Exhibit D Sample AgreementSAMPLE
EXHIBIT D
[INTERIOR COMMERCIAL]
DECLARATION OF
EASEMENTS, COVENANTS, CONDITIONS AND RESTRICTIONS
THIS DECLARATION OF EASEMENTS, COVENANTS, CONDITIONS AND
RESTRICTIONS (this "Declaration") is executed as of the day of ,
2007, by WOLFORD DEVELOPMENT MONTANA, LLC, a Montana limited liability
company ("Declarant").
l? li C 19P A T C
A. Declarant is developing a mixed use development in Kalispell, Flathead County,
Montana.
B . Developer owns the property described as Exhibit A (the "Lifestyle Center
Property") .
C. Developer owns the additional adjacent property described on Exhibit B (the
"Interior Commercial Property").
D. Declarant wishes to impose certain easements, covenants, conditions and
restrictions upon and with respect to the Interior Commercial Property and the Lifestyle Center
Property, for the mutual and reciprocal benefit and complement of the each of the Interior
Commercial Property and the Lifestyle Center Property, and the present and future Owners (as
hereinafter defined) of portions thereof, on the terms and conditions hereafter set forth.
E. The Interior Commercial Property is comprised of the tracts shown on the
attached Plot Plan (the "Tracts").
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F. The Interior Commercial Property and the Lifestyle Center Property are part of a
development of a larger tract constituting the entire Glacier Town Center Property (the "Entire
Premises") .
NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants
contained herein, Declarant declares as follows:
ARTICLE I
D A D TI TIXTt"
1.1 Restrictions and Limitations. Each Owner of a Tract on the Interior Commercial
Property 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 each such Tract.
ARTICLE II
COMMON AREA
2.1 Common Area.
(a) The Common Area ("Common Area") shall consist of 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 located on the Interior Commercial Property
("Perimeter Sidewalks")), all retention/detention areas, all planted or landscaped areas
(including, but not limited to, landscaped areas located between Perimeter Sidewalks and the
buildings located on the Interior Commercial Property) and all other common facilities, all as
located on the Interior Commercial Property as such common area may be configured from time
to time. 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
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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.
2.2 Sales in Common Area.
(a) Without the proper written consent of the Declarant, 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 the
Interior Commercial Property, 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 which is part of the Interior Commercial Property, unless the
Declarant shall consent prior thereto in writing.
(b) Without the prior written consent of the Declarant, no Owner of any Tract which
is part of the Interior Commercial Property shall permit sales to be made in or conducted from,
nor any merchandise to be stored upon, any exterior Common Area on the Interior Commercial
Property.
(c) Notwithstanding the foregoing, outdoor restaurant seating shall be permitted on
the Interior Commercial Property.
2.3 Common Area Maintenance. Declarant shall, subject to the provisions of
Section 2.5 herein, keep all Common Area on the Interior Commercial Property, in a first-class
state of repair and shall continuously perform maintenance to ensure such state of repair.
Declarant' 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
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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 Declarant' s areas
of responsibility shall be restriped as determined by Declarant. All holes or breaks in the paving
within Declarant' s areas of responsibility shall be repaired as determined by Declarant within a
reasonable time after the same appear. Notwithstanding the foregoing, Declarant's obligation for
repair and maintenance of the parking areas on each Tract which is part of the Interior
Commercial Property only extends to repairing, patching and striping same and does not include
resurfacing of the parking areas. Should it become necessary or advisable, in the judgment of
Declarant, to resurface the parking area in the Interior Commercial Property, the cost thereof will
be borne by the Owner of each Tract which is part of the Interior Commercial Property in the
proportion of the area of such Tract bears to the entire area of the Interior Commercial Property,
unless otherwise provided in such Owner's separate agreement with Declarant.
2.4 Common Area Cleaning. Declarant shall at all times keep all Common Area on
the Interior Commercial Property, in a clean, neat and sanitary condition consistent with the
operation of a first class regional open air shopping center or business center. Without limiting
the generality of the foregoing, Declarant will:
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(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
(iv) Cause all garbage receptacles of all occupants of the Interior
Commercial Property to be emptied, and the garbage removed as needed.
If Declarant shall fail to comply with any one of the requirements of Section 2.3 or this
Section 2.4, and such failure shall not be cured within ninety (90) days following written notice
by an Owner of a Tract which is part of the Interior Commercial Property of such condition, or if
such condition re -occurs within ninety (90) days of such cure or attempted cure by Declarant,
then any Owner of such Tract which is part of the Interior Commercial Property may, at its
option, exercise the right of self-help under Section 6.1 as to the exterior Common Area on its
respective Tract which is part of the Interior Commercial Property.
2.5 Operation and Maintenance of Common Area by Owners. In the event any
Owner of a Tract which is part of the Interior Commercial Property assumes control of the
maintenance of the exterior Common Area on its Tract which is part of the Interior Commercial
Property, the Owner of such Tract which is part of the Interior Commercial Property shall
operate, maintain and repair the exterior Common Area on its Tract which is part of the Interior
Commercial Property in accordance with the requirements imposed under this Declaration.
2.6 Parkin Area. The parking areas, sidewalks, aisles, streets and driveways on the
Tracts which are part of the Interior Commercial Property shall not be fenced or otherwise
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obstructed (except at a mutually acceptable time and as is necessary to prevent the public from
obtaining rights by prescriptive use), and shall be kept open at all times for the free use thereof
by the persons or entities entitled thereto pursuant to this Declaration. Without the prior written
consent of the Declarant, all parking areas (as such areas exist from time to time) on the Interior
Commercial Property shall be used for parking purposes only and for no other purpose or use
whatsoever.
2.7 Maintenance of Buildings. The Owner of each Tract which is part of Interior
Commercial Property shall maintain and repair 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.
2.8 Reimbursement. All costs described in this ARTICLE II for the maintenance,
operation, repair and cleaning of all or any portion of the Common Area which is part of the
Interior Commercial Property by Declarant shall be reimbursed by the Owner of the applicable
Tract which is part of the Interior Commercial Property as provided in such Owner's separate
agreement with Declarant.
ARTICLE III
F A .q_P_N4FIXTT.0
3.1 Utility Easements.
(a) Declarant hereby declares, establishes and grants for the benefit of, and as an
appurtenance to, each Tract which is part of the Interior Commercial Property and the Lifestyle
Center Property, for the use and benefit of the Owner of each Tract which is part of Interior
Commercial Property, its respective Tract and the owner of the Lifestyle Center Property, such
irrevocable, non-exclusive easements which shall be perpetual and shall survive and extend
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beyond the expiration of the term of this Declaration, through, under, across and on each Tract
and the Lifestyle Center Property, as are reasonably necessary, without unreasonably interfering
with the encumbered owner's use of its Tract or the Lifestyle Center Property, to provide rights -
of -way for utility services to each Tract and the Lifestyle Center Property 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 Lifestyle Center Property 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
necessary to enjoy the benefit of the easements granted by this Section 3.1, but nothing contained
in this sentence shall in any way modify or limit any owner's obligations set forth in this
Declaration. 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 shopping center located on such property. Any
owner 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. The location of all lines,
conduits and facilities shall be disclosed to Declarant, and shall be subject to the prior written
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consent of the owner of the Tract or Lifestyle Center Property upon which same are located,
which approval shall not be unreasonably withheld, delayed or conditioned.
(c) Nothing herein contained shall restrict or prevent an owner of a Tract which is
part of the Interior Commercial Property or the owner of the Lifestyle Center Property from
granting to any public utility, public body or other public authority, or to any third party,
easements over or under its Tract or Interior Commercial Property or property, for public utility
lines and facilities, water, storm and sanitary sewer lines and conduits and facilities therefor, or
for 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 on such property.
(d) In the event Declarant arranges for dedication of any utility easements and lines to
the appropriate utility company or governmental authority, on any Tract on the Interior
Commercial Property, the owner of the Interior Commercial Property shall dedicate such
easements and lines on their respective Tracts, upon request of Declarant, in such form of
easement as shall be reasonably acceptable to Declarant and the owner of the applicable Tract
which is part of the Interior Commercial Property
3.2 Drainage. Declarant hereby declares, establishes and grants for the benefit of, and
as an appurtenance to, each Tract within the Interior Commercial Property and the Lifestyle
Center Property, for the use and benefit of the owner of each Tract, its respective Tract and the
Interior Commercial Property and the owner of the Lifestyle Center Property, the irrevocable,
perpetual, non-exclusive right and easement to discharge storm and surface water from each of
their respective Tracts of Interior Commercial Property and the Lifestyle Center Property
through the general storm and surface water system designed and constructed for the Entire
Premises. Declarant hereby declares, establishes and grants for the benefit of, and as an
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appurtenance to, each Tract within the Interior Commercial Property and the Lifestyle Center
Property, for the use and benefit of the owners of the Tracts and owner of the Lifestyle Center
Property, an irrevocable, perpetual, non-exclusive easement across the Interior Commercial
Property and the Lifestyle Center Property, for storm drainage lines, conduits and facilities from
each owner's Tract and the Lifestyle Center Property to connect with the stormwater drainage
system for the Entire Premises. No drainage lines from property other than the Entire Premises,
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 3.6. Such drainage easements shall be perpetual and shall
survive and extend beyond the expiration of the term of this Declaration.
3.3 Intentionally Omitted.
3.4 Ingress and Earess.
(a) Declarant hereby declares, establishes and grants for the benefit of, and as an
appurtenance to, each Tract which is part of the Interior Commercial Property and the Lifestyle
Center Property, for the use and benefit of the owners of such Tracts and owner of the Lifestyle
Center Property, their respective Tracts and the Lifestyle Center Property, 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 of which is part of the Interior Commercial Property and
the Lifestyle Center Property (as such may exist from time to time) (as hereinafter defined), for
the purpose of ingress and egress to, from and between each owner's Tract which is part of the
Interior Commercial Property and the Lifestyle Center Property and any road or highway
adjacent to the Entire Premises. The easements granted herein shall terminate concurrently with
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the expiration of this Declaration. Declarant hereby declares, establishes and grants (in addition
to and without limiting the easements granted in the first sentence of this Paragraph 3.4) for the
benefit of, and as an appurtenance to the Lifestyle Center Property and the Interior Commercial
Property (as applicable), for the use and benefit of the owners of such Tracts and the Lifestyle
Center Property and their respective Permittees a non-exclusive perpetual easement over the
areas which are identified as "Perpetual Access Easement" on the Plot Plan for the purpose of
ingress and egress to, from and between each owner's Tract and the Lifestyle Center Property
and any road or highway adjacent to the Entire Premises. Such easement shall be subject to the
other easements granted in this Section 3.4(a) as well as other easements established in this
declaration which are applicable to such Perpetual Access Easement areas.
(b) If during periods of construction it becomes desirable to establish separate gates
to the Entire Premises or to any Tract, each Owner shall cooperate in requiring its contractors
and subcontractors to use such designated gates.
3.5 Intentionally Omitted.
3.6 Location of Easements. Upon completion of any utility and drainage facilities
constructed pursuant to Sections 3.1 and 3.2, Declarant and the owner of the Tracts of Interior
Commercial Property 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
Sections 3.1 and 3.2 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 property, 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 owner's property.
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3.7 Right of Repair. The rights referred to in this ARTICLE III shall include the
right, on thirty (30) days' prior notice given by the Declarant exercising the right to any other
owner, to construct and repair the facilities referred to in this ARTICLE III 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 Declaration.
It is mutually agreed that the grants contained herein are not intended and shall not be construed
as a dedication of any portion of the Interior Commercial Property or the Lifestyle Center
Property, nor of the rights so granted, for public use, nor for the benefit of any third parties not
specifically named in this Declaration, and the Owners of the Tracts which are part of the
Interior Commercial Property and the Lifestyle Center Property shall take whatever steps may be
necessary to avoid such dedication. Rights of maintenance and repair of facilities on a Tract of
Interior Commercial Property shall not be exercised unless or the owner of the Interior
Commercial Property fails to perform such maintenance or repairs as required hereby. Any such
maintenance and repairs, once commenced, shall be diligently prosecuted to completion.
3.8 Areas Dedicated. Any areas of the Interior Commercial Property or the Lifestyle
Center Property which are deeded and dedicated to an appropriate governmental body or
authority for use as a public street and/or for street widening purposes and any portion of any
sewer lines or water lines or other utility lines which are dedicated to an appropriate
governmental body and for which such governmental body or authority has maintenance
responsibility shall, at the option of Declarant, automatically and ipso facto be deleted from the
terms, covenants and conditions of this Declaration, provided, however, that Declarant may, at
its option, resume and/or continue the maintenance responsibility over the areas set forth in this
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Section 3.8. and, should it exercise such option, the maintenance of such items shall continue to
be governed by the terms of this Declaration.
3.9 Mechanic's Liens. Each owner shall keep or cause to be kept its property 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 owners of the other Tracts which are
part of the Interior Commercial Property and their respective Tracts and the Lifestyle Center
Property 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 3.9. If an owner desires to contest any such lien filed or threatened against
any other owner's Tract of the Interior Commercial Property or the Lifestyle Center Property, it
shall notify the other owners 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 owner 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 owner shall protect and indemnify the
other owners 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 or property owned by such owner.
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ARTICLE IV
TERMINATION
4.1 Termination. This Declaration shall terminate on the earlier of the following
dates (the "Termination Date"):
(a) Seventy-five (75) years from the date of the effective date of this Declaration as
set forth in the introductory paragraph of this Declaration; or
(b) Such earlier termination as provided pursuant to and in accordance with this
Declaration.
4.2 Survival. All easements granted in ARTICLE III, except those which by their
terms survive the termination of this Declaration, shall, if not terminated sooner, terminate on the
termination of this Declaration.
ARTICLE V
UTILITIES AND TAXES
5.1 Utilities. Each Owner of a Tract of Interior Commercial Property 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 of Interior Commercial Property, unless
otherwise provided herein or in the owner's separate agreement with Declarant.
5.2 Real Estate Taxes.
(a) Each owner shall pay, or cause to be paid, when due, all real estate taxes and
assessments upon its respective Tract of Interior Commercial Property which shall be assessed,
levied, imposed or become a lien thereon.
(b) In the event an owner 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
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be paid by such owner to be excessive or illegal, such owner shall have the right, at its own cost
and expense, to contest the same by appropriate proceedings, and nothing contained in this
Section 5.2 shall require such owner 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
owner, such owner's Tract of Interior Commercial Property shall not thereby be in danger of
being forfeited.
ARTICLE VI
(~TF INTF R A I
6.1 Curing of Default. Except as expressly prohibited herein, in the event of a breach
by any owner of any terms or provisions hereof, only Declarant or any other record owner of the
Interior Commercial Property 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 an owner shall default in the performance of
any of the covenants contained in Section 2.5, Section 2.7 or Section 3.7, Declarant may, after
giving the defaulting owner twenty (20) days prior notice specifying the event of default, cure
the same and charge the cost of such curing to the defaulting owner. If Declarant shall default in
the performance of any covenant contained in Section 2.3 or Section 2.4, any owner may, after
giving Declarant 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 owner's separate
agreement with Declarant, and/or charge the cost of such curing to Declarant. 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 owner, including Declarant, commences to cure
such default within such twenty (20) day period and diligently prosecutes same to completion but
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in no event more than 120 days. Nothing herein contained shall prevent any owner, including
Declarant, from proceeding to collect any amounts expended by it in curing the other owner'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 of the
Interior Commercial Property shall have the right to cure any default under this Declaration 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 pursuant to Section 6.7 shall be furnished with copies of notices given pursuant to
this Section 6.1.
If a non -defaulting owner, including Declarant, 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 owner may act promptly without having given such
twenty (20) day notice as a condition to doing such work (but the non -defaulting owner 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
owner's business to the minimum extent possible in light of the circumstances at hand. With
reasonable promptness after so acting, the non -defaulting owner shall give notice to the
defaulting owner of the doing of such work and the claimed failure. The non -defaulting owner
shall prosecute any work performed by it under the provisions of this Section 6.1 diligently to
completion. Declarant, each owner 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.
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6.2 Transfer of Ownership or Interest.
(a) When used in this Declaration, the following capitalized terms have the meanings
stated in this Section 6.2:
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 which
is part of Interior Commercial Property or Lifestyle Center
Property securing a loan.
PERSONS) - Individuals, partnerships, limited liability
companies, firms, associations and corporations, or any other form
of legal entity.
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 any
operating covenant in any separate agreement between Declarant
and Transferor.
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
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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 6.2, in the event of a Transfer of all
or any portion of the fee of a Tract of the Interior Commercial Property, it shall be deemed and
construed that the Transferee has 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
Declaration to be performed by the Transferor with respect to such Tract of the Interior
Commercial Property; 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 which is part of the Interior Commercial Property in connection with all
terms, covenants and conditions under this Declaration binding the owner(s) of such Tract of the
Interior Commercial Property. 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
Declaration to be performed by the Transferor, and (ii) be personally liable to the other owners
for default in performance of any of the terms, covenants and conditions under this Declaration
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to be performed in respect of the Tract which is part of Interior Commercial Property being
Transferred; but 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 owners of the Tracts of Interior
Commercial Property; however, the Transferee, or its successors at such time as owner of such
Tract of Interior Commercial Property 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, covenant
or condition as to any matter which arose prior thereto), with respect to such Tract of Interior
Commercial Property 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 Declaration 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 Declaration, provided that nothing in this Declaration shall be
deemed to make the holder thereof liable for the performance of any term, covenant or condition
under this Declaration to be performed by the owner of such mortgaged Tract of Interior
Commercial Property; provided, however, that if and when title to such Tract of Interior
Commercial Property becomes vested in any Person as a result of a foreclosure under said
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Mortgage or by deed in lieu of foreclosure or the holder of the Mortgage becomes a mortgagee in
possession of such Tract of Interior Commercial Property, 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 of Interior Commercial Property is vested in it or it has become a mortgagee in possession
of such Tract of Interior Commercial Property. Neither the making of such Mortgage nor its
foreclosure shall release the maker thereof from any liability it would have had under this
Declaration 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 Declaration or cures
any default or exercises any right of self-help under said Mortgage or under law. The failure of
an owner 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 provision of this Declaration, neither mortgagee nor its successor
shall have any personal liability for any of the matters under this Declaration except to the extent
of, and mortgagee's liability shall be limited to, mortgagee's estate and interest in the applicable
Tract of Interior Commercial Property and the rent, issues and other income from such Tract of
Interior Commercial Property.
(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 of Interior Commercial Property, the Transferor shall, provided it has delivered notice
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of such Transfer to the other Owners and provided the Transferee specifically assumes in writing
the obligations of the Transferor under this Declaration 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 Declaration to be performed after the Transfer, but the
Transferor shall remain liable for all such liability in respect of events theretofore occurring and
shall remain primarily obligated under this Declaration until the date of such Transfer.
(f) Nothing in this Section 6.2 shall be construed to limit the enforcement of any
rights of a mortgagee under a Mortgage.
(g) Each Owner shall give to the mortgagee of any other Owner a notice certifying, if
true, that the other Owner is in default under this Declaration, 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 Owners. Any such notice to a mortgagee shall be given in the
same manner as provided in Section 6.7 of this Declaration. The mortgagee under any Mortgage
affecting the Tract of Interior Commercial Property of the defaulting Owner shall be entitled to
the same right, to be exercised, if at all, concurrently with such defaulting Owner, 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 Owner or Declarant so declaring a default.
6.3 Exhibits. All exhibits to this Declaration are by this reference made a part of this
Declaration to the same extent as the same would be if written directly within the body of this
Declaration.
6.4 Rights Cumulative. All rights, powers and privileges conferred hereunder shall
be cumulative and not restricted to those given by law.
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6.5 Amendment. This Declaration may not be amended except by a writing and
executed with the formalities required at the execution of this Declaration. This Declaration may
be terminated, modified or amended only by the written consent of (a) Declarant, and (b) the
owners of the Interior Commercial Property. If any owner acquires, transfers or conveys its
interest in its Tract of Interior Commercial Property 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 or enforcement of this Agreement, which designation Declarant is entitled to rely
upon until notice of a new designation signed by all such owners or an order of a court of
competent jurisdiction is received by Declarant to the contrary; provided, however, all such
Owners of fractional interests are jointly and severally liable under this Agreement. If the owner
of any Tract of the Interior Commercial Property acquires, transfers or conveys its interest in any
Tract of Interior Commercial Property in such manner as to vest ownership of fractionalized
interest in more than one Person, then the Declarant shall designate one owner to act on behalf of
all such owners in the performance or enforcement of this agreement which designation all of the
owners are entitled to rely upon such designation until notice of a new designation signed by
Declarant or all such owners all Tracts of the Interior Commercial Property or an order of a court
of competent jurisdiction is received by the Declarant and all owners to the contrary.
6.6 Applicable Law. This Declaration shall be governed and construed in accordance
with the law of the State of Montana. If any provision of this Declaration shall, to any extent, be
invalid under such law, the remaining provisions of this Declaration shall not be affected
thereby. The titles of the various subdivisions of this Declaration are for convenience only and
shall not be considered in construing this Declaration.
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6.7 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 party giving such
notice has been notified, in writing of a change of address:
If to Declarant: Wolford Development Montana, LLC
Four Squares Business Center
1200 Mountain Creek Road, Suite 102
Chattanooga, Tennessee 37405
Attn: R. Chad Wolford
Facsimile: (423) 874-0748
with a copy to:
with a copy to:
If to the Owner
of a Tract
with a copy to:
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Any owner may change the place for serving of notices upon it by ten (10) days' prior
written notice informing the other owners 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.
6.8 Heirs and Assigns. All the terms, conditions and provisions of this Declaration
shall extend to and be binding upon each Owner and their respective heirs, executors,
administrators, and permitted successors and assigns who become Owners,
6.9 Time of Essence. Time is of the essence in the performance of the terms and
conditions of this Declaration.
6.10 Superiority of Declaration. This Declaration 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 Entire Premises. Each Owner shall cause any mortgage or deed of trust holder
which has recorded a lien on its Tract prior to the recordation of this Declaration to record a
subordination agreement acknowledging that such lien is subordinate to this Declaration
6.11 No Joint Venture. Nothing contained in this Declaration shall be construed to
create the relationship of partners or joint venturers or to render any Owner liable for the debts or
obligations of any other Owner, except as this Declaration may expressly provide.
6.12 No Third Party Beneficiary. Except as expressly provided in Section 6.8, this
Declaration shall in no way constitute or create rights in persons, firms or entities not parties
hereto or create obligations or responsibilities to such third persons not parties hereto. This
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Declaration is not intended to and shall not be construed to dedicate any rights or easements to
the general public.
6.13 Conflicts.
(a) Where any irreconcilable conflict appears between the terms and conditions of
this Declaration and the provisions or illustrations of any Exhibit forming a part of this
Declaration, the terms of this Declaration shall control.
(b) The terms and provisions of this Declaration which create and establish rights and
obligations as between Declarant and an Owner supplement the terms and provisions of each
Owners' respective separate agreements with Declarant, and the terms and provisions of such
separate agreements, as between the parties thereto, shall control if in conflict with provisions of
this Declaration.
6.14 No Termination of Agreement. Except as herein expressly provided, no breach of
this Declaration or default by Declarant or any Owner shall entitle any such Owner to terminate
or cancel this Declaration.
6.15 Covenants Running With the Land. Except as herein otherwise expressly
provided, all covenants, conditions, restrictions and agreements contained herein binding and
benefiting the Owners 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 of Interior
Commercial Property, such covenant, condition or agreement shall be deemed to have been
made by the fee owner of such Tract of Interior Commercial Property unless otherwise provided
herein.
6.16 Compatible Uses. Each Tract of Interior Commercial Property shall be used for
lawful purposes in conformance with this Declaration and with all restrictions imposed by
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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 of Interior
Commercial Property which is illegal. No Tract of Interior Commercial Property or portion of
any Tract of Interior Commercial Property shall be used for any of the uses described on Exhibit
"D" attached hereto and incorporated herein.
6.17 Assignment of Declarant Rights. By recorded instrument, Declarant may assign
all of its rights, title and interest as "Declarant" to any other Person, provided further that such
assignment is signed by both assignor and assignee. Notwithstanding the provisions of
Section 6.8, no conveyance by Declarant of any Tract of Interior Commercial Property shall
result in an assignment of Declarant's rights, titles and interests as "Declarant" in absence of an
express provision to that effect. No Person may be the Declarant unless such Person is an owner
of all or any portion of the Lifestyle Center Property. No succeeding Declarant may terminate,
rescind or revoke any rights or consents previously granted by Declarant to a Person, including
any owner or Permittee, without the express consent of such Person.
6.18 No Damage or Destruction. If any buildings or other improvements on any Tract
shall be damaged or destroyed, either in whole or in part, and the Owner of such Tract of Interior
Commercial Property does not repair or rebuild such buildings or other improvements, such
owner shall (i) raze, or cause to be razed, the portions thereof which are not to be restored or
rebuilt, (ii) remove, or cause to be removed, all debris, and (iii) take, or cause to be taken, all
other action required by good construction practice in order to give the area previously occupied
by such razed improvements an attractive appearance and so as to enable such area to be
maintained in a good, clean, and orderly condition.
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6.19 Buildings Harmonious With Design. All buildings and improvements constructed
on the Tracts of Interior Commercial Property shall be in harmonious design with the other
buildings and improvements in the Shopping Center. The Owner of any Tract of Interior
Commercial Property shall submit architectural elevations to Declarant forty-five (45) days prior
to the commencement of construction of any improvements on such Tract for Declarant' s
determination of whether such buildings, as constructed, will be in harmonious design with the
Shopping Center. Such determination shall be made within thirty (30) days after the submitting
of such plans and specifications.
INTERIOR
COMMERCIAL
PROPERTY
AFFILIATE:
COMMON AREA:
ARTICLE VII
DEFINITIONS
The property designated as the "Interior Commercial Property"
on the Plot Plan and more particularly described on Exhibit
«C99
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).
The areas described in Section 2.1.
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DECLARANT: Wolford Development Montana, LLC, a Montana limited
liability company and the assignee of Declarant's rights and
powers under this Declaration pursuant to a recorded
instrument reflecting such assignment of rights as required by
the provisions of Section 6.17.
DECLARATION: This Declaration of Easements, Covenants, Conditions and
Restrictions, as the same may be amended or modified from
time to time.
ENTIRE PREMISES: The property referenced in Paragraph F of the Recitals on the
first page of this Declaration.
MORTGAGE: A mortgage, deed of trust, deed to secure debt, security deed
or other instrument recorded against any Tract of Interior
Commercial Property within the Entire Premises 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 on a
Tract of the Interior Commercial Property or the Lifestyle
Center Property or (ii) owning a Tract of the Interior
Commercial Property or the Lifestyle Center Property.
OWNER: The Person who executed this Declaration and any and all
successors or assigns of such Person as the Owner or Owners
of fee simple title to all or any portion of a Tract of the Interior
Commercial Property or the Lifestyle Center Property,
whether by sale, assignment, inheritance, operation of law,
trustee's sale, foreclosure or otherwise, for the duration of such
Owner's fee ownership of the Property. The term "Owner"
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shall not include the holder of any monetary lien or monetary
encumbrance on an Owner's Tract of Interior Commercial
Property or Lifestyle Center Property unless and until such
holder acquire fee simple title to such Owner's Tract of
Interior Commercial Property or Lifestyle Center Property and
shall not include a lessee of such Owner's Tract of Interior
Commercial Property or Lifestyle Center Property.
PERMITTEES: As defined in Section
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 Declaration and attached as Exhibit "C".
SALE AND A Transfer in which the Transferor, or an Affiliate thereof,
LEASEBACK:
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 any operating covenant contained in any
separate agreement with such Transferor.
TERMINATION The date set forth in Section 4.1.
DATE:
TRACT: Each of the Tracts within the Interior Commercial Property.
Each of such Tracts shall be a separate Tract for purposes of
this Declaration.
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TRANSFER: A sale, assignment, grant or other conveyance (other than a
condemnation) of all or any portion of the fee of a Tract or the
Lifestyle Center Property (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.
[SIGNATURE ON FOLLOWING PAGE]
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IN WITNESS WHEREOF, Declarant has executed this Declaration as of the date first
written above.
WOLFORD DEVELOPMENT MONTANA,
LLC, a Montana limited liability company
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 WOLFORD
DEVELOPMENT MONTANA, LLC, the within -named bargainor, an Arizona 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:
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EXHIBIT "A"
[Description of Lifestyle Center Property]
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EXHIBIT "B"
[Description of Interior Commercial Property]
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EXHIBIT "C"
[Plot Plan]
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EXHIBIT "D"
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;
1
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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. Tattoo establishment;
20. Body -piercing establishment;
21. 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;
22. An auditorium or other general place of assembly;
23. Concrete or cement products manufacturing;
24. Foster home or group foster home;
25. Facility devoted to (with a primary purpose of) hatching, raising, breeding and
marketing animals (but excluding any pet store);
26. Feeder lot for horses, cattle, goats or sheep;
27. Farm;
28. Bail bond company;
29. Body and fender shop;
30. Cannery, slaughter house or meat processing or packaging plant;
31. Cesspool service;
32. Flour or grain elevator;
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33. Motor vehicle fuel distribution facility;
34. Outdoor hay and straw storage;
35. Massage establishment (except for massage services offered by a health club, fitness
center, day spa, beauty salon, beauty parlor, barber shop, nurse or chiropractor);
36. Repair and rewinding of transformers or generators;
37. Welding shop;
38. Wrecking yard or j unkyard;
39. Shelter or dormitory intended to provide temporary shelter;
40. Carnival (but this shall not prohibit promotional events in the Common Areas);
41. Dumping or disposal of garbage or refuse (except as may be incidental to an
otherwise permitted use);
42. Flea market;
43. Booths for the sale of fireworks;
44. A cemetery, crematorium, funeral home, funeral parlor, or facility for the sale of
caskets;
45. 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;
46. 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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