equity, if [Company A],
[Company B] or the owner of any Tract shall default in the performance of any covenant
contained herein, Developer may, after giving the defaulting owner twenty (20) days prior notice
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specifying the event of default, cure the same and charge the cost of such curing to the defaulting
Person. If Developer shall default in the performance of any covenant contained herein, the
owner of any Tract may, after giving Developer twenty (20) days prior notice specifying the
event of default, cure the same and deduct the cost thereof from any sums payable hereunder or
under such Party's separate agreement with Developer, and/or charge the cost of such curing to
Developer. The foregoing periods for cure shall be extended with respect to events which cannot
be corrected within said twenty (20) day period, provided the defaulting Person commences to
cure such default within such twenty (20) day period and diligently prosecutes same to
completion. Nothing herein contained shall prevent any Person from proceeding to collect any
amounts expended by it in curing the other Person's defaults by any other means available to it
and without waiting for offsets to occur. Except for events provided for in the following
paragraph, a mortgagee of an owner of a Tract and a mortgagee of a Person shall have the right
to cure any default under this COREA by its mortgagor and shall have the right to cure same
within thirty (30) days after the expiration of the cure period available to its mortgagor.
Mortgagees that have furnished notice addresses to the owners of a Tract pursuant to Section 5.8
shall be furnished with copies of notices given pursuant to this Section 5.2.
If a non -defaulting Person, including Developer, shall reasonably and in good faith deem
that an emergency situation exists or that a material interference with its business is occurring or
has occurred, so that the default requires immediate curing, then, in any such case, no notice
shall be required and the non -defaulting Person may act promptly without having given such
twenty (20) day notice as a condition to doing such work (but the non -defaulting Person shall use
its best efforts to give oral notice prior to acting). Such action shall be taken only to the extent
necessary to cure the emergency situation or the material interference with the non -defaulting
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Person's business to the minimum extent possible in light of the circumstances at hand. With
reasonable promptness after so acting, the non -defaulting Person shall give notice to the
defaulting Person of the doing of such work and the claimed failure. The non -defaulting Person
shall prosecute any work performed by it under the provisions of this Section 5.2 diligently to
completion. Each Person and their respective employees, agents, and contractors shall have a
license to enter upon a Tract (except the building constructed thereon) for the purpose of
exercising its right of self-help as provided herein.
5.3 Transfer of Ownership or Interest.
(a) When used in this COREA, the following capitalized terms have the meanings
stated in this Section 5.3:
AFFILIATE - With respect to any Person, another Person
controlled by, or controlling, or under common control with the
Person in question ("control" for this purpose means, in the case
of a corporation, partnership, limited liability company, or other
legal entity, the legal or beneficial ownership of in excess of 50%
of the voting securities or interests of the Person controlled).
MORTGAGE - A mortgage, deed of trust, deed to secure debt,
security deed or other instrument recorded against any Tract or
tract within the Parties' Tracts securing a loan.
PERSONS) - Individuals, partnerships, limited liability
companies, firms, associations and corporations, or any other form
of legal entity.
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SALE AND LEASEBACK - A Transfer (as defined herein) in
which the Transferor (as defined herein), or an Affiliate thereof,
acquires as part of the same transaction a leasehold interest in all or
substantially all of the property transferred, which lease has an
initial term which will not expire prior to the expiration of ten (10)
years from the date of the commencement of operations by a party;
provided, however, the terms of such lease shall enable the
Transferor to discharge its obligations with respect to its operating
covenant contained in the separate agreement between [Company
A] and Developer and [Company B] and Developer.
TRANSFER - A sale, assignment, grant or other conveyance
(other than a condemnation) of all or any portion of the fee of a
Tract (and if of less than the entire fee of all thereof, then whether
by conveyance of the entire fee of any portion or of an undivided
interest), including, without limitation, the sale portion of a Sale
and Leaseback, but excluding the making of a Mortgage and
excluding the execution of a lease, sublease, license or easement.
TRANSFEREE - The purchaser, assignee, grantee or Transferee
in a particular Transfer.
TRANSFEROR - The seller, assignor, grantor or Transferor in a
particular Transfer.
(b) Except as otherwise provided in this Section 5.3, in the event of a Transfer of all
or any portion of the fee of a Tract, it shall be deemed and construed that the Transferee has
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expressly assumed and covenanted effective upon the making of such Transfer, to perform and
be bound by all the terms, covenants and conditions under this COREA to be performed by the
Transferor with respect to such Tract; however, if such Transfer is of less than the entire interest
in such Tract, such Transferee shall be deemed to be jointly and severally liable with all other
owners of interests in such Tract in connection with all terms, covenants and conditions under
this COREA binding the owner(s) of such Tract. Upon any Transfer, the Transferee shall enter
into an assumption agreement covering the foregoing matters.
(c) In the case of a Sale and Leaseback in which the Transferee is an institutional
lender (or an investor or a Person who as part of the same transaction is procuring some or all of
the funds for such purchase by means of a Mortgage loan from an institutional lender), the
Transferee, and its successors and assigns, notwithstanding the provisions of subsection (b)
hereof, shall not: (i) be deemed to have assumed the terms, covenants and conditions under this
COREA to be performed by the Transferor, or (ii) be personally liable to the other Parties for
default in performance of any of the terms, covenants and conditions under this COREA to be
performed in respect of the Tract being Transferred. The Transferor (or an Affiliate thereof, as
the case may be), or successor, assigns or sublessee thereof, as holder of the leasehold interest
under the lease which is a part of such Sale and Leaseback shall be deemed to have agreed to be
bound hereby and shall, if requested by the other Parties, execute a recordable instrument
binding itself hereby (if it is not otherwise liable therefor on any other basis) for the benefit of
the other Parties to this COREA; provided, however, the Transferee, or its successors at such
time as it becomes the Owner of such Tract shall, without further act, become (and shall be
deemed to have agreed so to become) liable upon such terms, covenants and conditions to the
extent thereafter to be performed (but shall not be liable for the performance of any such term,
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covenant or condition as to any matter which arose prior thereto), with respect to such Tract on
the date when such lease is terminated for default or is surrendered or when the demised term
thereunder expires, but only if and so long as such Transferee or its successors at such time as
owner thereof has not entered into another lease, in which case the tenant thereunder shall be
deemed and construed to have assumed the terms, covenants and conditions under this COREA
to be performed by the Transferor with the same effect as if it had been the Transferee in a
Transfer as provided in subsection (b) hereof.
(d) In the event of the making of any Mortgage, the holder of such Mortgage shall
take its interest subject to this CORER, provided that nothing in this COREA shall be deemed to
make the holder thereof liable for the performance of any term, covenant or condition under this
COREA to be performed by the owner of such mortgaged Tract; provided, however, that if and
when title to such Tract becomes vested in any Person as a result of a foreclosure under said
Mortgage or by deed in lieu of foreclosure or the holder of the Mortgage becomes a mortgagee in
possession of such Tract, then such Person or mortgagee shall, so become liable for the
performance of any such term, covenant and condition thereafter to be performed (but shall not
be liable for the performance of any such term, covenant or condition as to any matter which
arose prior thereto), and it shall remain so liable only for the performance of such terms,
covenants or conditions to be performed during the period when such title to such Tract is vested
in it or it has become a mortgagee in possession of such Tract. Neither the making of such
Mortgage nor its foreclosure shall release the maker thereof from any liability it would have had
under this COREA had such Mortgage not been made. No mortgagee shall be deemed a
mortgagee in possession if such mortgagee cures any default under said Mortgage or this
COREA or cures any default or exercises any right of self-help under said Mortgage or under
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law. The failure of a Party to perform any of its obligations, duties, agreements or covenants
hereunder may constitute a default under any Mortgage of the defaulting Party if such Mortgage
so provides. Notwithstanding any other provisions of this CORER, neither the mortgagee nor its
successor shall have any personal liability for any of the matters under this COREA except to the
extent of, and mortgagee's liability shall be limited to, mortgagee's estate and interest in the
applicable Tract and the rent, issues and other income from such Tract.
(e) Upon the consummation of a Transfer (unless such Transfer is of a character
described in subsection (c) or is a Transfer in connection with foreclosure by a mortgagee or
acceptance of a deed in lieu of foreclosure) where the Transferor Transfers its entire interest in
such Tract, the Transferor shall, provided it has delivered notice of such Transfer to the other
parties and provided the Transferee specifically assumes in writing the obligations of the
Transferor under this COREA and agrees to be bound thereby, be released from any and all
liability which would thereafter arise from or in connection with any term, covenant or condition
under this COREA to be performed after the Transfer. The Transferor shall however remain
liable for all such liability in respect of events theretofore occurring and shall remain primarily
obligated under this COREA until the date of such Transfer.
(f) Nothing in this Section 5.3 shall be construed to limit the enforcement of any
rights of a mortgagee under a Mortgage. Nothing in this Section 5.3 shall eliminate or modify
the provisions of Section 5.19 requiring the prior consent of Developer and all Parties.
(g) Each Party shall give to the mortgagee of any other Party a notice certifying, if
true, that the other Party is in default under this CORER, provided that the mortgagee shall have
previously requested the right to receive that notice by providing an address to which the notice
shall be delivered to all parties. Any such notice to a mortgagee shall be given in the same
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manner as provided in Section 5.8 of this COREA. The mortgagee under any Mortgage
affecting the Tract of the defaulting Party shall be entitled to the same right, to be exercised, if at
all, concurrently with such defaulting Party, to cure any such default. Giving of any notice of
default or the failure to deliver a copy to any mortgagee shall in no event create any liability on
the part of the Party or Developer so declaring a default.
5.4 Exhibits. All exhibits to this COREA are by this reference made a part of this
COREA to the same extent as the same would be if written directly within the body of this
COREA.
5.5 Rights Cumulative. All rights, powers and privileges conferred hereunder shall
be cumulative and not restricted to those given by law.
5.6 Sole COREA. This COREA shall, together with the [Company A] and [Company
B] separate agreements with Developer, constitute the sole agreements between the Developer
and [Company A] and [Company B] with respect to the Tracts and all prior negotiations are
merged herein. This COREA may not be amended except by a writing executed by all Parties;
provided, however, in situations in which the easements or rights granted herein to the owner of
the Adjacent Land or the Out Parcels are being modified or eliminated or decreased, such
amendment must be executed by the owner of the Adjacent Land or the Out Parcels, as
applicable.
5.7 Applicable Law. This COREA shall be governed and construed in accordance
with the law of the State in which the Tracts are located. If any provision of this COREA shall,
to any extent, be invalid under such law, the remaining provisions of this COREA shall not be
affected thereby. The titles of the various subdivisions of this COREA are for convenience only
and shall not be considered in construing this COREA.
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5.8 Notice. Any notice, demand, consent, request, approval or other document or
instrument required or permitted hereunder shall be in writing and shall be deemed to have been
duly served on the date on which the addressee thereof has received or is deemed to have
received the same, as hereinafter set forth, and shall be sent by registered or certified United
States Mail, postage prepaid, return receipt requested, or by nationally recognized overnight
express delivery service, or by electronic transfer with confirmation of receipt by the transmitting
machine before 4:00 P.M. at the location of the addressee (otherwise such notice shall be deemed
received on the next business day), at the address indicated below, unless the Person giving such
notice has been notified, in writing of a change of address:
If to Developer: Wolford Development Montana, LLC
Four Squares Business Center
1200 Mountain Creek Road, Suite 102
Chattanooga, Tennessee 37405
Attn: James L. Wolford
Facsimile: (423) 874-0748
with a copy to: Baker, Donelson, Bearman, Caldwell & Berkowitz, P.C.
633 Chestnut Street, Suite 1800
Chattanooga, Tennessee 37450
Attn: Kenneth C. Beckman, Esq.
Facsimile: (423) 752-9519
If to [Company A]:
Attn:
Facsimile:
With a copy to:
Attn:
Facsimile:
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If to [Company B]:
Attn :
Any Person may change the place for serving of notices upon it by ten (10) days' prior
written notice informing the other Parties of the change in address to which notices shall be sent.
Rejection or other refusal to accept or the inability to deliver because of a changed address of
which no notice was given shall be deemed to be the receipt of the notice or request.
5.9 Heirs and Assigns. All the terms, conditions and provisions of this COREA shall
extend to and be binding upon the Parties and any successor Person acquiring any interest in or
to any portion of a Party' s Tract, by transfer, conveyance, merger or as otherwise permitted
under this COREA except as otherwise provided in subparagraphs (a), (b), (c), (d) and
below, and with respect to easements created on the Out Parcels or which, by the specific terms
of such easement, are for the benefit of an Out Parcel, the owner of such Out Parcel and its
respective heirs, executors, administrators and successors and assigns who become owner of the
fee simple title to the Out Parcel. A successor by reason of any transfer, conveyance, merger, or
as otherwise provided in this CORER, of the whole or any part of the interest of any Party in and
to such Party' s Tract shall not become a Party under the following circumstances:
(a) While and so long as the transferring Party retains the entire possessory interests
in the Tract or in any portion thereof so conveyed by the terms of a Mortgage, in which event the
Person owning such possessory interest, and not the mortgagee, shall have the status of Party.
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(b) The transfer or conveyance is a Sale and Leaseback, in which event only the
lessee entitled to possession of the Tract shall have the status of Party, so long as the Sale and
Leaseback has not expired or been terminated.
(c) The transfer or conveyance is by way of lease or sublease, (other than as provided
in (b) above), license or easement, in which event only the lessor, transferor or conveyor shall
have the status of a Party.
(d) The successor acquires by such transfer or conveyance:
(i) less than all of a Party's Tract; or
(ii) less than the entire interest of a Party in a Tract, such as that of
joint tenancy, tenancy in common, or a life estate; or
(iii) An undivided interest, legal or equitable, in the assets of any Party,
which interest is not also an interest in the Party's Tract.
In the circumstances described in this Subparagraph (d), the Persons holding each of such
interests in such Tract are to be jointly considered a single Party.
If any Party acquires, transfers or conveys its interest in its Tract in such manner as to
vest ownership of fractionalized interest in more than one Person, then the several owners of
such factionalized interest must designate one of their number to act on behalf of all such owners
in the performance of this CORER, which designation Developer is entitled to rely upon until
notice of a new designation signed by all such owners or in order of a court of competent
jurisdiction is received by Developer to the contrary; provided, however, all such owners are
jointly and severally liable under this CORER. Nothing contained in this Section 5.9 shall
eliminate or modify the provisions of Section 5.19 requiring the prior consent of Developer and
all Parties.
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5.10 Time of Essence. Time is of the essence in the performance of the terms and
conditions of this COREA.
511 Estoppel Certificate. Each Party shall, not more than two (2) times per calendar
year and within thirty (30) days after written request of any other Party, issue to such other Party,
to a prospective purchaser or to any mortgagee of such Party, an estoppel certificate stating: (i)
whether to the best knowledge of the Party or [Company B] to whom the request has been
directed, any default exists under this COREA beyond applicable notice and cure periods, and if
there are known defaults, specifying the nature thereof; (ii) whether to its knowledge this
COREA has been assigned, modified or amended in any way (or if it has, then stating the nature
thereof); and (iii) that to the knowledge of the Party this COREA is, as of that date, in full force
and effect.
5.12 Superiority of COREA. This COREA and all amendments hereafter entered into
shall be prior and superior to the title, lien or encumbrance of any mortgage, deed of trust, deed
to secure debt, security deed, lease, ground lease, or other interest in, or encumbrance upon any
of the Tracts. Each Party shall cause any mortgage or deed of trust holder which has recorded a
lien on its Tract prior to the recordation of this COREA to record a subordination agreement
acknowledging that such lien is subordinate to this COREA.
5.13 No Joint Venture. Nothing contained in this COREA shall be construed to make
or create the relationship of partners or joint venturers or to render any Party liable for the debts
or obligations of any other Party, except as this COREA may expressly provide.
5.14 No Third Party Beneficiary. Except as expressly provided in Section 5.3 (c),
Section 5.3(d), Section 5.9, and ARTICLE VIII, this COREA shall in no way constitute or create
rights in persons, firms or entities not Parties or signatories hereto or create obligations or
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responsibilities to such third persons not Parties or signatories hereto. This COREA is not
intended to and shall not be construed to dedicate any rights or easements to the general public.
5.15 Conflicts.
(a) Where any irreconcilable conflict appears between the terms and conditions of
this COREA and the provisions or illustrations of any Exhibit forming a part of this COREA, the
terms of this COREA shall control.
(b) [Intentionally omitted.]
(c) The terms and provisions of this COREA which create and establish rights and
obligations as between Developer and [Company A] and [Company B] supplement the terms and
provisions of each of such Person's respective separate agreements with Developer, and the
terms and provisions of such separate agreements, as between Developer and the Persons thereto,
shall control if in conflict with provisions of this COREA.
5.16 Unavoidable Delays. For the purposes of this COREA, a closing on a holiday, or
a temporary cessation of business for purposes of taking inventory, to make repairs or alterations,
or caused by an "Unavoidable Delay," as hereinafter defined, and in any case any cessation of
business by Developer or any Department Store for a period not in excess of ninety (90) days in
the aggregate in any calendar year, shall not be deemed a discontinuance of any such business.
Each Party shall be excused from performing any of their respective obligations or undertakings
provided in this COREA, except any of their respective obligations to pay any sums of money
under the applicable provisions hereof, so long as the performance of such obligation is
prevented or delayed by any cause which is beyond the control of such Person, including but not
limited to the forces of nature, fire, earthquake, floods, explosion, actions of the elements, war,
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invasion, insurrection, riot, violence, sabotage, malicious mischief, failure of transportation,
shortages of or limitations on the availability of energy or water, strikes, lockouts, picketing,
action of labor unions, condemnation, requisition, order of government or civil or military
authorities, or any other cause, whether similar or dissimilar to the foregoing, not within the
control of such Person; provided, however, if such Person shall not have given the other Parties
notice of such event, the nature thereof and the delay reasonably expected to be caused thereby
in writing within thirty (30) days after the occurrence of such event, the period of time between
the expiration of said thirty (30) day period and the giving of such notice shall be excluded from
the period of Unavoidable Delay. Any delay or cause excusing performance pursuant to the
terms of this Section 5.16 is referred to herein as "Unavoidable Delay."
5.17 No Termination of COREA. Except as herein expressly provided, no breach of
this COREA or default by any other Party shall entitle any Party to terminate or cancel this
COREA.
5.18 Covenants Running With the Land. Except as herein otherwise expressly
provided, all covenants, conditions, restrictions and agreements contained herein binding and
benefiting the Parties, respectively, shall be deemed to be and shall be construed as covenants
running with the land. Wherever a covenant, condition or agreement refers to a specific Tract,
such covenant, condition or agreement shall be deemed to have been made by the fee owner of
such Tract unless otherwise provided herein.
5.19 Plot Plan Changes:
(a) Notwithstanding anything to the contrary contained in this COREA, without the
prior written consent of Developer and all Parties hereto, which consent may be withheld in the
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sole and absolute discretion of each such Party, except as expressly provided for in Exhibit "A"
there shall be no:
(i) addition of GLA (except that any Expansion pursuant to
Sections 1.2, or this Section 5.19 is specifically hereby pre -approved by
Developer and all Parties);
(ii) division, subdivision or material change in the configuration of any
Tract forming a part of the Lifestyle Shopping Center;
(iii) changes to the parking area of any Tract;
(iv) addition of land to, or subtraction of land from, the Lifestyle
Shopping Center; or
(v) material change to the configuration of the Lifestyle Shopping
Center, and any improvements thereon (except that any Expansion pursuant to
Section 1.2 is specifically hereby approved by Developer and all Parties), as
reflected on the Plot Plan attached as Exhibit "A" to this CORER, whether now
existing or hereafter constructed in accordance with this CORER, except for
changes in the Lifestyle Shops spaces within the Permissible Building Areas on
the Developer Tract;
(b) It is understood and agreed that the configuration of the Lifestyle Shopping
Center as depicted on Exhibit A, including all improvements, tabulations and notations thereon,
is of the utmost importance to the Parties hereto. It is further understood and agreed that such
Exhibit A attached hereto is a primary inducement to the Parties to enter into this CORER, that
such Parties are entering into this COREA in reliance on such Exhibit A and that any material
deviation described in Paragraphs (i) through (v) of Paragraph (a) of this Section 5.19 shall be
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deemed actionable and a default by the Party taking such action hereunder. The Parties agree
that in the event of a breach of this Section 5.19 monetary damages would be difficult, if not
impossible to ascertain, and would be inadequate in any event, and that the Parties shall each
have the right to injunctive relief in the event of a breach of this Section 5.19.
(c) Any Expansion of any building shall be permitted only to the extent and within
the Permissible Building Areas.
5.20 Assignment of Developer Rights. By recorded instrument, Developer may assign
all of its rights, title and interest as "Developer" to any other Person, provided further that such
assignment is signed by both assignor and assignee. Notwithstanding the provisions of Section
5_3 and Section 5.18, no Transfer by Developer of any Tract (except for a transfer to a mortgagee
under a mortgage or its successors and assigns through foreclosure or deed in lieu of foreclosure)
shall result in an assignment of Developer's rights, titles and interests as "Developer" in absence
of an express provision to that effect. No Person may be the Developer unless such Person is an
owner of a Tract. No succeeding Developer may terminate, rescind or revoke any rights or
consents previously granted by Developer to a Person, including any owner of a Tract or
Permittee, without the express consent of such Person.
5.21 [Intentionally Omitted.l
5.22 Soft Opening. The Parties agree that the opening of any Building on any Tract on
a date before [ ] is prohibited and any Party shall be entitled to any and
all remedies relating to a violation of this Section 5.22 including but not limited to injunctive
relief.
5.23 Compatible Uses. During the term hereof, the Lifestyle Shopping Center will
only be used for uses which are not incompatible with the then -existing uses on the balance of
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the Lifestyle Shopping Center. Each Tract shall be used for lawful purposes in conformance
with this COREA and with all restrictions imposed by applicable governmental laws, ordinances,
codes, and regulations, and no use or operation shall be made, conducted or permitted on or with
respect to all or any portion of a Tract which is illegal. No Tract or portion of any Tract shall be
used for any of the uses described on Exhibit "H" attached hereto and incorporated herein.
Date")
ARTICLE VI
TERMINATION
This COREA shall terminate on the earlier of the following dates (the "Termination
(i) Seventy (75) years from the date of the Grand Opening Date;
(ii) Such earlier termination as provided pursuant to and in accordance
with this CORER.
ARTICLE VII
DEFINITIONS
ADJACENT LAND The property designated as the "Adjacent Land" on the Plot
Plan and more particularly described on Exhibit "C".
AFFILIATE: With respect to any Person, another Person controlled by, or
controlling, or under common control with the Person in
question ("control" for this purpose means, in the case of a
corporation, partnership, limited liability company, or other
legal entity, the legal or beneficial ownership in excess of 50%
of the voting securities or interests of the Person controlled).
[COMPANY A]:
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[COMPANY A]
TRACT:
[COMPANY A]
BUILDING:
[COMPANY B]:
[COMPANY B]
BUILDING:
[COMPANY B]
TRACT:
COMMON AREA:
CORER:
The Tract designated as the "[Company A] Tract" on the Plot
Plan and more particularly described in Exhibit "D".
The building identified in Section 1.2 which is contemplated to
be built on the [Company A] Tract.
The building identified in Section 1.2 which is contemplated to
be built on the [Company B] Tract.
The Tract designated as the "[Company B] Tract" on the Plot
Plan and more particularly described in Exhibit "E".
The areas in the Lifestyle Shopping Center described in
This Construction Operation and Reciprocal Easement
Agreement for Glacier Mall as the same may be amended from
time to time.
DEPARTMENT A retail store containing more than 80,000 square feet of GLA
STORE(S): f m significant
offering avarietyo merchandise cantportinf
0o
which is wearing apparel and which is generally recognized in
the retail industry as a "department store."
DEVELOPER:
DEVELOPER
TRACT:
Wolford Development Montana, LLC, a Montana limited
liability company and the assignee of Developer's rights and
powers under this COREA pursuant to a recorded instrument
reflecting such assignment of rights as required by the
provisions of Section 5.20.
The Tract designated as such on the Plot Plan and described in
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Exhibit "F". Upon conveyance of any portion or portions
thereof, to governmental entities such portion(s) shall cease to
be a part of the Developer Tract.
EXPANSION: The additions by Developer to the buildings on the Developer
Tract, as shown on the Plot Plan, by [Company B] to the
[Company B] Building, as shown on the Plot Plan, and by
[Company A] to the [Company A] Building, as shown on the
Plot Plan.
GLA: The gross leasable area of a building shall mean the area of
square feet of floor within buildings, whether rented or
rentable or not, including ground floor area used for storage,
measured to the outside of the exterior walls of the buildings,
to the center line of party walls, and to the exterior of walls
abutting exit and/or service corridors, but not including
(i) Common Area, (ii) administrative offices, (iii) mezzanines
or enclosures used for mechanical, telephone, computer and
electrical equipment or storage and not used as sales area.
GRAND OPENING
DATE:
KIOSK(S): The devices described in Section 2.4(a).
LIFESTYLE SHOPS: The occupants of the buildings built on the Developer Tract.
LIFESTYLE The [Company A] Tract, the [Company B] Tract and the
SHOPPING CENTER:
Developer Tract as listed in Section 1.1 and as described in
"Exhibit "F1". The Out Parcels and the Adjacent Land shall
not be included within the term "Tract," as used in this
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CORER.
MORTGAGE: A mortgage, deed of trust, deed to secure debt, security deed
or other instrument recorded against any Tract or any Tract
within the Parties' Tracts securing a loan.
OCCUPANT: Any individuals, partnerships, associations, limited liability
companies, corporations or other form of legal entity from
time to time (i) leasing or otherwise occupying floor area in
the Lifestyle Shopping Center or (ii) owning a Tract within the
Parties' Tracts.
OUT PARCELS: The property referenced in Sections 1.1 and 1.5 and more
particularly described in Exhibit "G". The Out Parcels are
not included as part of the Lifestyle Shopping Center.
PARTY OR [Company A], [Company B] and Developer and their
PARTIES: respective permitted successors and assigns.
PERIMETER Those sidewalks identified in Section 2.1.
SIDEWALKS:
PERMITTEES: The tenant(s) or occupant(s) of a Tract, and the respective
employees, agents, contractors, customers, invitees, and
licensees of (i) the owner of such Tract, and/or (ii) such
tenant(s) or occupant(s).
PERSON: Any individual, partnership, limited liability company, firm,
association and corporation, or any other form of legal entity.
PLOT PLAN: The plot plan referenced in Paragraph B of the Recitals on the
first page of this COREA and attached as Exhibit "A".
RELEASE DATE: The date set forth in Section 5.1.
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RESTRICTIONS That agreement relating to the Out Parcels and referenced in
AGREEMENT: C Apt; �n 1 �
SALE AND A Transfer in which the Transferor, or an Affiliate thereof,
LEASEBACK: it f h mtransaction leasehold in r in
acquires as part o the samea to est
all or substantially all of the property transferred, which lease
has an initial term which will not expire prior to the expiration
of ten (10) years from the date of the commencement of
operations by a Party; provided, however, the terms of such
lease shall enable the Transferor to discharge its obligations
with respect to any operating covenant contained in any
separate COREA with such Transferor.
SIGN CRITERIA: Those sign specifications and criteria set forth in Exhibit "G"
attached hereto.
TERMINATION The date set forth in ARTICLE VI.
DATE:
TRACTS: The [Company A] Tract, the [Company B] Tract and the
Developer Tract as listed in Section 1.1. The Out Parcels and
the Adjacent Land shall not be included within the term
"Tract," as used in this CORER.
TRANSFER:
TRANSFEREE:
A sale, assignment, grant or other conveyance (other than a
condemnation) of all or any portion of the fee of a Tract (and if
of less than the entire fee of all thereof, then whether by
conveyance of the entire fee of any portion or of an undivided
interest), including, without limitation, the sale portion of a
Sale and Leaseback, but excluding the making of a Mortgage
or the execution of a lease, sublease, license or easement.
The purchaser, assignee, grantee or Transferee in a particular
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TRANSFEROR:
UNAVOIDABLE
DELAY:
8.1 Utility Easements.
Transfer.
The seller, assignor, grantor or Transferor in a particular
Transfer.
The delays specified in Section 5.16.
ARTICLE VIII
1P A Q1PA41PXT'TC
(a) The Parties hereby declare, establish and grant for the benefit of, and as an
appurtenance to, each Tract within the Lifestyle Shopping Center and the Out Parcels and the
Adjacent Land, for the use and benefit of the Party owning each Tract, its respective Tract and
the Out Parcels and the owner of the Adjacent Land and the Adjacent Land, such irrevocable,
non-exclusive easements which shall be perpetual and shall survive and extend beyond the
expiration of the term of this CORER, through, under, across and on each Tract and the Adjacent
Land, as are reasonably necessary, without unreasonably interfering with the encumbered Party's
use of its Tract or use of the Adjacent Land, as provided in this CORER, to provide rights -of -
way for utility services to each Tract and the Adjacent Land and access to and use of the gas,
electrical, communications, water, storm and sanitary sewer systems and other utilities for the
benefit of each Tract and the Out Parcels, and the Adjacent Land and right-of-way for lines
connecting therewith.
(b) Such easements shall include the right to construct, replace, repair and maintain
(but not between October 15 to December 31 nor during the forty-five (45) day period prior to
Easter, except in the event of an emergency) such utility lines and facilities as may be reasonably
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necessary to enjoy the benefit of the easements granted by this Section 8.1, but nothing contained
in this sentence shall in any way modify or limit any Party' s obligations set forth in this CORER.
All construction, replacement, repair and maintenance of such utility lines shall be performed in
such a manner as does not unreasonably interfere with the normal and usual operation of any
stores, customer parking or the Lifestyle Shopping Center. Any Party (or the owner of the
Adjacent Land) making such replacements or repairs shall promptly restore all paving,
landscaping and any other improvements disturbed thereby to its former condition at its sole cost
and expense. All such lines, conduits and facilities shall be buried beneath the surface of the
ground in conformity with good engineering practice for underground lines, conduits and
facilities, shall not conflict with other utility lines, conduits and facilities, and shall have been
previously reasonably approved by all owners of such lines, conduits and facilities which are
situated within twenty (20) feet of any point of such proposed line, conduit or facility. All
presently anticipated lines, conduits and facilities shall be shown on the working drawings
required by each Party' s separate agreement with Developer. The location of all lines, conduits
and facilities not so shown and the terms of such easements shall be disclosed to all Parties, and
shall be subject to the prior written consent of the Party owning the Tract upon which same are
located (and the owner of the Adjacent Land if such lines, conduits or facilities are located on the
Adjacent Land), which approval shall not be unreasonably withheld, delayed or conditioned.
(c) Nothing herein contained shall restrict or prevent a Party owning a Tract or the
owner of the Adjacent Land from granting to any public utility, public body or other public
authority, or to any third party, easements over or under its Tract, for public utility lines and
facilities, water, storm and sanitary sewer lines and conduits and facilities therefor, or for
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drainage or slope purposes, or for other pipe line purposes so long as such easements do not
adversely affect the parking area in, or the use of, the Common Area.
(d) Developer shall obtain all easements required to bring public sanitary sewer lines
and public sanitary sewer service to the Lifestyle Shopping Center to facilitate the initial
construction of the improvements on the Lifestyle Shopping Center and such lines up to the
property line of the Lifestyle Shopping Center shall be maintained by the public or the
appropriate utility company.
(e) In the event Developer arranges for dedication of any additional utility easements
and lines to the appropriate utility company or governmental authority, and such additional
easement(s) and line(s) are reasonably necessary in connection with the operation of the
Lifestyle Shopping Center, the Parties and the owner of the Adjacent Land and the owner of any
Out Parcel shall each dedicate such easements and lines on their respective Tracts and the
Adjacent Land and the Out Parcels, upon request of Developer, and such form of easement as
shall be reasonably acceptable to Developer and any Parties or the owner of the Adjacent Land
or the owners of Out Parcels whose respective Tracts will be encumbered thereby.
8.2 Drainage. The Parties hereby declare, establish and grant for the benefit of, and
as an appurtenance to, each Tract within the Lifestyle Shopping Center and Out Parcels and the
Adjacent Land, for the use and benefit of the Party owning each Tract, its respective Tract and
the Out Parcels and the Adj acent Land and the owner of the Adjacent Land, the irrevocable,
perpetual, non-exclusive right and easement to discharge storm and surface water from each of
their respective Tracts within the Lifestyle Shopping Center and the Out Parcels and the
Adjacent Land to each Tract in the Lifestyle Shopping Center and the Adjacent Land and the Out
Parcels through the general storm and surface water system designed and constructed for the
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Lifestyle Shopping Center. The Parties hereby declare, establish and grant for the benefit of, and
as an appurtenance to, each Tract within the Lifestyle Shopping Center and the Adjacent Land,
for the use and benefit of the owners of the Tracts and owner of the Adjacent Land, an
irrevocable, perpetual, non-exclusive easement across the Lifestyle Shopping Center and the
Adjacent Land, for storm drainage lines, conduits and facilities from each Party's Tract and the
Adjacent Land to connect with the stormwater drainage system for the Lifestyle Shopping
Center. No drainage lines from property other than the Lifestyle Shopping Center, the Out
Parcels, the Ad j acent Land, and upstream properties shall be permitted to tap into the existing
storm drainage lines, if such tap would result in exceeding the capacity of the drainage lines.
The above drainage easements shall be located pursuant to Section 8.6. Such drainage easements
shall be perpetual and shall survive and extend beyond the expiration of the term of this COREA.
8.3 Construction Easements. The Parties hereby declare, establish and grant for the
benefit of, and as an appurtenance to, each Tract within the Lifestyle Shopping Center, for the
use and benefit of the owners of the Tracts and their respective Tracts, such easements and rights
in, on and to their respective Tracts (i) for the construction and maintenance of foundations,
footings, floor slabs and other structural components (not exceeding six (6) inches) reasonably
necessary in connection with the construction of the improvements on their respective Tracts and
their integration therein, and (ii) provided that same does not affect the separate insurance rating
of any Party's building, for roof projections and/or wall projections (not in excess of six (6) feet
in length) of a building on one Tract extending to the building on the other Tract and permitting
such roof projection or wall of one building to be tied into (but not supported by) the adjoining
Party's building. The easements granted by this Section 8.3 shall expire on the later of (1) the
date that this COREA is terminated, or (2) as to any Tract, the date that neither the buildings on
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the Developer Tract nor the buildings on such Tract in question shall be in existence if such
buildings are relying on said easements, excluding periods of rebuilding after damage,
destruction or condemnation.
8.4 Ingress and Earess.
(a) The Parties hereby declare, establish and grant for the benefit of, and as an
appurtenance to, each Tract within the Lifestyle Shopping Center and the Adjacent Land, for the
use and benefit of the owners of such Tracts and owner of the Adjacent Land, their respective
Tracts and the Adjacent Land, and their respective officers, partners, directors, members, agents,
contractors, employees, customers, invitees, licensees, tenants, Occupants, successors and
assigns ("Permittees"), non-exclusive easements over all Common Area on each Tract and the
Adjacent Land (as such may exist from time to time) (as hereinafter defined), for the purpose of
ingress and egress to, from and between the Developer Tract, each owner's Tract and the
Adjacent Land and any road or highway adjacent to the Lifestyle Shopping Center. The
easements granted herein shall terminate concurrently with the expiration of this CORER. The
Parties hereby declare, establish and grant (in addition to and without limiting the easements
granted in the first sentence of this Section 8.4) for the benefit of, and as an appurtenance to the
[Company B] Tract and the Developer Tract and the Adjacent Land (as applicable), for the use
and benefit of the owners of such Tracts and the Adjacent Land and their respective Permittees a
non-exclusive perpetual easement over the areas which are identified as "Perpetual Access
Easement" on the Plot Plan and which abut each applicable Tract or the Adjacent Land for the
purpose of ingress and egress to, from and between each owner's tract and the Adjacent Land
and any road or highway adjacent to the Lifestyle Shopping Center. Such easement shall be
subject to the other easements granted in this Section 8.4(a) as well as other easements
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established in this COREA which are applicable to such Perpetual Access Easement areas.
Without the prior written consent of all owners, no rerouting or material modification or changes
shall be made to the roadway identified on the Plot Plan as the "Ring Road".
(b) If during periods of construction it becomes desirable to establish separate gates
to the Lifestyle Shopping Center or to any Tract, each Party shall cooperate in requiring its
contractors and subcontractors to use such designated gates.
8.5 Common Area and Parking Use. The Parties hereby declare, establish and grant
for the benefit of, and as an appurtenance to, each Tract within the Lifestyle Shopping Center
and the Adjacent Land, for the use and benefit of the owners of the Tracts and the owner of the
Adjacent Land, their respective Tracts and the Adjacent Land, and their respective Permittees,
the full and unrestricted non-exclusive right to use all Common Area and the driveways,
sidewalks and parking areas therein on each Tract and the Adjacent Land (as such driveways,
sidewalks and parking areas are configured from time to time) for the same purpose and to the
same extent that the customers, invitees, and licensees may use such Common Area and
driveways, sidewalks and parking areas on such Tract and the Adjacent Land. The easements
granted in this Section 8.5 shall terminate concurrently with the expiration of the term of this
CORER. Except as provided in the last sentence of Section 8.4(a), the owners of each Tract and
the Adjacent Land reserve and shall have the unilateral right to alter or modify the sidewalks,
parking areas, driveways and Common Areas provided such areas as modified comply with such
Party's separate agreement, if any, with Developer and provided the provisions of Section 1.3
and the provisions of Section 2.8 are met.
8.6 Location of Easements. Upon completion of any utility and drainage facilities
constructed pursuant to Section 8.1 and Section 8.2, Developer and the owners of each Tract and
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the owner of the Adjacent Land shall join with the party requesting such agreement in the
execution of a mutually acceptable agreement, in recordable form, appropriately identifying the
type and location of each respective utility or drainage facility. The easements granted pursuant
to Section 8.1 and Section 8.2 may, from time to time, be relocated by, and at the sole expense
of, the party requesting the relocation to another location on the encumbered Tract or on another
Party's Tract or on the Adjacent Land, provided that there shall be no unnecessary interruption of
utility service during such relocation and there shall be no interference with any existing or
proposed improvements on another Party' s Tract or on the Adjacent Land.
8.7 Right of Repair. The rights referred to in this ARTICLE VIII shall include the
right, on thirty (30) days' prior notice given by the Developer exercising the right to any other
Party, to construct and repair the facilities referred to in this ARTICLE VIII to the extent
necessary to fully provide the uses and benefits of the rights so granted, but nothing in this
sentence shall in any way modify, limit or lessen the obligations with respect to maintenance or
any other provision with respect to the Common Area as provided elsewhere in this CORER. It
is mutually agreed that the grants contained herein are not intended and shall not be construed as
a dedication of the respective Tracts or any portion thereof or the Adjacent Land, nor of the
rights so granted, for public use, nor for the benefit of any third parties not specifically named in
this CORER, and the Parties owning the Tracts and the owner of the Adj acent Land shall take
whatever steps may be necessary to avoid such dedication, except as provided in Section 8.1(e).
Rights of maintenance and repair of facilities on a Party' s Tract or the Adjacent Land shall not
be exercised unless such responsible Party or the owner of the Adjacent Land fails to perform
such maintenance or repairs as required hereby. Any such maintenance and repairs, once
commenced, shall be diligently prosecuted to completion.
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8.8 Areas Dedicated. Any areas of the Lifestyle Shopping Center or the Adjacent
Land which are deeded and dedicated to an appropriate governmental body or authority for use
as a public street and/or for street widening purposes shall, at the option of Developer,
automatically and ipso facto be deleted from the terms, covenants and conditions of this
CORER, provided, however, that Developer may, at its option, resume and/or continue the
maintenance responsibility over the areas set forth in this Section 8.8 and, should it exercise such
option, the maintenance of such items shall continue to be governed by the terms of this
CORER. The Parties agree to reasonably cooperate in facilitating the dedication of such areas of
the Lifestyle Shopping Center.
8.9 Staging Areas/Future Construction. The Party owning a Tract shall have the
right, subject to the terms herein and subject to any separate agreement between such Party and
the Developer, to construct new or additional construction on its Tract within the permissible
building areas shown on the Plot Plan. In the event Developer or any Party undertakes or
permits any new or additional construction, remodeling or Expansion on the Lifestyle Shopping
Center, such construction shall be performed in accordance with the following restrictions and
limitations:
(i) During all times that any Party is constructing, remodeling,
restoring or enlarging its building within the Permissible Building Areas shown
on the Plot Plan, such Party shall have the right to utilize a staging and storage
area in the Common Area on its Tract at a location designated on the Plot Plan,
and if not so designated, at a location to be agreed upon by Developer and the
constructing, remodeling, restoring or enlarging Party, provided passage through
such Party's Tract, passage through any adjoining Party's Tract, and visibility of
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such Party's building shall not be materially and adversely interfered with. Such
Party shall relocate said staging area one (1) time to a location mutually
acceptable to Developer and such Party to facilitate construction of any Common
Area required to be constructed by Developer. Any drives must be kept open or
rerouted temporarily to a location reasonably acceptable to Developer. Any Party
performing such construction, remodeling, restoring or enlarging may, at its
expense, fence off the staging and storage area, provided that, upon completion of
remodeling, restoring or enlarging, as the case may be, it will promptly remove
such fence and repair any damage caused by such fence or its use of such area;
(ii) Developer or such Party commencing construction shall require
and enforce a parking restriction requiring all persons performing work on such
construction to park their automobiles in the staging area or in the employee
parking area within said Party's Tract;
(iii) Developer or such Party commencing construction shall require
and enforce a restriction requiring that all trucks bringing materials or labor to the
construction site use only an entrance to the Lifestyle Shopping Center which is
designated by Developer;
(iv) Developer or such Party commencing construction shall,
immediately upon completion of construction, repair, or cause to be repaired, any
damage to the Common Area or other improvements in the Lifestyle Shopping
Center in any way caused by or related to such construction;
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(v) Prior to commencing any construction, Developer or such Party
commencing construction shall cause its general contractor to deliver evidence of
insurance in amounts and types required by ARTICLE IV; and
(vi) Such construction shall be architecturally compatible with existing
construction on the Lifestyle Shopping Center, and all such work shall be
performed in such a manner that it does not unreasonably interfere with the
operation of the Lifestyle Shopping Center.
8.10 Mechanic's Liens. Each Party shall keep or cause to be kept the Lifestyle
Shopping Center and the improvements thereon free and clear of and from any and all
mechanics', materialmen's and other similar liens arising out of or in connection with its
operations or the activities of others claiming under it, and to pay and discharge when due any
and all lawful claims upon which any such lien may or could be based, and to save and hold the
Parties owning the other Tracts and their respective Tracts and the improvements thereon free
and harmless from any and all such liens and any and all claims of liens and suits or other
proceedings pertaining thereto. The accrual, by operation of law, of mechanics', materialmen's
and similar liens shall not in and of itself be a breach of this Section 8.10. If a Party desires to
contest any such lien filed or threatened against the Lifestyle Shopping Center or any other
Party' s Tract, it shall notify the other Parties of its intention so to do promptly after it has actual
knowledge of the filing of such lien and shall bond such lien or insure that such lien will not
affect the title to the property which it covers. In the event of a final determination of the
validity of any contested lien, the contesting Party shall pay and discharge the same, to the extent
held valid, at least twenty (20) days prior to the date execution could be had upon the judgment
rendered thereon. In the event of any such contest, the contesting Party shall protect and
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indemnify the other Parties against all loss, cost, expense and damage resulting therefrom. The
foregoing requirement for bonding or insuring over such lien shall not apply if such lien is
recorded only against the Tract owned by such Party.
ARTICLE IX
CONDEMNATION
91 Condemnation. In the event that either (i) twenty percent (20%) or more of the
Developer Tract or twenty percent (20%) or more of any other Tract or any part of the land under
any building shall be condemned and taken by right of eminent domain or for public or quasi -
public use or sold under threat of condemnation, or (ii) as a result of condemnation or sale under
threat of condemnation, any Tract is separated from and no longer contiguous to the Developer
Tract, the Party whose Tract shall have been so condemned or sold, may, in any of such events
and at its option, exercisable by written notice to the Parties owning the other Tracts, within the
period from ninety (90) days before to thirty (30) days after the taking or sale, terminate this
COREA as to its Tract and thereupon shall be released from any further liability hereunder,
except as provided in Section 5.19 and except for any perpetual easements which shall not
terminate.
9.2 Separate Awards. If all or any part of a Tract is condemned or taken (instead of
being sold under threat of condemnation), Developer and each of the Parties owning the Tracts,
if permitted by law, shall seek separate awards from the condemning authority for taking of its
respective Tract and in such event neither shall have any right to any part of any award made to
the other. In the event of condemnation of a part of any Tract which does not result in
termination of this COREA as to such Tract, then the Parties owning such Tract shall, to the
extent of such condemnation award, restore the building and Common Area on its Tract so as to
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provide a building and Common Area of the same general appearance as prior to such
condemnation.
9.3 Substitute Parkin. Any Party whose Tract has been so condemned may provide
substitute parking spaces on or contiguous to its Tract in locations and of a design subject to the
reasonable approval of Developer and the Parties owning the other Tracts.
ARTICLE X
UTILITIES AND TAXES
10.1 Utilities. Each Party shall make arrangements for and pay for, or cause to be paid,
all charges for utility services supplied to building(s) and Common Area on its respective Tract,
unless otherwise provided herein or in the Party's separate agreement with Developer.
10.2 Real Estate Taxes.
(a) Each Party shall pay, or cause to be paid, when due, all real estate taxes and
assessments upon its respective Tract which shall be assessed, levied, imposed or become a lien
thereon.
(b) In the event a Party shall deem any real estate tax or assessment (including the
rate thereof or the assessed valuation of the property in question or any other aspect thereof) to
be paid by such Party to be excessive or illegal, such Party shall have the right, at its own cost
and expense, to contest the same by appropriate proceedings, and nothing contained in this
Section 10.2 shall require such Party to pay any such real estate tax or assessment as long as the
amount or validity thereof shall be contested in good faith, and in the opinion of counsel for such
Party, such Party' s Tract shall not thereby be in danger of being forfeited.
[SIGNATURES ON FOLLOWING PAGE.]
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IN WITNESS WHEREOF, Developer, [Company A] and [Company B] have executed
this COREA as of the date first written above.
WOLFORD DEVELOPMENT MONTANA,
LLC, a Montana limited liability company
By:
Name:
Title:
STATE OF TENNES S EE
COUNTY OF HAMILTON
Before me, , a Notary Public in and for said State and County
aforesaid, duly commissioned and qualified, personally appeared , with
whom I am personally acquainted (or proved to me on the basis of satisfactory evidence), and
who, upon oath, acknowledged himself to be the of WOLFORD
DEVELOPMENT MONTANA, LLC, the within -named bargainor, a Montana limited liability
company, and that he, as such , being duly authorized so to do,
executed the foregoing instrument for the purposes therein contained by signing the name of the
limited liability company by himself as such
WITNESS my hand and seal at office on this the day of
Notary Public
My Commission Expires:
53
, 2007.
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[COMPANY A]
By:
Name:
Title:
STATE OF ARKANSAS
COUNTY OF
Before me, , a Notary Public in and for said State and County
aforesaid, duly commissioned and qualified, personally appeared ,
with whom I am personally acquainted (or proved to me on the basis of satisfactory evidence),
and who, upon oath, acknowledged himself to be the of [COMPANY A],
the within -named bargainor, an corporation, and that he, as such
, being duly authorized so to do, executed the foregoing instrument for
the purposes therein contained by signing the name of the corporation by himself as such
WITNESS my hand and seal at office on this the day of
Notary Public
My Commission Expires:
54
, 2007.
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[COMPANY B]
By:
Name:
Title:
STATE OF
COUNTY OF
Before me, , a Notary Public in and for said State and County
aforesaid, duly commissioned and qualified, personally appeared , with
whom I am personally acquainted (or proved to me on the basis of satisfactory evidence), and
who, upon oath, acknowledged himself to be the of [COMPANY B], the
within -named bargainor, a corporation, and that he, as such
, being duly authorized so to do, executed the foregoing instrument
for the purposes therein contained by signing the name of the corporation by himself as such
WITNESS my hand and seal at office on this the day of
Notary Public
My Commission Expires:
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EXHIBIT "A"
PLOT PLAN
[Attach final plot plan when finalized)
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EXHIBIT "B"
LEGAL DESCRIPTION OF OUT PARCELS
[See attached.]
[Insert When Finalized]
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EXHIBIT "C"
LEGAL DESCRIPTION OF ADJACENT LAND
[Insert legal description of adjacent land when finalized]
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EXHIBIT "D"
LEGAL DESCRIPTION OF [COMPANY Al TRACT
[Insert legal description when finalized]
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EXHIBIT "E"
LEGAL DESCRIPTION OF [COMPANY B1 TRACT
[Insert legal description when finalized]
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EXHIBIT "F"
LEGAL DESCRIPTION OF DEVELOPER TRACT
[Insert legal description when finalized]
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EXHIBIT "FI"
LEGAL DESCRIPTION OF LIFESTYLE SHOPPING CENTER
[Insert legal description when finalized]
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EXHIBIT "G"
SIGN CRITERIA
1. ADMINISTRATION
a. The Developer has the responsibility for enforcing these criteria. Each Occupant
(other than the Department Stores) shall submit to the Developer for approval before fabrication
two (2) copies of detailed drawings showing location of the sign on the storefront or designated
space, size, layout, design and color of the proposed sign, including all lettering and/or graphics,
materials, attachment devices, construction and fabrication detail.
b. Each sign shall at all times conform and comply with all applicable codes,
ordinances and other requirements of applicable governmental authorities.
C. Each Occupant or its agents shall obtain all permits required for its sign or signs
and the installation thereof.
d. Each Occupant shall be responsible for the fulfillment of all requirements and
specifications at its sole cost, risk and obligation, and shall be responsible for the actions or
omissions of its sign contractor.
2. CONSTRUCTION REQUIREMENTS
a. All signs, bolts, fastenings and clips shall be glass, plastic, hot dipped galvanized
iron, stainless steel, aluminum, brass or bronze. No black iron of any type will be permitted.
b. All permitted exterior letters or signs exposed to the weather shall be mounted 3/a
of an inch from the building wall to permit proper dirt and water drainage, and no letter shall
project more than twelve (12) inches from the wall face.
C. All penetrations of the building structure required for sign installation shall be
neatly sealed in a watertight condition.
d. The sign contractor shall repair any damage to any work caused by his work.
e. No labels will be permitted on the exposed surface of signs except those required
by local ordinance and, if required, shall be in an inconspicuous location.
f. All electrical signs shall bear the U.L. label and shall be completed to the
Occupant's electric service.
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3. DESIGN REQUIREMENTS FOR DEPARTMENT STORE SIGNS
a. Any signs for a Department Store which shall be erected and maintained on the
exterior wall of any building shall comply with the following requirements:
(1) the design and color shall be similar to the respective Department
Store's usual and typical signs then in effect.
(2) no Department Store shall install any sign on the exterior of any
building other than the building in which its own Department Store is located.
(3) no Department Store shall install any sign on the exterior of any
structure unless Developer approves the location and design characteristics of
such sign; and
(4) the initial letters of any sign on any exterior walls of a building
shall be no larger than eight (8) feet in height, whether script or block, and all
subsequent lettering shall not exceed eight (8) feet in height.
(5) There shall be no signs painted on the exterior surface of any
building.
b. There shall be no free standing signs, except for traffic control and directional
signs as determined by Developer, subject to the reasonable approval of the Department Store on
whose Tract such signage is to be located. Each Department Store may erect a temporary
"Coming Soon" sign on its Tract during construction of its building to announce its store in the
Lifestyle Shopping Center. Such temporary sign may also list the names of such Department
Store's architect, contractor and lender, if any.
C. There shall be no roof top signs, and no signs may project above the parapet on
top of the wall to which it is mounted or above the roof line if any such sign is to be affixed to
the side of a building not having a parapet wall. Signs affixed to the sides of cooling tower
enclosures, penthouses and similar building elements shall be considered roof top signs and shall
not be permitted.
d. No banners, posters, flags or pennants shall be affixed to the roof of any
buildings, to any exterior walls of buildings, or to any exterior door, window or display window
or from any portion of the Common Area.
e. All of the requirements of Section 4 of this Exhibit shall apply to the signs for
[Company A] and [Company B] under this Section 3.
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4. SIGNS IN EXTERIOR COMMON AREAS OTHER THAN ON BUILDINGS
Only (a) traffic control signs, (b) perimeter drive directional signs, (c) a time/temperature
sign for any bank or financial institution located on the Parties' Tracts, (d) the monument signs
designated on the Plot Plan, which shall identify the Lifestyle Shopping Center only, (e) the
Developer pylon sign designated on the Plot Plan, and (f) a pylon designated on the Plot Plan for
use by a theatre, which may include a reader board for a theatre.
5. PROHIBITED SIGNS
The following types of signs are prohibited unless specifically approved in writing by
Developer:
(a) Signs employing moving or flashing lights, except for the panel or
reader boards described in Section 4 hereof.
(b) Signs employing exposed wiring, conduit, conductors, tubing,
lamps, ballast boxes, raceways, transformers or other equipment.
(c) No signs will be allowed to become attached to or temporarily
placed within display windows, except where they are constructed of self-
supporting material and are made an integral part of the display in said window.
(d) Moving signs, except for the panel and reader boards described in
Section 4 hereof.
(e) Paper, cardboard or painted signs, unless professionally prepared.
(f) Audible signs.
(g) Building roof -top signs.
(h) Box or cabinet type employing luminous plastic panels.
6. COST - MAINTENANCE - REPLACEMENT - REPAIR
Each Occupant shall at its own sole cost, risk, expense and obligation (including without
limiting the same) design, construct, install, clean, maintain, replace, repair and refurbish the
signs herein required or permitted to be installed with respect to such Occupant.
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EXHIBIT "H"
USE RESTRICTIONS
1. Environmental remediation facility;
2. Exterminating service;
3. Butane distribution;
4. Exterminating and fumigating warehouse;
5. Bulk storage of gasoline or fuel oil tanks;
6. Bulk storage of paint and varnish;
7. Petroleum products packaging and storage (except as incidental to retail sales);
8. Adult book store or adult novelty store (meaning a store primarily engaged in the
sale, rental, distribution or display of pornographic, lewd, sexually explicit or so-
called adult materials and not a general interest bookstore such as Barnes & Noble or
B.Dalton or a full -line video store such as Blockbuster Video, Video Update or
Hollywood Video);
9. Adult theater or so-called "gentlemen's club" featuring nude, topless or scantily clad
men or women;
10. Day labor hiring hall;
11. Pawn shop;
12. Religious mission, including a charity dining hall;
13. Commercial loading of small arms or manufacture of ammunition;
14. Rock quarrying, sand and gravel or other mineral extraction;
15. Any assembling, manufacturing, distilling, refining, smelting, agriculture or mining
operation;
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16. Transit terminal (except to the extent required by government authorities having
jurisdiction);
17. Propane sales (except as incidental to other retail sales or service);
18. Drive-in movie theater;
19. Movie theater (but this shall not be applicable to Developer Tract);
20. Tattoo establishment;
21. Body -piercing establishment;
22. A second-hand store, thrift store, swap shop, liquidation outlet or used clothing store,
including any business that regularly sells merchandise referred to as "odd lot",
"cancellation", "second", "factory reject", "sample", "floor model", "floor
demonstrator", "obsolescent", "distress", "salvage" or "damaged", but this shall not
prohibit the operation of a typical Ross or T.J. Maxx store or comparable store;
23. An auditorium or other general place of assembly (but this shall not be applicable to
not more than one theater (which theater may have an unlimited number of screens)
located on the Developer Tract);
24. Concrete or cement products manufacturing;
25. Plating or polishing shop (but excluding any such items incidental to a jewelry store);
26. Plating works or electric plating (but excluding any such items incidental to a jewelry
store);
27. Foster home or group foster home;
28. Facility devoted to (with a primary purpose of) hatching, raising, breeding and
marketing animals (but excluding any pet store);
29. Feeder lot for horses, cattle, goats or sheep;
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30. Farm;
31. Bail bond company;
32. Body and fender shop;
33. Cannery, slaughter house or meat processing or packaging plant;
34. Cesspool service;
35. Flour or grain elevator;
36. Motor vehicle fuel distribution facility;
37. Outdoor hay and straw storage;
38. Massage establishment (except for massage services offered by a health club, fitness
center, day spa, beauty salon, beauty parlor, barber shop, nurse or chiropractor);
39. Repair and rewinding of transformers or generators;
40. Outdoor paving materials storage;
41. Welding shop;
42. Wrecking yard or j unkyard;
43. Shelter or dormitory intended to provide temporary shelter;
44. Carnival (but this shall not prohibit promotional events in the Common Areas);
45. Dumping or disposal of garbage or refuse (except as may be incidental to an
otherwise permitted use);
46. Flea market;
47. Booths for the sale of fireworks;
48. Rehabilitation or treatment center for physical, mental or substance abuse;
49. A cemetery, crematorium, funeral home, funeral parlor, or facility for the sale of
caskets;
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50. A so-called "head shop" or facility for the sale, rental, distribution or display of drug
paraphernalia such as roach clips, bongs, water pipes, coke spoons, cigarette
wrapping papers, pipes and/or syringes;
51. A bowling alley, billiard parlour, pool room, game room or amusement arcade (but
this shall not be applicable to any such items which are incidental to a theater located
on the Developer Tract);
52. Acoin-operated laundry or dry cleaner (but this shall not be deemed to prohibit a
pick-up and drop-off facility offering incidental services such as pressing and
tailoring);
53. The sale, rental or storage of motor vehicles or mobile homes (but this shall not
prohibit the promotional display of motor vehicles (but not mobile homes) in the
Common Areas);
54. Shows (but this shall not be applicable to a theater on the Developer Tract);
55. Check cashing services, provided, however, that this restriction shall not prohibit the
cashing of checks by the owner of any Tract as an incidental service provided in
connection with retail sales or services on its Tract but in no event shall a deferred
presentment or payday advance or similar store or service be operated on any portion
of the Lifestyle Shopping Center;
56. A school, including the operation of a pre-school or day care center;
57. A cocktail lounge, bar, tavern or nightclub, but this shall not prohibit the sale of
alcoholic beverages incidental to the operation of a restaurant;
58. Any governmental use;
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59. Or any other business which creates strong, unusual, obnoxious or offensive odors,
fumes, dust, dirt, fly ash or vapors, is a public or private nuisance, emits noise or
sounds which are objectionable due to intermittence, beat, frequency, shrillness or
loudness, creates any unusual fire, explosion or other damaging or dangerous hazard
(including the storage, display or sale of explosives or fireworks).
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