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HomeMy WebLinkAbout2003-09-11 WC Document 3372027 Declartaion of Reciprocal Easement & Operating Agreement SIFT are-g - $i.4 0,,oVIA meArc,+ P0,4,4-71.-u) Office of the County Recorder Washington County,MN Certified filed andlor recorded on: 2003/09/11 3:03:00 PM 3372027 I'!rrr'. Cindy kooemenn * County Recorder ENIFEREDINJRUMFEIHIBOORD WASHINGTON C UNTY,MINNESOTA N 3372027 MOLLYF/'kO l 03 AUDITOR-TREASURER 1111011 11111111 DY l DECLARATION OF RECEIVED OCT 1 9 2021 RECIPROCAL EASEMENT AND OPERATING AGREEMENT THIS DECLARATION OF RECIPROCAL EASEMENT AND OPERATING AGREEMENT, (hereinafter "REA"), made and entered into as of the Zg day of ({u 200 3 , by The Shoppes of Oak Park Heights, LLC,a Minnesota limited liability co pany("Declarant"),with an address of Amcon,200 W. Highway 13, Burnsville, MN 55337. WITNESSETH: WHEREAS, Declarant is the owner in fee simple of a Tract of land located in the City of Oak Park Heights, County of Washington, State of Minnesota, which land is described on Exhibit A attached hereto and by this reference made a part hereof(the"Shopping Center")and shown upon the site plans attached hereto as Exhibit B and Exhibit B-1, and by this reference made a part hereof(The site plan selected by Declarant from the two possible alternatives shall be referred to herein as the"Site Plan".); and WHEREAS, Declarant desires to make integrated use of the Shopping Center and to develop and improve the Shopping Center; and WHEREAS,each Tract(as hereinafter defined)may be subdivided and each subdivided Tract shall be deemed to be burdened and benefited by the terms of this REA, subject to the provisions in Article II hereof;and WHEREAS, Declarant desires to establish for the benefit of the "Occupants" (as hereinafter defined) of the Shopping Center certain nonexclusive easements in, to, over and across the Shopping Center;and WHEREAS, Declarant desires to make certain other covenants and agreements as more specifically set forth herein. NOW, THEREFORE, in consideration of the foregoing, and the covenants and declarations,as hereinafter set forth, IT IS AGREED as follows: ARTICLE I DEFINITIONS As used hereinafter in this REA, the following terms shall have the following respective meanings: A. ACCESS DRIVES. Those drives or future drives designated on the Site Plan are referred to herein collectively and singly as"Access Drives". B. ACCOUNTING PERIOD. The term "Accounting Period" refers to any period commencing January 1 and ending on the next following December 31. Any portion or portions of the"Common Area Expenses"(as defined in subparagraph D below) relating to a period of time only part of which is included within the first or last Accounting Period hereto shall be prorated on a daily basis as respects such Party. C. COMMON AREA. The term "Common Area" refers to and means all those portions of the Shopping Center which shall be designated and improved for common use, including, without being limited to, all parking areas; access roads; sidewalks; passageways; landscaped areas; statuary and other works of art; malls, ramps, walks and arcades; and the like; but excluding portions of the Shopping Center which are used or intended for use by only one Occupant and its employees, agents, customers, invitees and licensees. D. COMMON AREA EXPENSES. The term "Common Area Expenses" refers to and means all reasonable costs and expenses of every kind and nature actually paid or incurred by "Operator" (as defined in subparagraph L below) or its designees in connection with the following: 1. the management,operation,replacement, maintenance, repair, redecorating and refurbishing of the Common Area of the "Declarant Tract" (as defined in subparagraph E of this Section); 2. conforming with rules and regulations of authorities having jurisdiction over the Common Area of the Declarant Tract; 3. the supply by Operator of electricity and other utilities and services to the Common Area of the Declarant Tract; 4. the compensation of security and other personnel who implement the aforesaid management, maintenance, security, operation, replacement, etc. of the Common Area of the Declarant Tract and related costs; 5. the maintenance of liability insurance and casualty insurance covering the Common Area of the Declarant Tract; 6. the maintenance, repair and replacement (except to the extent of Operator's receipt of the proceeds of insurance therefor) of all common facilities of the Declarant Tract not already provided for herein;and 7. all other direct costs and expenses of every kind and nature, foreseeable or unforeseeable, required or desired, suggested or recommended for the operation, maintenance or otherwise with respect to the Common Area of the Declarant Tract in a manner reasonably deemed by Operator (exercised in accordance with sound shopping center management practice consistent with the operation and management of first class community shopping centers in the Detroit metropolitan area)to be appropriate for the best interests of the Declarant Tract. In addition, Common Area Expenses shall include an administrative fee of five percent (5%)of all costs set forth in the foregoing subparagraphs(1-7), excluding subparagraph (5), to cover Operator's administrative and overhead costs. Notwithstanding the foregoing, excepting with respect to the Kohl's Tract, Declarant may, via the terms of a lease agreement between Declarant and an Occupant, obligate any such Occupant to pay for additional Common Area Expenses, including any administrative or management fees in excess of the five percent(5%)as set forth in the preceding sentence. Common Area Expenses shall be determined by Operator in accordance with generally accepted accounting principles. E. DECLARANT TRACT. The term "Declarant Tract" refers to and means the portion of the Shopping Center legally described on Exhibit A-1 and designated on the Site Plan as the"Declarant Tract". F. EFFECTIVE DATE. The term "Effective Date" refers to and means the date that this REA shall become effective, which date shall be the day that this REA has been executed and recorded in Washington County,Minnesota. G. FLOOR AREA. The term"Floor Area"refers to and means with respect to any building or structure within the Shopping Center, whether or not actually occupied, the actual number cf square feet of floor space within the exterior walls of all floors, measured to the center lines of all common walls and to the exterior of all non-common walls, including any basements used for retail sales, and including stairs, interior elevators, escalators, air conditioning and other interior equipment rooms; but excluding: (i) loading docks and platforms, transformer vaults, utility or mechanical penthouses or utility and trash enclosures located outside of the exterior walls of the building serviced thereby; (ii) patio or outside selling areas which are not heated or air conditioned; (iii) any mezzanine space; and (iv) any basement space not used for retail sales. Upon written request from a Party,each Party shall deliver to such Party a certification from an architect duly licensed in Minnesota certifying the exact Floor Area of all buildings on the requested Party's Tract. H. IN-LINE SHOPPING CENTER. The term "In-Line Shopping Center" refers to and means the Declarant Tract and the Kohl's Tract collectively. I. KOHL'S TRACT. The term "Kohl's Tract" refers to and means the portion of the Shopping Center legally described on Exhibit A-2 and designated on the Site Plan as the "Kohl's Tract". J. MORTGAGEE AND MORTGAGE. The term "Mortgagee" refers to and shall include a mortgagee, trustee and beneficiary under any deed of trust or mortgage, and the term "Mortgage" shall include any indenture of mortgage, deed of trust, and to the extent applicable, a sale and lease back transaction. K. OCCUPANT. The term "Occupant" refers to and means any Person from time to time entitled to the use and occupancy of Floor Area in the Shopping Center under any lease, deed, agreement to purchase or other similar instrument whereunder such Person has acquired rights with respect to the use and occupancy of any Floor Area. L. OPERATOR. The term"Operator" refers to and means the Party that owns the largest Tract within the Declarant Tract. M. OUTLOTS. The term"Outlots"refers to and means the portions of the Shopping Center legally described on Exhibit A-3 and designated on the Site Plan as"Outlots". N. PARTY OR PARTIES. The term "Party" or"Parties" refers to and means the owner of fee simple title from time to time of the Shopping Center or any portion thereof; provided, however, in the event of the sale by an owner of all or a portion of a Tract and a simultaneous leaseback of the Tract or portions thereof (a "sale/leaseback"), the seller/lessee under such sale/leaseback shall be deemed to be a "Party" for the purposes of this REA, unless otherwise designated in the sale/leaseback lease. O. PERMITTEES. The term "Permittees" refers to and means all Occupants and their respective officers, directors, partners, employees, agents, contractors, customers, visitors, invitees, licensees,subtenants and concessionaires. P. PERSON. The word "Person" refers to and shall include individuals, partnerships, limited liability companies, firms, associations and corporations, or any other form of business or government entity,and the use of the singular shall include the plural. Q. PRO RATA SHARE. The term "Pro Rata Share" refers to and means with respect to each Party owning a Tract in the Declarant Tract,a fraction,the numerator of which shall be the Floor Area of all buildings in such Party's Tract and the denominator of which shall be the total Floor Area of all buildings in the Declarant Tract. R. TRACT. The term "Tract" refers to and means the tract of land within the Shopping Center owned by a Party. ARTICLE II EASEMENTS A. NONEXCLUSIVE EASEMENTS FOR INGRESS AND EGRESS AND INCIDENTAL USES. 1. IN-LINE SHOPPING CENTER COMMON AREA. Declarant for itself and on behalf of any future Parties owning Tracts within the In-Line Shopping Center hereby declares and reserves for each of the other Parties owning Tracts within the In-Line Shopping Center, for their respective use, and for the use of their respective Permittees, in common with all others entitled to use the same, mutual, reciprocal and perpetual non-exclusive easements over the Common Area of the In-Line Shopping Center,for ingress into and egress for the passage of vehicles, and for passage and accommodation of pedestrians, on such respective portions of such Common Area as are set aside, maintained and authorized for such use pursuant to the terms of this REA, for the doing of such other things as are authorized or required to be done on said Common Area pursuant to this REA and for parking on said Common Area. Truck traffic shall be restricted to those areas designated for truck traffic. 2. ACCESS DRIVE EASEMENT. Declarant for itself and on behalf of future Parties and their Permittees, hereby declares and reserves mutual, reciprocal and non-exclusive easements over the Access Drives for the passage of vehicles, and for passage and accommodation of pedestrians within the Shopping Center. Subject only to temporary closures permitted under this REA, no Party,except as Permitted under this REA,shall change the location of the Access Drives without the consent of the other Parties, and except for temporary closures permitted under this REA, or otherwise permitted under this REA, no Party shall erect or permit any barrier or obstacle to exist prohibiting or inhibiting the free flow of pedestrian and vehicular traffic within the Shopping Center across the Access Drives or Common Area. 3. RIGHT TO CLOSE OFF COMMON AREA. Declarant for itself and on behalf of future Parties hereby declares and reserves the right to eject or cause the ejection from their respective portions of the Common Area of the Shopping Center any Person or Persons not authorized, empowered or privileged to use the Common Area of the Shopping Center. Notwithstanding the foregoing, the Parties hereto reserve the right to close off their respective portions of the Common Area of the Shopping Center for such reasonable period or periods of time as: (i) may be legally necessary to prevent the acquisition of prescriptive rights by anyone; and (ii) may be reasonably necessary for construction, repairs and/or maintenance; provided,however,that prior to closing off any portion of the Common Area of the Shopping Center, as herein provided, such Party shall give written notice to each other Party owning a Tract within the Shopping Center of its intention so to do, and shall coordinate such closing with all other Parties so that no unreasonable interference with the operation of the Shopping Center shall occur; and (iii) may be necessary for initial construction of the Common Area and improvements on the Shopping Center. Notwithstanding the reservation herein provided for, and the right to grant easements, it is expressly understood and agreed that such reservation and the right to grant easements is limited to nonexclusive use of the surface. Upon the opening of a store for business in the Shopping Center, the Common Areas in the Shopping Center cannot be closed except as provided for in(i), (ii)and(iii)herein. B. NONEXCLUSIVE EASEMENT FOR UTILITIES. 1. UTILITY EASEMENTS. Declarant for itself and on behalf of future Parties hereto, hereby declares and reserves the right to grant to others, nonexclusive easements in, to, over, under and across the Common Area of the Shopping Center for the installation, operation, flow and passage, use, maintenance, repair, relocation and removal of sanitary sewers, storm drains, water and gas mains, electrical power lines, telephone lines and other utility lines, all of such sewers,drains, mains and lines to be underground,serving the Shopping Center, for the service of Common Area and for use in common with other Parties. 2. LOCATION OF UTILITY EASEMENTS. Upon completion of construction of such utility facilities, at the request of a Party, the Parties shall join in the execution of an agreement, in recordable form, appropriately identifying the type and location of such respective utility facility and/or granting any required easement to a utility company or authority. The location of all easements built subsequent to the initial construction of the Shopping Center shall be subject to the prior written approval of the Party in, to, over and under whose Tract the same is to be located. After the initial construction of improvements in the In-Line Shopping Center, no construction activities except the construction or remodeling of interior space shall be performed in the In-Line Shopping Center pursuant to this subparagraph 2 during the months of October, November and December without the prior written approval of the owner of the Kohl's Tract. 3. USE OF UTILITY EASEMENT. The grantee of any utility easement shall be responsible as between grantor and grantee thereof for the installation, maintenance and repair of all utility facilities pursuant to such grant. 4. RELOCATION OF UTILITY LINES. At any time the grantor of any of the utility easements shall have the right to relocate on the land of the grantor any such utility facilities then located on grantor's land provided that such relocation shall be performed only after thirty (30) days notice of the grantor's intention to so relocate shall be given to grantee and any Occupant affected by such relocation and such relocation: (i) shall not interfere with or diminish the utility services to the grantee; (ii) shall not reduce or unreasonably impair the usefulness or function as such utility; and (iii) shall be performed at no cost to grantee. Grantee will continue to be obligated for maintenance of said relocated utility facilities; provided, however, grantor shall bear any additional maintenance expense incurred solely as a result of said relocation. C. SHOPPING CENTER SIGNS. The Parties owning Tracts within the Shopping Center are hereby granted the right and easement to place an identification sign on the Shopping Center pylon signs(hereinafter"Shopping Center Pylon Signs")over and upon those portions of the Shopping Center as shown on the Site Plan attached hereto and made a part hereof. In consideration for such grant, Declarant agrees that such pylon signs shall meet the requirements of the City of Oak Park Heights. The Occupant of the Kohl's Tract shall be entitled to place its identification signage in the primary position on the Shopping Center Pylon Signs. Operator shall determine whether any other Occupant of the Shopping Center shall be entitled to place an identification sign on the Shopping Center Pylon Signs. The Shopping Center Pylon Signs shall be operated, illuminated, maintained, repaired and replaced by the Operator and each Occupant having a panel on the Shopping Center Pylon Sign(s) shall pay to the Operator its pro rata share of the cost of construction, operation, illumination, maintenance, repairs and replacements within thirty(30)days of receipt of an invoice. For the purposes of this Section, an Occupant's"pro rata"share shall be determined by multiplying the aforementioned costs by a fraction, the numerator of which shall be the number of square feet of sign area for such Occupant's sign panel,and the denominator of which shall be the total number of square feet of all Occupant sign panels available on the applicable Shopping Center Pylon Sign. Each Occupant of the Shopping Center having an identification panel on a Shopping Center Pylon Sign shall be responsible for installing its own identification sign panel and maintaining its own sign panel in good condition. The Shopping Center Pylon Signs cannot be moved, relocated, razed, substantially altered or removed without the prior written consent of the Party owning the Kohl's Tract, except to the extent that the sign is required to be removed or relocated to comply with the requirements or as a result of action(s)of a governmental agency having jurisdiction over the Shopping Center. Provided it does not preclude the installation of either of the Shopping Center Pylon Signs,each Outlot may have a monument sign to identify one(1)Occupant of the Outlot Tract. Alternatively,one(1)monument sign shall be permitted on the Outlot designated on the Site Plan as"Outlot 1"or"Outlot 2"which may be used to identify the Occupants thereof, and/or one (1) monument sign shall be permitted on the Outlot designated on the Site Plan as "Outlot 3" or"Outlot 4" which may be used to identify the Occupants thereof. No Outlot monument sign shall exceed eight(8)feet in height. No sign, symbol or advertisement shall be placed or maintained on or adjacent to the exterior walls(including both interior and exterior surfaces of windows)of,or above,any store in the Shopping Center, except signs complying with a general sign criteria attached hereto as Exhibit C. D. STORM DRAINAGE. Declarant for itself and on behalf of future Parties hereby declares and reserves the perpetual right and easement to discharge surface storm drainage and/or runoff under, over, upon and across the Common Area, provided that no Party shall alter or permit to be altered the surface of the Common Area or the drainage/retention system constructed on its Tract if such alteration would materially increase the flow of surface water onto any adjacent Tract either in the aggregate or by directing the flow of surface water to a limited area. E. DOMINANT AND SERVIENT ESTATES. Each easement granted pursuant to the provisions hereof is expressly for the benefit of the Tract of the grantee,and the Tract so benefited shall be the dominant estate and the Tract upon which such easement is located shall be the servient estate, but where only a portion thereof is bound and burdened, or benefited by a particular easement, only that portion so bound and burdened, or benefited, as the case may be, shall be deemed to be the servient or dominant tenement, as the case may be. Any easement granted pursuant to the provisions of this Article II may be abandoned or terminated by execution of an agreement so abandoning or terminating the same, by the owners of the dominant and servient estates, and receipt of any necessary consents from respective Mortgagees. Notwithstanding the foregoing,a Party may subdivide its Tract, subject to the provisions of this REA, which subdivision shall not be deemed to increase the burden on the servient estate. ARTICLE III CONSTRUCTION OF IMPROVEMENTS A. BARRIERS AND TRAFFIC CONTROL. Except for temporary obstructions, as permitted under Article II, those identified on the Site Plan, if any, and those required by governmental regulations, no walls, fences or barriers of any sort or kind shall be constructed or maintained in the Common Areas of the Shopping Center,or any portion thereof, which shall prevent or impair the use or exercise of any of the easements granted herein; provided, however, reasonable traffic controls as may be necessary to guide and control the orderly flow of traffic may be installed so long as the traffic circulation pattern of the Common Areas is not changed or affected in any way unless the prior written approval of the Parties is first obtained. Nothing herein in this agreement (including without limitation the easements granted in Article II) shall be deemed otherwise to restrict the ability of the Party owning a Tract or the Occupant thereof from constructing expansions to its building or additional buildings or reconstructing and reconfiguring the Common Area on its Tract for so long as the Access Drives are not relocated and the traffic circulation pattern of the Common Areas is not changed or affected in any way unless the prior written approval of the Parties is first obtained. B. Although no Party shall have an obligation to commence construction of any building on its Tract, once construction of a building has been commenced, such building shall be completed. Buildings may be constructed only within the "Permissible Building Areas" shown on the Site Plan. ARTICLE IV OPERATION AND MAINTENANCE OF COMMON AREA A. COMMON AREA - STANDARDS. From and after the date of the completion of construction of the Common Area on its Tract,the Party owning such Tract shall operate and maintain or cause to be operated and maintained the Common Area on its Tract in good order, condition and repair. Without limiting the generality of the foregoing, each Party, in the maintenance of the Common Area on its Tract, shall maintain its Tract in first class condition and shall observe the following: 1. Maintain the surface of the parking area and sidewalks level, smooth and evenly covered with the type of surfacing material originally installed thereon, or such substitute thereof as shall be in all respects equal thereto in quality, appearance, and durability. 2. Remove all papers, debris, filth and refuse from the Common Area and wash or thoroughly sweep paved areas as required. 3. Maintain in good condition and repair, any parking area entrance, exit and directional signs, markers and lights in the Common Area installed by respective Parties within the Common Area. 4. Repaint striping, markers, directional signs, etc., as necessary to maintain the Common Area in first-class condition. 5. Maintain landscaping as necessary to keep the Common Area in a first-class condition. 6. Remove snow and ice when and if necessary. 7. Seal coat any surface paving whenever necessary. 8. Providing adequate security in and for the Common Areas, maintaining suitable and adequate lighting on all Common Areas (and keeping same lighted during, and for at least one-half hour after the business hours of the largest Occupant of the Kohl's Tract). 9. Repaving the parking lot not more than once every eight(8)years. B. RESPONSIBILITY FOR MAINTENANCE. Notwithstanding the foregoing, the Operator shall be responsible for the operation, maintenance and repair of the Common Area of the Declarant Tract. C. GOVERNMENTAL REGULATIONS. Each Party shall comply with all laws, rules, regulations and requirements of all public authorities with respect to the use and operation of its Tract and shall indemnify, defend and hold each other Party harmless against all claims, demands, losses, damages, liabilities and expenses and all suits, actions and judgments (including, but not limited to, costs and reasonable attorney's fees) arising or accruing from such Party's use, occupation, maintenance, act or omission on or related to such other Party's Tract. The Parties against whom a claim is made or a suit or action commenced, shall give prompt and timely notice of any such claim, suit or action to the Party who is required to indemnify under this REA. D. CASUALTY INSURANCE. Each Party shall at all times cause all buildings situated on such Party's Tract to be insured against loss or damage by fire, lightening, and such other risks as are from time to time included in "extended coverage" or "special form" endorsements in the State of Minnesota, in an amount and form so that the proceeds thereof are sufficient to provide for actual replacement in full of such buildings (said amount may exclude foundation and excavation costs and costs of underground flues, pipes and drains),as part of one or more policies of insurance. E. LIABILITY INSURANCE. Each Party shall maintain or cause to be maintained commercial general liability insurance against claims for contractual liability as well as personal injury or death and property damage occurring upon, in or about such Party's Tract, such insurance in each case to afford protection to the limit of not less than $3,000,000 for combined single limit for personal injuries, including bodily injury or death (which limit may be included in an excess lines policy), and property damage to any number of persons arising out of any one occurrence. Notwithstanding the foregoing, the Operator shall maintain or cause to be maintained the liability insurance required herein for the Common Area of the Declarant Tract, but shall not be responsible for maintaining insurance required herein for any other Party. F. REQUIREMENTS FOR INSURANCE. All insurance required to maintained under this Article IV shall be effected under valid and enforceable policies issued by insurers of recognized responsibility with a minimum A. M. Best Company, Inc. (or any successor rating organization) general policyholder's Rating of A-:X or better, which may contain a deductible of no more than $10,000.00 per occurrence and shall be primary and noncontributing. Each Party shall provide self-insurance for any deductible. Any insurance required to be maintained by a Party may be taken out under a blanket insurance policy or policies covering other premises, property or insureds, provided such policy or policies otherwise comply with this Article IV and shall provide for a minimum limit available to the Shopping Center equal to the insurance amounts required in this REA. Certificates of insurance shall be delivered to each Party and its mortgagee upon request. Any insurance required to be maintained by a Party may be self-insured in whole or in part if such Party shall then have and thereafter maintain a net worth of at least One Hundred Million Dollars ($100,000,000.00), or may be taken out under a blanket insurance policy or policies covering other premises, property or insureds, provided such policy or policies otherwise comply with this Article IV. If a Party is permitted to self-insure, the other Parties shall have all the benefits provided in this Article IV that they would have if such Party carried the required insurance with no deductible. In the case of self-insurance a certificate stating the self-insuring Party has elected to self-insure, and if the information is not publicly available, an affidavit of net worth signed by an officer of the Person providing the self-insurance, as the case may be, shall be delivered to each Party and its Mortgagee upon request. Any liability insurance required to be maintained by a Party hereunder shall name the other Parties and their Mortgagees as additional insureds as their respective interests may appear. Any policy required under this Article shall provide that such policy shall not be canceled or materially changed without at least thirty (30) days prior written notice to each other Party and its Mortgagee. G. INDEMNIFICATION. Each Party shall defend, indemnify and save each other Party (and its Occupants)harmless from all injury, loss, claim or damage (including attorneys' fees and disbursements incurred by the indemnified Person in conducting an investigation and preparing for and conducting a defense) to any person or property arising from, related to, or in any way connected with the use or occupancy of the indemnifying Party's Tract, unless such injury, loss,claim or damage is attributable to the negligence or intentional act of the indemnified Person or its agents, servants or employees. H. WAIVER OF SUBROGATION. Anything in this REA to the contrary notwithstanding, and to the extent such waiver in no way limits or voids a Party's insurance coverage, each Party, on behalf of itself and its Occupants, hereby waives any and all rights of recovery, claim, action or cause of action, against the other Parties, their respective Occupants, and their respective agents (including partners, both general and limited), officers,directors, shareholders or employees,for any loss or damage that may occur to the Tract of such Party, or any improvements thereto, or the Shopping Center, or any improvements thereto, or any property of such Party therein, by reason of fire, the elements, or any other cause which is insured against (or would have been insured against but for the self-insurance provisions hereof) under the terms of standard fire and extended coverage insurance policies with "special form" endorsements regardless of cause or origin, including negligence of the other party hereto, its agents, officers or employees, and covenants that no insurer shall hold any right of subrogation against such other Party. CONSTRUCTION DISRUPTION. Any construction, maintenance, repair and/or reconstruction on a Tract shall be done in such a manner as to cause as little disturbance in the use of the Shopping Center as is practical under the circumstances. J. REAL ESTATE TAXES. Each Party shall pay or cause to be paid all real property taxes, other special taxes and assessments levied against its Tract, and the buildings and improvements thereon (herein called "Taxes"). Each Party may contest at its own expense the existence, amount or validity of any Taxes levied upon its Tract, by appropriate proceedings: (i) which shall prevent the collection of or other realization upon the Taxes so contested; and (ii) which shall prevent the sale, forfeiture or loss of the Tract,to satisfy the same. The other Parties,at the expense of the contesting Party, shall cooperate with the contesting Party and execute any documents or pleadings legally required or necessary for any such contest. The contesting Party shall indemnify and hold the other Parties harmless from any loss, cost or damage suffered by the other Parties as a direct result of any such challenge or contest by the contesting Party. K. RECONSTRUCTION AFTER DESTRUCTION. In the event that any building located in the Shopping Center shall be damaged or destroyed (partially or totally) by fire, the elements or any other casualty, the owner of the Tract upon which such building is located, to the extent said proceeds are available pursuant to any underlying mortgage, shall promptly,with due diligence,repair, rebuild and restore such building to a complete architectural unit or alternatively,said Party shall be required to clear,clean and raze the damaged building and to seed and maintain its Tract, in a neat and clean condition including mowing grass as reasonably required. Each Party agrees to use best efforts to cause its mortgagee to allow for the use of insurance proceeds to repair, rebuild and/or restore such Party's building following any casualty. In the event said Party fails to either commence to restore or raze the damaged building (pursuant to the preceding paragraph)within one hundred fifty(150) days of the date of said casualty and diligently prosecute said work or to seed or maintain its Tract, as aforesaid, the other Parties shall have the right to commence an action at law or in equity to enforce the provisions of this REA but shall have no other rights or remedies for such default under this REA. L. COMMON AREA CHARGE. The owner of each Tract in the Declarant Tract shall pay to the Operator an annual charge representing its contribution to the cost of the maintenance and operation of the Common Area of the Declarant Tract. Such annual charge(hereinafter called the"Common Area Charge")shall be computed by multiplying the Common Area Expenses in each calendar year by such Party's Pro Rata Share. From time to time during the Term, the Operator shall estimate the Common Area Charge for the remainder of the applicable calendar year and each Party owning a Tract in the Declarant Tract shall pay the estimated amount to the Operator in equal monthly installments over the remaining portion of the calendar year. Within a reasonable period of time after the expiration of each calendar year, the Operator shall notify each Party owning a Tract in the Declarant Tract of the actual Common Area Charge due from such Party for such calendar year and such statement shall be binding upon the Operator and such Party. If the Common Area Charge for such calendar year shall be more than the estimated payments made by such Party, such Party shall pay the difference to the Operator within thirty (30) days after such Party's receipt of the Operator's statement of the Common Area Charge. If the Common Area Charge for the applicable calendar year is less than the estimated payments paid by such Party for such calendar year, the Operator shall promptly refund to such Party an amount equal to the difference between the estimated payments made by such Party and the actual Common Area Charge. Operator's and each Party's obligations with respect to this Paragraph shall survive the termination of their interest in the Declarant Tract. In the event any portion of the amount billed is not paid within fourteen (14)days after a bill becomes due a late fee of five (5%) percent of the amount due may be charged by Operator and shall be immediately due with the payment of the delinquent bill. Upon written request, Operator shall submit to a Party, copies of paid receipts to support each said item and amount. M. OUTLOT CONTRIBUTION. As used in this REA, the term "Outlot Contribution" shall mean the sum of Two Thousand Dollars ($2,000) per year per Outlot. The Outlot Contribution shall be increased by ten percent(10%) on January 1, 2010 and shall be increased by ten percent(10%) every five(5) years thereafter. It is acknowledged that the owner of the Kohl's Tract and/or the Operator will perform maintenance in the Common Area of the In-Line Shopping Center that will be of benefit to the owners of the Outlots(e.g., maintenance of Access Drives). In order to compensate the owners of the In-Line Shopping Center for the cost of such maintenance, the owner of each Outlot shall pay the Outlot Contribution to the Operator, in advance, on or before February 1 of each calendar year. The Operator shall remit to the owner of the Kohl's Tract one-half (1/2) of the Outlot Contribution received by the Operator, and the balance of the Outlot Contribution shall be retained by the Operator. Common Area Expenses shall be reduced by the amount of the Outlot Contribution retained by the Operator. Operator's and each Party's obligations with respect to this Paragraph shall survive the termination of their interest in the Shopping Center. In the event any portion of the amount billed is not paid within fourteen(14)days after a bill becomes due a late fee of five percent(5%) of the amount due may be charged by Operator and shall be immediately due with the payment of the delinquent bill. Upon written request, Operator shall submit to a Party, copies of paid receipts to support each said item and amount. Any Occupant of the Kohl's Tract responsible for the maintenance of the Common Area thereon shall be deemed a third party beneficiary with respect to the Outlot Contribution and, in the event of an Outlot owner's default under this Paragraph M, shall be entitled to unilaterally exercise all rights and remedies of Operator under this REA as a result thereof. N. COMMON AREA LIGHTING. If any Occupant desires lighting in the Common Area beyond the hours set forth in Paragraph A(8) of this Article IV, such Occupant may request each other Party to keep the Common Area on its Tract illuminated beyond the hours set forth in Paragraph A(8), in which event the requesting Party shall pay to each other Party the extra cost incurred by such Party or Operator in lighting the parking lot after the hours required under Paragraph A(8) based on actual hours of operation beyond such hours. The requesting Party shall pay the amount due to other Parties and Operator within fifteen(15)days after receipt of invoice from such Parties and Operator, respectively. This paragraph shall not apply to the Outlots. O. ACCOUNTING. Operator shall maintain accurate records with respect to Common Area Expenses. Each Party owning a Tract in the Declarant Tract shall have the right to conduct an audit of the Common Area Expenses upon the following terms and conditions: 1. Each Party owning a Tract in the Declarant Tract may audit the Common Area Expenses in order to verify the accuracy of the Common Area Charge provided that: a. The Party specifically designates the fiscal year(s) that the Party intends to audit, which shall be a year within three (3) years of the date of the audit but must be within the time during which the Party had an interest in the Shopping Center;and b. Such audit will be conducted only during regular business hours at the office where Operator maintains records of Common Area Expenses and only after the Party requesting the audit gives Operator fourteen (14) days'notice. 2. The Party requesting the audit shall deliver to Operator a copy of the results of such audit within fifteen(15)days of its receipt by such Party. 3. No subtenant shall have any right to conduct an audit and no assignee shall conduct an audit for any period during which such assignee was not an Occupant. 4. In the event that a Party elects to audit the Common Area Expenses in accordance with this provision, such audit must be conducted by an independent accounting firm or agent that is not being compensated by the Party on a contingency fee basis. In the event that any audit shall disclose an error in the determination of the Common Area Charge, appropriate adjustment shall promptly be made between the Parties to correct such error. P. LIENS. It is agreed that Operator shall have a lien upon the Declarant Tract to secure the payment of the Common Area Charge by the owner(s) of the Declarant Tract and a lien upon the Outlots to secure the payment of the Outlot Contribution by the owner(s) thereof; provided, however, that any such lien shall be subordinate to the lien of any first Mortgage recorded against the Declarant Tract or recorded at the time a lien is filed under Paragraph C of Article V. O. GOVERNMENTAL REGULATIONS. The Parties covenant and agree, with respect to the use and enjoyment of any of the easements and rights granted herein, to comply with all laws, rules, regulations and requirements of all public authorities and to indemnify, defend and hold each other harmless against all claims, demands, losses, damages, liabilities and expenses and all suits,actions and judgments(including, but not limited to, costs and reasonable attorney's fees), arising or accruing from such Party's use, occupation, maintenance, act or omission. The Parties against whom a claim is made or a suit or action commenced, shall give prompt and timely notice of any such claim, suit or action to the Party who is required to indemnify under this REA. ARTICLE V • FAILURE TO PERFORM A. GENERAL. If there is a failure by any Party or Occupant to perform, fulfill or observe any agreement contained within this REA to be performed, fulfilled or observed by it, continuing for thirty(30)days after written notice from any other Party or Occupant,or in situations involving potential danger to the health or safety of persons in, on or about the Shopping Center after written notice, the other Parties or Occupants, may, at their election,cure such failure or breach on behalf of the defaulting Party. Any amount which the Party or Occupant, so electing to cure shall expend for such purpose or which shall otherwise be due from any Party to the others, shall be paid to the Party or Occupant,to whom due on demand, upon delivery of its invoice, together with interest at the rate of interest provided in Paragraph 0 of Article VIII of this REA. The provisions of this paragraph shall be in all respects subject and subordinate to the lien of any Mortgage on the lard of the defaulting Party and the rights of the holder or holders of any Mortgage which is of record at the time a lien is filed of record pursuant to Paragraph C below. B. OTHER REMEDIES. In addition to the foregoing, if any Party defaults in the performance of any other material provision of this REA, which default continues after the period of grace, if any,with respect thereto,any other Party may institute legal action against the defaulting Party for specific performance, declaratory relief, damages or other suitable legal or equitable remedy. The remedies and liens provided in Article IV and Article V and the enforcement thereof as herein provided shall be in addition to and not in substitution for or exclusion of any other rights and remedies which the parties may have under this REA or at law or in equity. Notwithstanding anything contained herein to the contrary the remedies available to the Parties shall not include the termination of the REA. C. LIENS. The lien provided for in Article IV and Article V shall only be effective when filed for record as a claim of lien in the Office of the Register of Deeds of the County in which the Shopping Center is located, signed and verified,which claim of lien shall contain the following as well as any other information required by law in order to make the lien effective. 1. A statement of the unpaid amount of costs and expenses; 2. A description sufficient for identification of the property of the defaulting Party which is the subject of the lien; 3. The last known name and address of the Party or reputed Party of the property which is the subject of the lien;and 4. The name and address of the lien claimant. A curing Party's right to record a lien as provided herein shall not be impaired by an intervening sale or other disposition of the affected Tract, new Tract or demised premises by the defaulting Party. Such lien shall be subordinate to the interest of any prior recorded Mortgagee or Occupant(other than the defaulting Party)of the defaulting Party's Tract. The lien shall be for the use and benefit of the curing Party, and may be enforced by any remedies afforded lien claimants under applicable law or otherwise, including, without limitation, causing a notice of default to be recorded against the defaulting Party's Tract and thereafter causing the Tract to be sold or assigned in the manner provided by applicable law. The curing Party shall have the power to purchase the interest of the defaulting Party at such foreclosure sale and thereafter to hold, lease, mortgage and convey the same. Upon payment in full to the curing Party (prior to such a foreclosure)of the delinquent assessment or unpaid Taxes together with all applicable interest due thereon and attorney's fees relating thereto, the curing Party shall promptly cause to be recorded a further notice stating the satisfaction and release of the lien against the defaulting Partys Tract. D. INJUNCTIVE RELIEF. In the event of any violation or threatened violation by any Party or Occupant of any of the terms, restrictions, covenants and conditions of this REA, any of the Parties or Occupants, in addition to rights set forth in Article V(C) above, shall have the right to enjoin such violation or threatened violation in a court of competent jurisdiction. ARTICLE VI USES A. USE OF THE SHOPPING CENTER. Without the prior written approval of the owners of the Kohl's Tract and the Declarant Tract, no other Party owning a Tract within the Shopping Center shall at any time permit any Occupant in the Shopping Center to do any of the following: 1. conduct or permit any bankruptcy sale unless directed by order of a court of bankruptcy or other court of competent jurisdiction or any fire or "going out of business"sale other than a"going out of business"sale during the thirty(30)day period before the Occupant conducting the sale goes out of business; 2. except as set forth below, open, use, or permit to be used, the sidewalks adjacent to such Occupant's space, or any other portion of the Common Area of the Shopping Center for the sale or display of any merchandise or for any other business, occupation, or undertaking; provided, however, if an Occupant of the Kohl's Tract is conducting sidewalk sales, the other Occupants in the Shopping Center may conduct sidewalk sales at such times as sidewalk sales are being conducted on the Kohl's Tract; 3. use, or permit to be used, any sound broadcasting system or amplifying device which can be heard outside of such Occupant's space, except systems or devices located within such spaces which are intended for hearing within such spaces and are not audible more than twenty-five (25) feet outside of such spaces except for a call system related to a restaurant so long as said call box facility is not audible beyond the boundaries of the Tract upon which it is situated; or 4. use, operate or maintain such Occupant's space in such manner (other than retail and/or restaurant uses typically conducted in a first class shopping center) that any of the rates for any insurance carried by any other Occupant shall thereby be increased, unless such Occupant shall pay each other Occupant an amount equal to any such increase in rates on demand as each premium which shall include such increase shall become due and payable. The provisions of subparagraph 2 above shall not be applicable to the Outlots. Furthermore, notwithstanding subparagraph 2 above, an Occupant of space within the In-Line Shopping Center shall be entitled to sell and display merchandise on the sidewalks immediately in front of or alongside such Occupant's space ("Sidewalk Sales"), provided that(1)such Sidewalk Sales(i)shall occupy no more than fifty percent (50%) of the depth of the sidewalk and shall not interfere with vehicular or pedestrian traffic, (ii) shall not occur on any one tract comprising a part of the Shopping Center more than four(4)times per year and shall not extend for a period of more than seven (7) consecutive days, (iii) shall not occur during the months of October, November or December, and (iv) shall be conducted and maintained in a neat, clean and orderly condition, and further provided that (2) displays of merchandise on the sidewalk immediately in front of the entrance to a building shall be permitted so long as (i) such building is being operated as a Michael's or Pier 1 store and (ii) said displays are conducted in a manner customary for a typical Michael's or Pier 1 store,as applicable. B. USE OF COMMON AREA OF THE SHOPPING CENTER. Without the prior written approval of the owner of the Kohl's Tract,which consent may be withheld in such Party's sole discretion, no Party shall do any of the following or permit any of the following to be done on its Tract: 1. close, restrict or otherwise alter the entrances to the Kohl's Tract except to the extent that a Party is required to do so to comply with the requirements of or as a result of action taken by a governmental agency having jurisdiction over the Shopping Center or access to the Shopping Center(i.e., no alternative means of compliance is available to such Party); 2. change the size, configuration, striping and/or location of that portion of the parking areas and access drives of the Shopping Center designated as "Protected Parking and Access"on the Site Plan attached hereto; 3. construct or permit any third party or tenant of the Shopping Center to construct any improvements within the Shopping Center other than within the building areas designated on the Site Plan attached hereto or erect any kiosks in the Shopping Center;or 4. add any land to the Shopping Center and/or grant any rights to use any of the Common Area of the Shopping Center to other than the Occupants of the Shopping Center and their respective employees, customers and business invitees. C. USE OF THE OUTLOTS. The Outlots shall be subject to the following restrictions: 1. not more than one building shall be built on each Outlot and each building located on an Outlot shall not exceed the maximum Floor Area designated on the Site Plan for such Outlot or thirty feet(30') in height above finished floor elevation (inclusive of parapets and mechanical equipment); 2. all roof top equipment shall be screened in a reasonable manner; and 3. all Outlots shall be maintained in a neat and orderly manner, planted in grass and trimmed until improved and constructed. D. NOXIOUS USE RESTRICTION. No portion of the Shopping Center shall be used for any of the uses set forth in Exhibit D attached hereto. E. PARKING RATIO. Each Tract shall provide sufficient parking spaces within the boundaries on such Tract so as to comply with all applicable codes and regulations, but in any event, not less than ten (10) parking spaces for every one thousand (1,000) square feet of building area when such building will be used as a restaurant, or five (5) parking spaces for every one thousand (1,000) square feet of building area when such building will be used for other purposes. Notwithstanding the foregoing, if the building on the Kohl's Tract is expanded into the expansion area depicted on the Site Plan, subject to applicable governmental regulations, the parking area on the Kohl's Tract shall be required to contain not less than four and three-quarters (4.75) parking spaces for each one thousand (1,000) square feet of building area. Each Party shall take all appropriate steps to ensure that the employees of the Occupants of such Party's Tract use only those parking spaces situated within such Party's Tract. The Outlots designated on the Site Plan as "Outlot 1" and "Outlot 2" may satisfy the parking ratio requirements herein through cross parking easements between such Outlots, and the Outlots designated on the Site Plan as "Outlot 3" and "Outlot 4" may satisfy the parking ratio requirements herein through cross parking easements between such Outlots. ARTICLE VII EXCUSE FOR NON-PERFORMANCE A. FORCE MAJEURE. Each Party shall be excused from performing any obligation or undertaking provided in this REA, except any obligation to pay any sums of money under the applicable provisions hereof, in the event and so long as the performance of any such obligation is prevented or delayed, retarded or hindered by act of God, fire, earthquake, floods, explosion, actions of the elements, war, invasion, insurrection, riot, mob violence, sabotage, inability to procure or general shortage of labor, equipment, facilities, materials or supplies in the open market, failure of transportation, strikes, lockouts, action of labor unions, condemnation, requisition, laws, orders of governmental or civil or military or naval authorities, or any other cause, whether similar or dissimilar to the foregoing, not within the respective control of such Party. ARTICLE VIII MISCELLANEOUS A. AMENDMENT. This REA may only be amended by written agreement of all Parties. B. ATTORNEY'S FEES. In the event any Party, Parties or Occupant, shall institute any action or proceeding against the other or others relating to the provisions of this REA,or any default thereunder,then,and in that event,the unsuccessful litigant in such action or proceeding agrees to reimburse the successful litigant therein for the reasonable expenses of attorneys fees and disbursements incurred therein by the successful litigant. • C. BENEFITS. Each and all of the provisions of this REA on the Parties' part to be performed (whether affirmative or negative in nature)are intended to and shall inure to the benefit of and bind each and every Party, their successors and assigns and shall inure to the benefit of and bind every Occupant, and their respective successors in title or interest. D. BINDING ON FUTURE PARTIES. Each and all of the covenants of the Parties herein are also intended to,and shall run with and against the Shopping Center and shall bind, each and every other Party and each and every other Person having any fee, leasehold or other interest in any part of the Shopping Center, at any time and from time to time, derived through the respective Parties to the extent that such part of the Shopping Center is affected or bound by the covenants in question, or that such covenant is to be performed thereon,and shall inure to the benefit of and bind the Occupants. E. BREACH SHALL NOT DEFEAT MORTGAGE. A breach of any of the terms,conditions, covenants or restrictions of this REA shall not defeat or render invalid the lien of any first Mortgage made in good faith and for value, but such term, condition, covenant or restriction shall be binding upon and effective against any Person who acquires title to the Tract encumbered by said Mortgage, by foreclosure, trustee's sale or otherwise, provided however,no mortgagor,its successors or assigns, shall be personally liable for any breach hereunder unless and until it takes title to the Tract encumbered by said Mortgage and then only for breaches which occur after the date it takes title. F. BREACH SHALL NOT PERMIT TERMINATION. It is expressly agreed that no breach of this REA shall entitle any Party to cancel, or rescind or otherwise terminate this REA, but such limitation shall not affect, in any manner, any other right or remedies which the Parties may have hereunder by reason of any breach of this REA. G. CAPTIONS. The captions of the paragraphs and Articles of this REA are for convenience only and shall not be considered nor referred to in resolving questions of interpretation and construction. H. CONSENT. In any instance in which any Party to this REA shall be requested to consent to or approve of any matter with respect to which such Party's consent or approval is required by any of the provisions of this REA,such consent or approval shall be given in writing, and shall not be unreasonably withheld, delayed or qualified, unless the provisions of this REA with respect to a particular consent or approval shall expressly provide that the same may be given or refused in the sole and absolute judgment of such Party. ESTOPPEL CERTIFICATE. Each Party hereby severally covenants that upon written request of any other Party, it will issue to such other Party, or to any Mortgagee,or any other Person specified by such requesting Party, within thirty(30) days, an estoppel certificate stating: (i)whether the Party to whom the request has been directed knows of any default under the REA by requesting Party, and if there are known defaults by the requesting Party, specifying the nature thereof; (ii) whether to its knowledge the REA has been assigned, modified or amended in any way by the issuing Party(and if it has, then stating the nature thereof);and(iii)that to the Party's knowledge the REA as of that date is in full force and effect. Such statement shall act as a waiver of any claim by the Party furnishing it to the extent such claim is based upon facts contrary to those asserted in the statement and to the extent the claim is asserted against a bona fide encumbrancer or purchaser for value without knowledge of facts to the contrary of those contained in the statement, and who has acted in reasonable reliance upon the statement. However, such statement shall in no event subject the Party furnishing it to any liability whatsoever, notwithstanding the negligent or otherwise inadvertent failure of such Party to disclose correct and/or relevant information. J. GOVERNING LAWS. This REA shall be construed in accordance with the laws of the State of Minnesota and any applicable federal or local laws and regulations. K. INJUNCTIVE RELIEF. In the event of any violation or threatened violation by any Person of any of the terms, restrictions,covenants and conditions of this REA, any of the Parties or Occupants shall have the right to enjoin such violation or threatened violation in a court of competent jurisdiction. In the event a bond is required, the bond shall be commercially reasonable given the circumstances. L. NOT A PUBLIC DEDICATION. Nothing herein contained shall be deemed to be a gift or dedication of any portion of the Shopping Center to the general public or for the general public or for any public purpose whatsoever, it being the intention of the Parties hereto that this REA shall be strictly limited to and for the purposes herein expressed. M. NOTICES. Notices required under this REA shall be in writing and deemed to be properly served on receipt thereof if sent by certified or registered mail or by a commercially recognized overnight delivery service to the following addresses or at such other address as may hereafter be specified by the Parties: The Shoppes of Oak Park Heights,LLC Amcon 200 W. Highway 13 Bumsville, MN 55337 Attention: Gordon Schmitz All notices sent for the purpose of notifying a Party or Occupant of a default pursuant to the terms of this REA must state the following: (i)the nature of the default including the relevant article and section of the REA; (ii) the period within which the defaulting Party must cure the default;and (iii)the consequences of failing to cure the default. N. PARTNERSHIP. Neither anything in this REA contained nor any acts of the Parties hereto shall be deemed or construed by the Parties hereto, or any of them, or by any third person,to create the relationship of principal and agent,or of partnership,or of joint venture,or of any association between any of the Parties to this REA. O. PAYMENT ON DEFAULT. If pursuant to this REA any Party is compelled or elects to pay any sum of money or do any acts which require the payment of money by reason of any other Party's failure or inability to perform any of the terms and provisions in this REA to be performed by such other Party, the defaulting Party shall promptly upon demand, reimburse the paying Party for such sums, and all such sums shall bear interest at the rate of three percent(3%) per annum over the then existing prime rate of interest per annum as defined in The Wall Street Journal or its successor (but in no event exceeding the maximum rate permitted by law) from the date of expenditure until the date of such reimbursement. Any other sums payable by any Party to any other Party pursuant to the terms and provisions of this REA that shall not be paid when due shall bear interest at the rate of three percent (3%) per annum over the then existing prime rate of interest per annum as defined in The Wall Street Journal or its successor (but in no event exceeding the maximum rate permitted by law)from the due date to the date of payment thereof. In no event shall any Mortgagee or any purchaser of Mortgagee's interest at a foreclosure sale or by deed in lieu of foreclosure be obligated to make any payment described in this subparagraph 0 accruing prior to the date that such Mortgagee forecloses on the Tract encumbered by the Mortgage or date that any purchaser purchases Mortgagee's interest in the Tract. Interest shall be compounded monthly. If repayment shall not be made within ten (10) days after such demand is made, the Party having so paid shall have the right to deduct the amount thereof, together with interest as aforesaid, without liability or forfeiture, from any sums then due or thereafter becoming due from it to the defaulting Party hereunder. Any deduction made by the Party having so paid, pursuant to the provisions of this Article from any sums due from it hereunder shall not constitute a default in the payment thereof unless such Party fails to pay the amount of the balance of such sum to the Party to whom the sum is owing in a timely manner. The option given in this Article is for the sole protection of the Party so paying and its existence shall not release the defaulting Party from the obligation to perform the terms, provisions, covenants and conditions herein provided to be performed thereby or deprive the Party so paying of any legal rights which it may have by reason of any such default. P. RELEASE. If a Party shall sell, transfer or assign its Tract, in its entirety, it shall, except as provided in this REA, be released from its future obligations hereunder. It shall be a condition precedent to the release and discharge of any grantor or assignor Party that any and all amounts which shall then be due and payable by such grantor or assignor to any other Party to this REA shall have been paid to such other Party and that such grantor or assignor shall give notice to the other Parties to this REA of any such sale, transfer, conveyance or assignment concurrently with or following the filing for record of the instrument effecting the same. Q. SEVERABILITY. If any term, provision or condition contained in this REA shall, to any extent, be invalid or unenforceable,the remainder of this REA(or the application of such term, provision or condition to Persons or circumstances other than those in respect of which it is invalid or unenforceable) shall not be affected thereby, and each term, provision and condition of this REA shall be valid and enforceable to the fullest extent permitted by law. Notwithstanding anything to the contrary contained herein, a Mortgagee (or its assigns) succeeding to the interest of a Party hereunder shall only have obligations and liability for events happening or amounts accruing on and after the date it becomes the owner or lessee of the Tract encumbered by its Mortgage. R. TIME OF ESSENCE. Time is of the essence with respect to the performance of each of the covenants and agreements contained in this REA. S. WAIVER OF DEFAULT. No waiver of any default by any Party to this REA shall be implied from any omission by any other Party to take any action in respect of such default if such default continued or is repeated. No express waiver of any default shall affect any default or cover any period of time other than the default and period of time specified in such express waiver. One or more waivers of any default in the performance of any term, provision or covenant contained in this REA shall not be deemed to be a waiver of any subsequent default in the performance of the same term, provision or covenant contained in this REA. The consent or approval by any Party to or of any act or request by any other Party requiring consent or approval shall not be deemed to waive or render unnecessary the consent to or approval of any subsequent similar acts or requests. The rights and remedies given to any Party by this REA shall be deemed to be cumulative and no one of such rights and remedies shall be exclusive of any of the other, or of any other right or remedy at law or in equity which any such Party might otherwise have by virtue of a default under this REA, and the exercise of one such right or remedy by any such Party shall not impair such Party's standing to exercise any other right or remedy. • T. SUBDIVISION OF TRACTS. Any Tract may be subdivided into two (2) or more Tracts subject to the following: 1. Any subdivision of a Tract shall be accomplished pursuant to applicable State of Minnesota and local laws and ordinances;and 2. The new Tracts shall be separately assessed by applicable taxing authorities for real estate taxes and assessments;and 3. The new Tracts shall be subject to all of the terms, conditions, rights, duties and obligations of this REA which were applicable to that portion of the Tract of which it previously formed a part;and 4. The new Tracts shall conform with applicable zoning, parking requirements and other governmental or regulatory requirements imposed upon the new Tracts. IN WITNESS WHEREOF, Declarant has executed this REA as of the date first written above. THE SHOPPES OF OAK PARK HEIGHTS, LLC, a Minnesota limited liability company 41/P '4n- 'ame: JAY scorr Title: P r.Es 1 oE•a . STATE OF MINNESOTA/ ) COUNTY OF RAMSEY )SS Personally came before me this 28 day of ✓ it 67" , 2003 , the abo a-named •SAZh SC.e277known to be the f &51 aE7z of The Shoppes of Oak Park Heights, LLC, a Minnesota limited liability company, to me known to be the person who executed the foregoing instrument and acknowledged the same. Ote- •----- ./Lrn. NotaryPublic •t ANTHONY J.GLEEKEL► Notary Public ► Minnesota ► My.:ommrsswn.....Jan 31.2006 I. My Commission Expires: This instrument was drafted by and after recording mail to: Joseph S. Rupkey, Esq. Kohl's Department Stores, Inc. N56 W17000 Ridgewood Drive Menomonee Falls,Wiscorsin 53051 EXHIBIT A Legal Description of the Shopping Center Lots 1 and 2 and Outlot A, Block 1, The Shoppes of Oak Park Heights, according to the recorded plat thereof, Washington County, Minnesota. EXHIBIT A-1 Legal Description of the Declarant Tract Lot 2, Block 1, The Shoppes of Oak Park Heights, according to the recorded plat thereof, Washington County, Minnesota. EXHIBIT A-2 Legal Description of the Kohl's Tract Lot 1, Block 1, The Shoppes of Oak Park Heights, according to the recorded plat thereof, Washington County, Minnesota. • EXHIBIT A-3 Legal Description of the Outlots Outlot A, Block 1, The Shoppes of Oak Park Heights, according to the recorded plat thereof, Washington County, Minnesota. EXHIBIT B Site Plan [see attached] • 6 i 0 ®I ; 1 11--- xi z C h P 0 al y,pS 5 .fir t r btu o n2. --1 N 1t N IA N I . I r I I I ♦ / /-. /iI ::.... • :• :,< 0` IIIIIIIIIIII 4121112 1 IMItaai 313 .i�r.1. I '' ✓j IMMIMniiii.nnnuiuiiiiiiui- • /�� / � �.•. ririri:✓%, I ;I: .4,, i •-• n .::;: :, 1 I :ri. li: '/S po,,, A:.;_, /.z.,.# 1 i / 1 I . :/ .mimnffmrwmffilmr•.................m.....!H!1 I i - liih iiiltiii,„, j iiiiiiiiiiiiiiuiii+ii.iiiiiiiir �_ J !.4 Y Jir I ,I . " , 1if / i I �\� I \\ 1 / \� I / 1 �"f `. i / 1' DATE REVISION OESCRPTION Pin ii—'92iM? LOCATION. .mss �KOHLS • '� 4 9 4si -Tryg -zr-r^r L!""'wr1� it s'T •1-71-1-"'i'*'1'*'T'T"�"T T7 Tl SEC Hwy 36 & I�l t Developed by: 9 1 jN Krueger Lane Kohl's Storm Inc. , N l Stillwater, MN amm0 Falls, 59051 EXHIBIT B-1 Alternative Site Plan [see attached] o IlliI . tf 111 " itae• ...— Iiiil )211 I i i I I r r1 T-i -----Hfft----�----"--"-- , ._ L-_ \ 1 • S��j r / :: dip; moi, ;:.:....... /; /.fir ::..a. :.:..:. b '�%• z .- -. ) aifS2iSSi�; �/`� ., r/ r1111IIi111i;111111111111111111 - % �,i� Milaglaillify 6./A 0, r GAAJ 1.1410601600::.0100S- ilk ,...: ,,-;..,-.4 I 'iiiia'`'03 11111111111111111w i 1 111111111111111_''.:' .'.. ' . ,U, 11111.. 1111111111llllll11111111IIliiil i -13UI �I 1 1 ii ..„ Iv ) I1 I ;! \ �� $ / I I 1 / i 1 WE REVISION DESCRIPTION lilli-19T:ill LOCATION: .f41111111.16-111171•r KOHLS • 1 11;27-1. SEC Hwy 36 & �T '***T ..T"* • N Krueger Lane — °� °T N u Stillwater, MN NMI Roam Department Drive Menomonee !elle, •1 53051 EXHIBIT C Sign Criteria 1. Any occupant of the In-Line Shopping Center occupying less than ten thousand (10,000) square feet of Floor Area may have only one (1) identification sign placed on the exterior of the building it occupies; provided, however, that if any such occupant is located at the corner of a building, then such occupant may have an identification sign on each side of such corner. Any occupant occupying at least ten thousand (10,000) square feet of Floor Area may have more than one identification sign placed on the exterior of the building it occupies. 2. No occupant identification sign attached to the exterior of a building in the Shopping Center shall be: a. placed on canopy roofs extending above the building roof, placed on penthouse walls, or placed so as to project above the parapet, canopy or top of the wall upon which it is mounted; b. placed at any angle to the building; provided, however, the foregoing shall not apply to any sign located under a sidewalk canopy if such sign is at least eight(8)feet above the sidewalk; c. painted on the surface of any building; d. flashing, moving or audible signs; e. signs employing exposed raceways, exposed neon tubes (except for interior window signs), exposed ballast boxes, or exposed transformers; or f. paper or cardboard signs, temporary signs (exclusive of contractor signs), stickers or decals; provided, however, the foregoing shall not prohibit the placement at the entrance of each occupant's space a small sticker or decal, indicating hours of business, emergency telephone numbers, acceptance of credit cards, and other similar bits of information. No occupant of less than ten thousand (10,000) square feet of Floor Area within the In- Line Shopping Center shall have an exterior sign which identifies leased departments and/or concessionaires operating under the occupant's business or trade name, nor shall such sign identify specific brands or products for sale or services offered within a business establishment, unless such identification is used as part of the occupant's trade name. 3. Notwithstanding anything contained herein to the contrary, an Occupant shall be permitted to place within the Common Area directional signs or informational signs such as "Handicapped Parking", the temporary display of"grand opening", "now hiring"or"coming soon" signs, the temporary display of leasing information and the temporary erection of one sign identifying each contractor working on a construction job. EXHIBIT D Prohibited Uses (a) Warehouse, storage or for any assembling, manufacturing, distilling, refining, smelting,agricultural or mining operation; (b) "Second-hand"store whose principal business is selling used merchandise,thrift shops, salvation army type stores, "goodwill" type stores, and similar businesses; provided, however,the foregoing restriction shall not prohibit the operation of an antique shop or any first class national retailer such as"Play it Again Sports"; (c) Mobile home park,trailer court, labor camp,junk yard,or stock yard (except that this provision shall not prohibit the temporary use of construction trailers during any periods of construction,reconstruction or maintenance); (d) Dumping,disposing,incinerating,or reducing of garbage(exclusive of dumpsters for the temporary storage of garbage and any garbage compactors, in each case which are regularly emptied so as to minimize offensive odors); (e) Fire, going out of business(except during the thirty(30)day period immediately prior to the date on which such occupant actually goes out of business), relocation, bankruptcy or similar sales(unless pursuant to court order); (f) Central laundry, dry cleaning plant, or laundromat; provided, however, this restriction shall not apply to any dry cleaning facility providing on-site service oriented to pickup and delivery by the ultimate consumer,including,nominal supporting facilities; (g) Selling or leasing new or used automobiles, trucks, trailers, or recreational vehicles; provided, however, the foregoing restriction shall not apply to the rental of delivery vehicles as an incidental use to a use otherwise permitted under this Lease. (h) Any bowling alley, skating rink or bar (unless part of a sit down restaurant), dance hall,discotheque,night club,gymnasium or off-track betting parlor; (i) Veterinary hospital or animal raising or boarding facilities (except that this restriction shall not be deemed to preclude the operation of pet shops or pet supply superstores such as PETsMART that offer veterinary services as an incidental use); (j) Funeral home or mortuary; (k) Any establishment which stocks, displays, sells, rents or offers for sale or rent any(i) pornographic material, including, without limitation, any"X" rated movie or video or any so-called "adult"magazines, books, recordings or photographs(except that this provision shall not prohibit the operation of a bookstore or video store which carries a broad inventory of books or videos and other materials directed towards the interest of the general public[as opposed to a specific segment thereof]);or(ii)any merchandise or material commonly used or intended for use with or in consumption of any narcotic, dangerous drug or other controlled substance, including without limitation, any hashish pipe, waterpipe, bong, cilium, pipe screens, rolling papers,rolling devices,coke spoons or roach clips. (I) Flea market; (m) Car wash; (n) Operation whose principal use is a massage parlor, provided this shall not prohibit massages in connection with a beauty salon or health club or athletic facility (except "Curves"or other similar workout facilities); (o) Living quarters, sleeping apartments or lodging rooms; (p) Tattoo parlor or business which offers the piercing of body parts other than ear lobes; (q) Church, school or related religious or educational facility or religious reading room; (r) General office facility other than (I) Landlord's office located on the land and used for the purposes of managing the shopping center; (ii) any office used by any other tenant so long as any such office is incidental to such tenant's use of any portion of the Shopping Center; and (iii) offices that provide services directly to consumers (i.e., financial institutions, real estate agencies, stock brokerages, title company and escrow offices, travel and insurance agencies, medical and dental that do not admit patients for overnight stays, and legal clinics); (s) Cinema or movie theater; (t) Amusement arcades or game rooms, or amusement centers; provided, however, the foregoing restriction shall not prohibit a room of video games or similar arcade games as an incidental use to a restaurant (provided further that this provision shall not be deemed to permit a "Chuck E. Cheese's"or similar facility); (u) Any restaurant located within two hundred (200) feet of the building area on the Kohl's Tract; (v) Automotive service and repair; provided, however, the foregoing restriction shall not prohibit (i)the installation of car stereo equipment; or(ii)a "muffler and Brake"or"TBA"type facility such as a "Midas", "Firestone", "Goodyear" or "Tires Plus" situated on the Outlot Designated on the Site Plan as"Outlot 4"; (w) Any health spa, fitness center or athletic facility which occupies more than five thousand (5,000) square feet of Floor Area; or (x) Any bar, tavern, restaurant or other establishment whose reasonably projected annual gross revenues from the sale of alcoholic beverages for on-premises consumption exceeds fifty percent(50%)of the gross revenues of such business.