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Appendix E - Amended ECCRs 05-05-2020
COS 1215G '~ 2207232 Security Ti t i c Company IIIIIIII�IIIIIIIIIIIIII�I�����III�IIIIIIIIIII I Page: I ► 5 IIIIIIII 0a 11.07R P.O. Box 6550 Shelley VanotaSalletln Co MT MISC 35.Se Bozeman , MT 59771-6550 Recording Requested By and When Recorded, Return To: f Legal Department Lowe's HIW, Inc. 1530 Faraday Avenue, Suite 140 Carlsbad,CA 92008 FIRST AMENDMENT TO EASEMENTS, COVENANTS, CONDITIONS AND RESTRICTIONS This FIRST AMENDMENT TO EASEMENTS, COVENANTS, CONDITIONS AND RESTRICTIONS ("Amendment") is made this 2�"'�- day of October, 2005, by and between LOWE'S HIW, INC.,a Washington corporation("Lowe's');Saccoccia Lands 11, LLC, a Montana limited liability company("Saccoccia II");and Saccoccia Lands III, LLC,a Montana limited liability company("Saccoccia III")(the foregoing parties hereinafter collectively referred to as the"Parties"). WITNESSETH Whereas Lowe's,Saccoccia 11 and Saccoccia III entered into that certain Easements, Covenants, Conditions and Restrictions("ECC&Rs"),dated 00 D--• al--Ost- 2005, and recorded on OCT 2 7 . 2005 as Instrument Number 2 2 0 7 2 31 in the official records of Gallatin County,Montana; and Whereas Lowe's,Saccoccia 11 and Saccoccia III desire to amend the ECC&Rs to allow for election by Lowe's to install,construct,maintain and operate the Tschache Monument Sign; NOW,THEREFORE, in consideration of the mutual benefits and advantages accruing hereunder and other good and valuable consideration,the receipt and sufficiency of which are hereby acknowledged,the Parties agree as follows: AGREEMENT 1. All capitalized terms used herein and not herein defined shall have the meaning given them in the ECC&Rs. 2. Section 4.3 is hereby amended to add the following subsections 4.3(L)through subsections 4.3(M)to Section 4.3: (L) Notwithstanding anything to the contrary contained in these ECC&Rs, with respect to the Tschache Monument Sign,within thirty(30)days from the Effective Date of these ECC&Rs,the Owner of the Lowe's Parcel may elect to construct, install, I"Amendment to ECC&R's-Bozeman V2 I Pass:IN 11111111111111111111111 r Shelley Vanoa-Gallatin Cc MT MISC as.00 maintain and operate the Tschache Monument Sign which shall be erected or used for the advertising of multiple Owners,tenants or occupants of the Lowe's Parcel, Lot 2, the Seller Commercial Parcel and the Seller Adjacent Parcel, If Lowe's elects to construct, install,maintain and operate the Tschache Monument Sign as set forth above,the provisions of Sections 4.3(F)through Sections 4.3(H)above shall not apply and shall be null and void and shall have no force and effect. The Owner of the Lowe's Parcel shall be entitled to have and maintain a sign panel thereon in the top and most prominent position on both sides of each of the Monument Signs. The Owners of Lot 2,the Seller Commercial Parcel and the Seller Adjacent Parcel shall be entitled to no more than a combined total of six(6)sign panels beneath the Lowe's sign panel. No other sign panel on any Monument Sign shall be of a size ui havc du7lcasions which are greater than seventy-five percent(75%)of the size and dimensions of the Lowe's sign panel on the same Monument Sign. Lowe's sign panels shall be of colors, design and content as required by the Owner of the Lowe's Parcel's own visual sign standards. A National or Regional Tenant's sign panels shall be of colors,design and content as required by such National or Regional Tenant. (M) The cost of constructing the Tschache Monument Sign, if the Owner of the Lowe's Parcel elects to construct the Tschache Monument Sign as provided herein, shall be prorated in accordance with the number of occupants having panels thereon. The Owners placing a sign panel on the Tschache Monument Sign shall each pay their pro rata shares of the cost of construction,maintenance and operation of the Tschache Monument Sign to the Owner of the Lowe's Parcel commencing at the time of its installation of their sign panel on the Tschache Monument Sign. Such pro rata share shall be calculated by dividing the square footage of the Owner's sign panel as the numerator by the total combined square footage of all of the sign panels on the Tschache Monument Sign as the denominator. The Owners having a sign panel on the Tschache Monument Sign shall maintain their sign panels in good condition. If the Owner of the Lowe's Parcel does not elect to construct,install,maintain and operate the Tschache Monument Sign within the above thirty(30)day period,then Sections 4.3(F)through Sections 4.3(H)shall apply and have full force and effect and Sections 4.3(L)through Sections 4.3(M)shall have no force and effect and shall be null and void. 3. Except as amended herein,the ECC&Rs remain in full force and effect. This Amendment may be executed in counterparts which,when taken together,constitute the Amendment. IN WITNESS WHEREOF,the parties hereto have executed this Amendment as of the date first written above. [Remainder of Page Left Intentionally Blank; Signatures Follow on Separate Pages] I'Amendment to ECC&R's-Bozeman V2 2 2207232R Bhallay ailatin Co MT MISC 35.08 Signature Page for Lowe's(Amendment to ECC&Rs): LOWE'S: Lowe's HIW,Inc., • -At.t,4j,y" a Washingtonrporation , By: Name: y. 5� C Title: f Kevin D. Bennett Vice President STATE OF NORTH CAROLINA )ss. COUNTY OF WILKES ON THISQ2L�day of 2005, before Tpe, the cr , a Notary Public in and for said County and State, personally appeared- V A I . J nctL to me personally known to be the person described in and who executed the foregoing instrument, who,being by me first duly sworn, stated that he/she is the 16-ce of LOWE'S HIW, INC., a Washington corporation, and that he/she executed such instrument on behalf of said corporation by authority of its board of directors,and said person acknowledged to me that he/she executed such instrument as the act and deed of said corporation. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year last above written. Nota blic �L—o Printed Name: OFFICIAL SEAL My Commission Expires: 4 SHEILA H,VANNOY NOTMY RRIC-NORTH CARMINA COUNTY OF WILKES I'Amendment to ECC&R's-Bozemn V2 3 2207232 IIIIIIIIIIIIIIIIIIIIIIIIIIIIII ' IIIII III IIIII IIII IIII P 0 d 0/27/2N5 t:07R Malley Veno"allalin Co MT MISC 30.00 Signature Page for Saccoccia II (Amendment to ECC&Rs): SACCOCCIA II: By:_T<�a__ I Name. — Title: Mhw h�,��� ,cti STATE OF (� )ss. COUNTY OFGa k VAin ) ON THIS Z± day of rywov 200, before me, the undersigned, a Notary Public in and for said County and State, personally appeared h��'►,� �x_ ►r rYj��, , to me personally known to be the person described in and who executed the fore wing instrument, who, being by me first duly sworn, stated that he/she is the i of :51((a^ b,. k"5 1% , a p,(b (1, , and that he/she executed s i trument on behalf of said corporation by authority of its board of directors, and said person acknowledged to me that he/she executed such instrument as the act and deed of said corporation. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year last above written. Notary Public c1i '1 Printed Name: S My Commission Expires: 0 AR %r� Kris Harriman Notary Publir,for the state of montana ,�Q• ' 92: Residing at :ra;i�,�r1: lvlontana MY t;oinmi-vine, Fxnirn,•: !ii.iqust ?_, )006 * v A— /OF I tl 01 1'Amendment to ECC&R's-Bozeman V2 4 IIIIII(III)(IIII IIIIII IIIII II�IIIIII III 111111111 Jill 2207232p Shallray Vanoa—Oa1Latln Co MT MIBC 35.00 Signature Page for Saccoccia III (Amendment to ECC&Rs): SACCOCCIA III: By: Nam •..t ,�-� �,,«-�«_ s Title: STATE OF ) ss. COUNTY OF ) ON THIS day of C)L�bL/ , 200c� before me, t e undersigned, a Notary Public in and for said County and State, personally appeared��iP g&w 6(1 M:yc to me personally known to be the person described in and who executed the foregoing instrument, who, being by me first duly sworn, stated that he/she is the ,L of tiCznc oci- n&5 W, a O)nNk;\4.VLL , and that he/she executed s tstrument on behalf of said corporation by authority of its board of directors, and said person acknowledged to me that he/she executed such instrument as the act and deed of said corporation. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year last above written. Notary Public Printed Name: 4��) I1, My Commission Expires: Kris Harriman — — — _— '4Otary Pr:61ir,fr.,; thetitate o1 Montane — '� '• /'� ntarra T MV OFIMO0N \\ I Amendment to ECC&R's-Bozeman V2 5 -'lease return to: Secure Title ca 600 E h 19th •-. Bozema►I, SIT 59718 Recording Requested By and When Recorded, Return To: Robert P. Doane, Esq. Lowe's HIW, Inc. 1530 Faraday Avenue, Suite 140 Carlsbad, CA 92008 111111111 Jill 221,7231 �'LAT7R I II IIIIIIIIIIIIII�III IIIIIIIIIIIIII 1 8 1012712005 111:07A I II III Shelley Vence-Gallatin CO MT MISC 392.00 EASEMENTS COVENANTS, CONDITIONS AND RESTRICTIONS BY AND BETWEEN LOWE'S HIW, INC AND cr N �T. SACCOCCIA LANDS II LLC Mn. N/ ✓ ' AND■ Na SACCOCCIA LANDS III, LLC i erg r� V ti L i E O V p_w+ i 1 - C j 0 ® t q t ECCR'sV IO.DOC 220731 III III, 11111111 A1012712006ZA Shelley Vance-Gallatin Cc MT MTSC 992.00 TABLE OF CONTENTS ARTICLE I BASIC DEFINITIONS................................................................................................2 ARTICLEII EASEMENTS............................................................................................................4 Section 2.1 Definitions and Documentation:.........................................................................4 Section 2.2 Easements Granted With Respect to the Project.................................................6 Section 2.3 Easements Granted With Respect to the Shopping Center...............................I I ARTICLE III USE RESTRICTIONS............................................................................................21 Section3.1 Nuisances: .........................................................................................................21 Section 3.2 Permitted Uses for the Shopping Center:..........................................................21 Section 3.3 Use Restrictions for the Project:........................................................................22 Section 3.4 Exclusive Use Restriction for the Benefit of the Lowe's Parcel:......................24 Section 3.5 Proprietary Rights of Lowe's: ...........................................................................26 ARTICLE IV GENERAL CONSTRUCTION &DEVELOPMENT...........................................26 Section 4.1 Development Parameters for the Shopping Center:..........................................26 Section 4.2 Building Design for the Shopping Center:........................................................27 Section 4.3 Pylon or Monument Signage for the Shopping Center: ....................................28 Section 4.4 Outparcel Development for the Shopping Center:.................. g Section 4.5 Parking on the Seller Adjacent Property. .........33 NL Section 4.6 Performance of Construction Work Generally:.................................................33 Na Section 4.7 Compliance in Construction:.............................................................................34 a �- Section 4.8 Damage and Destruction:..................................................................................34 ARTICLE V MAINTENANCE,TAXES AND INSURANCE....................................................35 U Section 5.1 Maintenance ..............35 gSection 5.2 Maintenance Director:.......................................................................................36 Section 5.3 Failure in Performing Maintenance Responsibilities ..........................36 Section5.4 Taxes:................................................................................................................36 gSection 5.5 Insurance: ..........................................................................................................37 Section 5.6 Failure to Carry Insurance:................................................................................38 Section5.7 Cross Indemnity: ...............................................................................................39 Section 5.8 Waiver of Subrogation:.....................................................................................39 ii ECCR'sV 1 O.DOC 1111111111111111111 Jill,111,111122,17231q Shelley Vance-Gallatin Cc MT MISC 392.00 ARTICLE VI DEFAULT,REMEDIES........................................................................................40 Section6.1 Default:..............................................................................................................40 Section 6.2 Remedies for all Owners:..................................................................................40 Section6.3 Right to Cure:....................................................................................................40 Section6.4 Liens:.................................................................................................................41 Section6.5 Cumulative Remedies: ......................................................................................42 Section6.6 No Waiver:........................................................................................................42 Section 6.7 No Termination for Breach:..............................................................................43 Section 6.8 Limitation of Liability.......................................................................................43 Section6.9 Attorneys Fees:..................................................................................................43 ARTICLE VII MISCELLANEOUS..............................................................................................43 Section7.1 Estoppel Certificates: ........................................................................................43 Section7.2 Term and Perpetuity:.........................................................................................44 Section7.3 Amendment:......................................................................................................44 Section7.4 Notices:..............................................................................................................45 Section 7.5 Ground Lessee Assignment:..............................................................................46 !O N Section 7.6 No Covenant to Continuously Operate: ..........46 C�0 Section 7.7 Severability:.......................................................................................................46 r.'.16 m`° Section 7.8 No Public Dedication:.......................................................................................46 Nd Section 7.9 Counterparts:.....................................................................................................47 g Section 7.10 Relationship of the Parties ....47 a � c � E � O V aa� C .+i aaaaa� m a• O C -�i m 111 ECCR'sV l O.DOC 2072312IIIIIIIIII)IIIIIIIIIIIIIIIIIIIIIIIIIIIIII 11�1111111111 Q Shelley Vance-Gallatin Cc MT MISC 392.00 EASEMENTS COVENANTS, CONDITIONS AND RESTRICTIONS THESE EASEMENTS, COVENANTS, CONDITIONS AND RESTRICTIONS (hereinafter referred to as `BCC&Rs"), are made and entered into as of the date of the last execution hereof, which date is the�!__L day of 2005 ("Effective Date"),by and between Saccoccia Lands II, LLC, a Montana limited liability company ("Saccoccia H") and Saccoccia Lands III, LLC, a Montana limited liability company ("Saccoccia III") and LOWE'S HIW, INC., a Washington corporation ("Lowe's") (the foregoing parties hereinafter collectively referred to as the"Parties"); WITNESSETH : WHEREAS, Lowe's is the owner of that certain tract of real property consisting of approximately sixteen (16) acres located in the City of Bozeman, Gallatin County, State of Montana, as more particularly described on Schedule I attached hereto and made a part hereof for all purposes(the"Lowe's Parcel"); and WHEREAS, Saccoccia 11 is the owner of certain tracts of real property located in the City SD N of Bozeman, Gallatin County, Montana, located contiguous with and adjacent to the Lowe's N pm N d Parcel, which are not intended to be developed in coordination with the Lowe's Parcel, and are a Smore particularly described in Schedule II attached hereto and made a part hereof for all purposes A (the"Seller Commercial Parcel"and"Seller Adjacent Parcel"); and g WHEREAS, Saccoccia III is also the owner of a certain tract of real property located in o the City of Bozeman, Gallatin County, Montana, located contiguous with and adjacent to the Lowe's Parcel which is intended to be developed in coordination with the Lowe's Parcel, and is more particularly described in Schedule III attached hereto and made a part hereof for all u g purposes("Lot 2"); and � s C ; WHEREAS, the Lowe's Parcel, Lot 2, the Seller Commercial Parcel, and the Seller Adjacent Parcel are further designated on the site plan of the overall development, attached hereto and made a part hereof as Exhibit A (the"Site Plan"). NOW, THEREFORE, the Lowe's, Saccoccia II and Saccoccia III hereby declare, agree, covenant and consent that all of the Parcels described on Schedule I, Schedule II, and Schedule 1 ECCR'sV 1 O.DOC IIIIII IIIII IIIII IIIIIi IIIII III I II 2207231 I Ills III IIII IIII IIII 10/27 5 of as /2005 11:07 R Shallay Vance-eallatln 00 MT MISC 392.00 III shall be held, sold and conveyed subject to the following easements, restrictions, covenants and conditions which are imposed on such Parcels to run with the land and be binding on and inure to the benefit of all parties having any right, title or interest in the described Parcels or any part thereof, their heirs, successors and assigns for the purpose of development and operation of the Parcels and to protect the value of such respective Parcels. Further, in consideration of the premises, the agreements and the covenants of the Parties hereto, the mutual benefits and advantages accruing to them, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged,the Parties agree as follows: ARTICLE I BASIC DEFINITIONS Section 1.1. "Project" shall mean the Lowe's Parcel, Lot 2, the Seller Commercial Parcel, and the Seller Adjacent Parcel. Section 1.2. "Shopping Center" shall mean and refer to the Lowe's Parcel and Lot 2. Section 1.3. "Building" shall mean the permanently enclosed structure(s) which 6 has(have) been, will be or may be constructed within the Project, but shall not include Common Area Improvements or any garden center on the Lowe's Parcel. For purposes of these ECC&Rs, 9 yam "Building" shall include any appurtenant canopies, supports, loading docks, truck ramps and p other outward extensions. Section 1.4. "Common Area" shall mean all real property owned by the Parties within a the Shopping Center for the common use and enjoyment of the Owners in the Shopping Center ? E and their respective Permittees, including, without limitation, parking areas, access and egress drives, service drives, sidewalks and non-dedicated streets and shall consist of all portions of the Shopping Center not designated as Permissible Building Areas and all portions of any S Permissible Building Area upon which no Building is currently constructed. Common Areas do not include drive up or drive through areas and facilities, loading docks, patio areas, or permanent outdoor sales areas. w Section 1.5. "Common Area Improvements" shall mean all improvements constructed from time to time within the Common Area and intended for common use which may include, without limitation, parking areas, access and egress drives, service drives, non-dedicated streets, 2 ECCR'sV 1 O.DOC IIIIII IIIII III�I IIIIII IIIII III IIIIIIII III I�II�����IIII Page: 8 of 68 1012712005 07231A Shelley Vance-Gallatin Co MT MISC 392.00 lighting standards, sidewalks, landscaping, fixtures, and signage. The initial Common Area Improvements are shown on the Site Plan. Section 1.6. "Consenting Owner" shall mean and refer to the Owner of the Lowe's Parcel and the Owner of the Seller Commercial Parcel. The Parties intend that there shall be only two (2) Consenting Owners for the Project consisting of only one Consenting Owner representing the Seller Commercial Parcel and only one Consenting Owner representing the Lowe's Parcel. In the event that the Lowe's Parcel or the Seller Commercial Parcel are further subdivided, the current Consenting Owner shall designate the particular parcel of the subdivided Parcel whose Owner shall succeed as the Consenting Owner. Section 1.7. "Default Rate" shall mean the rate of interest that is the lesser of (i) twelve percent (12%) per annum, compounded monthly, and (ii) the maximum rate allowed by applicable law. Section 1.8. "Improvement(s)" shall mean Building(s) and other structures within a Permissible Building Area and Common Area Improvements in the Shopping Center and any CE Building(s) and roadways, parking areas, landscaping, access and egress drives, service drives, N non-dedicated streets, lighting standards, sidewalks, fixtures and signage on the Seller �m� Commercial Parcel and the Seller Adjacent Parcel. N .a a_ Section 1.9. "Maximum Square Footage" shall mean and refer to the maximum square footage allowed for all Buildings contained within a single Permissible Building Area in the O Shopping Center. The Maximum Square Footage for each Permissible Building Area is shown g on the Site Plan. Any change to the Maximum Square Footage shown on the Site Plan shall be subject to the prior written consent of the Consenting Owners, which consent may be withheld in the sole discretion of each of the Consenting Owners and any such change shall be reflected in an amendment to these ECC&Rs. Zz gSection 1.10. "Owner" shall mean and refer to the record owner, whether one or more persons or entities, of fee simple title to any Parcel which is located in the Project or as otherwise g specified in these ECC&Rs. Section 1.11. "Parcel" shall mean and refer to any parcel of land shown as a parcel on the Site Plan and also the Lowe's Parcel, Lot 2, the Seller Commercial Parcel and the Seller Adjacent Parcel. "Outparcel" shall mean and refer to "Lot 2" as shown on the Site Plan. Every 3 ECCR'sV10 DOC 2207231 I 11111 IN 11 �I 1111111 2712005 6e:07A Shelley Vance-Gallatin Co MT MISC 802 M Outparcel shall be a Parcel from the date of recording of a subdivision map showing the Outparcel, so that all references herein to Parcels shall apply with equal force to Outparcels; however,references to Outparcels shall be specific to Outparcels as herein defined. Section 1.12. "Permissible Building Area" shall mean the areas within the Shopping Center designated on the Site Plan within which a Building(s) may be constructed not to exceed the Maximum Square Footage. Any change to the Permissible Building Areas shown on the Site Plan shall be subject to the prior written consent of the Consenting Owners, which consent may be withheld in the sole discretion of each of the Consenting Owners and any such change shall be reflected in an amendment to these ECC&Rs. Section 1.13. "Permittees" shall mean tenants and subtenants and the occupants, contractors, customers, agents, licensees, guests, and invitees of an Owner in the Project, its tenants and subtenants. ARTICLE II n EASEMENTS 10a- Section 2.1 Definitions and Documentation: N tn For the purposes of this Article II,the following will apply: Nro ' (A) An Owner granting an easement is sometimes called the "Grantor", it being a intended that the grant shall thereby bind and include not only such Owner but also its successors and assigns. g (B) An Owner to whom the easement is granted is sometimes called the "Grantee", it E E being intended that the grant shall benefit and include not only such Owner but its successors, ° w assigns, and Permittees; although not for the direct benefit of Permittees, the Grantee may permit S from time to time its Permittees to use such easements; provided, however, that no such n permission nor the division of the dominant estate shall permit or result in a use of the easement Cin excess of the use contemplated at the date of the creation of such easement. _ (C) The term"Utility Facilities"means utility systems and utility facilities serving the Shopping Center or the Project, as applicable, such as the following: storm drainage, detention, retention and disposal facilities and sanitary sewer systems,manholes,underground domestic and fire protection water systems, underground natural gas systems, underground electric power cables and systems, underground telephone and television cables and systems, and all other 4 ECCR'sv I O,DOC IIIIIIIIIIIIIIIIIIIIIiIIIIIIIIIIIIIIIII�� ot 051:0lllllloilll q Shelley Vence-Gallatin Cc MT MISC 392,00 utility systems and utility facilities installed under the provisions of these ECC&RS and as replacements thereto. (D) The term "Common Utility Facilities" means Utility Facilities from time to time situated on or serving the Shopping Center, as specified in these ECC&Rs, up to the building wall of any Building, for use or service in common by all Owners. All Common Utility Facilities lying within any Common Area shall for all purposes be deemed to be included within the definition of Common Area Improvements. (E) The term "Separate Utility Facilities" means Utility Facilities not installed under the terms of these ECC&Rs for use in common by other Owners and not for service of any common area. (F) The word"in"with respect to an easement granted"in"a particular Parcel means, as the context may require, "in", "to","on", "over", "through", "upon", "across", and"under", or any one or more of the foregoing. (G) All easements granted herein are non-exclusive and are irrevocable and perpetual. (H) All easements granted herein shall be easements appurtenant and not easements in gross. �m� (I) In the event an Owner transfers or conveys a portion of its Parcel in accordance N a with the terms of these ECC&RS, those easements granted under this Article II which benefit, bind, and burden the remainder of the Parcel not transferred or conveyed shall benefit, bind, and IM burden the portion of the Parcel so transferred or conveyed, and those easements granted under g this Article II which benefit, bind, and burden the portion so transferred or conveyed shall benefit,bind, and burden the remainder of the Parcel of which it was a part. 0 Q) All easements granted hereunder and herein shall exist by virtue of these 0 ECC&Rs, without the necessity of confirmation by any other document. Likewise, upon the termination of any easement (in whole or in part) or its release in respect of all or any part of any Parcel,in accordance with the terms hereof, the same shall be deemed to have been terminated or released without the necessity of confirmation by any other document. However, upon the reasonable request of an Owner, the other Owners shall sign and acknowledge a document memorializing the existence (including the location and any conditions), or the termination (in whole or in part), or the release (in whole or in part), as the case may be, of any easement, if the 5 ECCR'sV 10.DOC IIIIII IIIII IIIII IIIIII IIIII III�IIIIIII III�����IIII IIII 220°7231p Shelley Vano@-Gallatin Cc MT MISC 392.00 form and substance of the document is approved by the other Owners, which approval shall not be unreasonably withheld. No grant of an easement pursuant to this Article II shall impose any greater obligation on any Owner to construct or maintain its Building(s) except as expressly provided in these ECC&Rs. Section 2.2 Easements Granted With Respect to the Project. The following easements apply to all or a portion of the Project. (A) Easement for the Private Road: Each Owner owning any portion of the Private Road as defined below hereby grants to the other Owner(s) easements for pedestrian and vehicular traffic across the roadway labeled"Private Road"on the Site Plan(the"Private Road"), together with the following rights and subject to the following restrictions and reservations: (i) The Grantors of the Private Road easement agree not to obstruct or interfere in any way with the free flow of pedestrian and vehicular traffic over the Private Road, rp N except to the extent necessary for reasonable repair and maintenance, traffic regulation and � co mRD n control, and to prevent a dedication thereof or the accrual of any prescriptive rights to any person �0m therein (provided, however, that prior to closing off any portion of the Private Road, as herein .d N n= provided, such Owner shall give fifteen (15) days written notice to each other Owner of its a a intention to do so and shall attempt to coordinate such closing with each other Owner, so that no unreasonable interference in the passage of vehicles shall occur). (ii) After the initial construction of the Private Road, the location, road improvements, configuration or design of the Private Road shall not be changed without the prior 0 written consent of each of the Owner of the Lowe's Parcel, the Owner of the Seller Commercial a aParcel and the Owner of the Seller Adjacent Parcel, which consent maybe withheld in the sole discretion of each such Owner. (iii) The Owner of the Seller Commercial Parcel and the Owner of the Seller .I Adjacent Parcel grant to the Owner of the Lowe's Parcel an easement for the installation, construction, maintenance, repair and replacement of the Private Road. Upon completion of the Private Road, the Owner of the Lowe's Parcel shall maintain, repair and replace the Private Road. Upon commencement of construction on the Seller Commercial Parcel or the Seller Adjacent Parcel (which shall be deemed to occur upon the commencement of rough grading on such Parcel), the Owner(s) of whichever above referenced Parcel on which construction has 6 ECCR'sV 10.DOC IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII� 02 10 of 56 07231A ShallaY Vance-Gallatin Cc MT MISC 392.00 commenced shall be obligated to pay its Pro Rata Share to the Owner of the Lowe's Parcel of the reasonable costs incurred by the owner of the Lowe's Parcel for maintaining, repairing and replacing the Private Road (consistent with the maintenance standards set forth in Section 5.1). The above Pro Rata Shares are as follows: (i) the Lowe's'Parcel is 44.5 percent, (ii) the Seller Commercial Parcel is 15.6 percent, and (iii) the Seller Adjacent Parcel is 39.9 percent. Any item of maintenance, repair or replacement in excess of$5,000 (such as repaving) shall require the prior written consent of the above specified Owners, which consent shall not be unreasonably withheld, conditioned or delayed more than thirty(30) days. If such Owner from which consent is sought does not respond within the foregoing thirty (30) day period, the Owner seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten (10) days, such Owner will be deemed to have consented to the request(s) of the requesting Owner. If such Owner does not respond to the second notice within ten(10) days, such Owner is deemed to have consented. Reimbursement will be due from such Owner within CE thirty (30) days after receipt by such Owner of an invoice with copies of reasonable backup LO N documentation(including paid invoices). (iv) The Owner of the Seller Commercial Parcel and the Owner of the Seller Adjacent N N a Parcel shall have the right to make curb cuts anywhere upon their Parcels on the Private Road. p a (B) Easements for Stormwater Utility Facilities and Detention Pond. The Owner of a the Seller Adjacent Parcel hereby grants to each Owner an easement for storm drainage within a the area shown on the Site Plan as the "Stormwater Drainage Easement Area" and to discharge, Cstore, detain or retain stormwater in that area shown on the Site Plan as the "Detention Pond". C. The Owner of the Seller Adjacent Parcel hereby grants to the Owner of the Lowe's Parcel an easement to operate, maintain, repair and replace the Utility Facilities within the Stormwater Drainage Easement Area and the Detention Pond("Stormwater Utility Facilities"). (i) Each Owner shall be responsible for complying with all storm water pollution prevention laws, rules and regulations (including, without limitation, employing best management practices with respect to control and management of water flows, residual runoff and parking lot sweeping), and shall be responsible for its own plans and its own monitoring, record-keeping, and reporting for compliance with storm water pollution prevention regulations (collectively, the "SWPP Obligations"). The fact that the Owner of the Lowe's Parcel or the 7 ECCR'sV 10.D0C IIIIII IIIII IIIII IIIIII IIIII III IIIIIIII III IIIIII III III Page: 11 of 56 10127/2006 07231 Q Sh.11�y Vanoa—Gallatin Co MT MISC 392.00 Owner of the Seller Adjacent Parcel are maintaining the physical condition of the Detention Pond and of the other portions of the Storm Drainage Easement Area shall not render the Owner of the Lowe's Parcel or the Owner of the Seller Adjacent Parcel liable or responsible for any other Owner's SWPP Obligations. (ii) The Owner of the Seller Adjacent Parcel hereby grants to the Owner of the Lowe's Parcel an easement to construct, install, maintain, repair and replace the Stormwater Utilities Facilities and the Detention Pond. Initially, the Owner of the Lowe's Parcel shall maintain, repair and replace the Stormwater Utilities Facilities and Detention Pond. Upon the commencement of construction on any portion of the Seller Commercial Parcel, Lot 2, or the Seller Adjacent Parcel (which shall be deemed to occur upon commencement of rough grading on such Parcel), the Owner of the Seller Adjacent Parcel shall assume from the Owner of the Lowe's Parcel and shall commence to maintain the Stormwater Utilities Facilities and Detention Pond and the Owner(s) of whichever above referenced Parcel on which construction has N commenced shall be obligated to pay its Pro Rata Share of the costs of such operation, qrm maintenance, repair and replacement of the Stormwater Utilities Facilities and Detention Pond to ��. the Owner of the Seller Adjacent Parcel. For purposes of this Section 2.2(B), the Pro Rata .a Shares are as follows: (i) the Lowe's Parcel is 43.7 percent, (ii) the Lot 2 is 1.7%, (iii)the Seller — a Commercial Parcel is 15.3 percent, and(iv)the Seller Adjacent Parcel is 39.2 percent. Any item of maintenance, repair or replacement in excess of$5,000 shall require the prior written consent g of the above specified Owner(s) which consent shall not be unreasonably withheld, conditioned or delayed more than thirty (30) days. If such Owner from which consent is sought does not respond within the foregoing thirty (30) day period, the Owner seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten(10) days, such Owner will be deemed to have consented to the request(s) of the requesting Owner. If such so Owner does not respond to the second notice within ten(10) days of receipt thereof, such Owner is deemed to have consented. Reimbursement will be due within thirty(30)days after receipt by an Owner of an invoice with copies of reasonable backup documentation (including paid invoices). (iii) Promptly after the commencement of the maintenance by the Owner of the Seller Adjacent Parcel of the Stormwater Utilities Facilities and Detention Pond, the Owner of 8 ECCR'sV I O.DOC the Lowe's Parcel and the Owner of the Seller Adjacent Parcel shall use good faith efforts to mutually agree upon a maintenance company which shall maintain, operate, repair and replace the Stormwater Utilities and Detention Pond. Such maintenance company shall not charge more than ten (10) percent for any managerial or administrative expense. Upon the commencement by the agreed upon maintenance company of the maintenance, repair and replacement of the Stormwater Utilities Facilities and Detention Pond, the above specified Owner(s) shall each pay to the agreed upon maintenance company their respective Pro Rata Shares of the costs of such operation, maintenance, repair and replacement of the Stormwater Utilities Facilities and Detention Pond as set forth above. Any item of maintenance, repair or replacement in excess of $5,000 shall require the prior written consent of the above specified Owner(s) which consent shall not be unreasonably withheld, conditioned or delayed more than thirty (30) days. If such Owner from which consent is sought does not respond within the foregoing thirty (30) day period, the Owner seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten (10) days, such Owner will be deemed to have [n consented to the request(s) of the requesting Owner. If such Owner does not respond to the n second notice within ten (10) days of receipt thereof, such Owner is deemed to have consented. 9" Reimbursement will be due within thirty (30) days after receipt by an Owner of an invoice with V a copies of reasonable backup documentation(including paid invoices). _ a (iv) The location of the Stormwater Drainage Easement Area and the Detention Pond may not be changed and the Stormwater Utility Facilities therein may not be relocated or altered without the prior written consent of each of the Consenting Owners and the o Owner of the Seller Adjacent Parcel which consent shall not be unreasonably withheld, conditioned or delayed more than thirty(30) days. If such Owner from which consent is sought y C : does not respond within the foregoing thirty (30) day period, the Owner seeking consent shall n send out a second notice stating within such notice that, if the Owner does not respond within ten (10) days, such Owner will be deemed to have consented to the request(s) of the requesting � L Owner. If such Owner does not respond to the second notice within ten (10) days of receipt thereof, such Owner is deemed to have consented. (C) Open Space Easement Agreement. The Owner of the Seller Adjacent Parcel hereby grants to the Owner of the Lowe's Parcel an easement to construct, use, maintain, alter, 9 ECCR'sV 1 OMOC IIIII IIIII IIIIIIIIIIIIIIIIIIIIIIIIIIIIII IIIIIIII(III Page: Shelley Vanca-Gallatin Cc MT MISC 302.00 inspect, replace, repair, and install certain improvements required by the City of Bozeman to be located within the Open Space Easement Area ("Open Space Easement Improvements"). The Owner of the Lowe's Parcel shall not build or erect any structure or building(including, without limitation, any garage, shed, sign or paving) within that portion of the Seller Adjacent Parcel shown as the "Open Space Easement Area" on the Site Plan. The Owner of the Seller Adjacent Parcel agrees to execute any document reasonably required by any governmental entity pertaining to the Open Space Easement Area, provided that such does not result in any cost or expense to the Owner of the Seller Adjacent Parcel or any additional encumbrance to area other the Open Space Easement Area. (D) Private Access Drive No Change Area. No change to the location and or road improvements on the area depicted on the Site Plan as the "Private Access Drive No Change Area"shall be made without the consent of the Owner of the Lowe's Parcel and the Owner of the Seller Commercial Parcel which shall be in their sole discretion. However, the Owner of the Seller Commercial Parcel may make any curb cuts on the Private Access Drive No Change Area. (E) The Owner of the Seller Commercial Parcel and the Owner of the Seller Adjacent to" Parcel hereby grant to the Owner of the Lowe's Parcel temporary construction related easements CO 1,-`= on their Parcels for the purpose of facilitating the initial construction of the Lowe's development Nn of its home improvement center. (F) No Cross Parking: The Owners in the Project hereby specifically disclaim any intention to create any reciprocal parking easements between the Lowe's Parcel and any other _ g Parcel in the Shopping Center(or in the Project). E (G) Prior Easements Covenants, Conditions and Restrictions. Certain Easements, Covenants, Conditions and Restrictions recorded in the office of Gallatin County Clerk and C y Recorder on February 9, 2004 as Document Number 2139990 ("Prior ECC&Rs") which were Slater partially terminated by that Partial Termination Of Easements, Covenants, Conditions and Restrictions recorded in the office of Gallatin County Clerk and Recorder on October 2 7. 2005 C f as Document Number ?2o7tg8 The parties hereto acknowledge that the easements a granted pursuant to these ECC&Rs are substantially similar to the easements granted in the Prior ECC&Rs, which certain easements, including, including, but not limited to, Article II (Easements) (the "Prior ECC&R Easements") run to the benefit of the City of Bozeman (the 10 ECCRW10 DOC i IIIIII IIIII IIIII IIIIII IIIII III(IIIIIII III IIIIII III�i�l 22072311p Shallay Vanoa—Gallatin Co MT M1SC 392.00 "City") and which easements would have been terminated hereby and replaced by these ECC&Rs if the Prior ECC&R Easements did not run to the benefit of the City. Therefore, the parties to these ECC&Rs irrevocably agree that, as between such parties and their respective heirs, successors and assigns as the Owners in the Project, they shall enjoy, obey, comply with, use, enforce, and respect these ECC&Rs and all rights, easements, covenants, conditions, restrictions, duties, obligations, interests and duties set forth herein in these ECC&Rs in lieu of the Prior ECC&Rs and the Prior ECC&R Easements. Section 2.3 Easements Granted With Respect to the Shopping Center. The following easements apply to all or a portion-of the Shopping Center and in some instances some of the provisions in this Section 2.3, if specified, shall apply to both the Shopping Center and to the Project as a whole. (A) Easements for Use of Common Area. (i) Grant of Easement: Each Owner in the Shopping Center hereby grants to the other Owner in the Shopping Center easements in the Common Area on its(Grantor's)Parcel for: 0 (a) ingress to and egress from the Grantee's Parcel; a a (b) the passage of vehicles; a— (c) the passage and accommodation of pedestrians; and (d) the doing of such other things as are expressly authorized or required to be done on the Common Area under these ECC&Rs. (ii) Design of the Common Areas: (a) Initial Development of the Common Areas: The Common Area Improvements depicted on the Site Plan are hereby deemed approved by the Consenting Owners. (b) Enjoyment and use of the Common Area easements granted by this Section 2.3(A) shall commence on the date the Common Area Improvements with respect to the Common Area in question are substantially complete. (iii) Common Area Sales and Displays: Notwithstanding the grant of easements under Section 2.2(A), sales and displays may be located within the Common Area but only as follows: 11 ECCR'sV 1 O.DOC IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIlli�� 2207231 58 R Shelley Vanoe-Gallatin Co MT MISC 392.00 (a) The Owner of the Lowe's Parcel may conduct parking lot sales, conduct other business and/or display merchandise in that portion of the Common Area (including the parking field) to the side of or in front of any Building on the Lowe's Parcel so long as such activity does not materially interfere with ingress and egress to the rest of the Shopping Center and is not in violation of any applicable law or ordinance. (b) The Owner of the Lowe's Parcel shall have the right, but not the obligation, to install and maintain a bank teller machine or similar kiosk type structure(s) within and on the exterior of the Building on the Lowe's Parcel. (c) The Owner of the Lowe's Parcel may display merchandise, conduct sidewalk sales and/or conduct other business on the sidewalks on the Lowe's Parcel and may otherwise enclose and/or redesign its sidewalk areas without the need of obtaining any other Owner's consent. CO (d) The Owner of the Lowe's Parcel may park vehicles or equipment in ch q n r a the parking field of the Lowe's Parcel in connection with the leasing of vehicles and/or N a equipment. N Q- (iv) Easements for Access Roads: Each Owner in the Shopping Center hereby S. grants to the other Owner(s) in the Shopping Center easements for pedestrian and vehicular i C traffic in those drive aisles and access roads (not less than the widths therefor shown on the Site Plan) on its (Grantor's) Parcel which are shown on the Site Plan as an "Access Road" g (hereinafter collectively referred to as the"Access Road(s)") for the purpose of providing ingress to and egress from the Grantee's and Grantor's Parcel and Tschache Lane, together with the J following rights and subject to the following restrictions and reservations: 02 (a) The use of the Access Road easements by any person entitled to the use thereof shall be in common with all other such persons. The Access Road easements and the land upon which they are located shall be considered in all respects part of the Common Area, and the improvements thereon shall be considered in all respects part of the Common Area Improvements; and (b) As further provided in Section 2.3(A)(vi) herein, Grantors of the Access Road easements agree not to obstruct or interfere in any way with the free flow of pedestrian and vehicular traffic over the roadways which comprise an Access Road, except to the 12 ECCR'sV10.D0C Ir�lll IIIII IIIII IIIIII III II III IIIIIIII III IIIII)III IIII 1 % 072 56 027 '31Q Sh.11oy Vance-69116t1n Cc MT MISC 392.00 extent necessary for reasonable repair and maintenance, traffic regulation and control, and to prevent a dedication thereof or the accrual of any prescriptive rights to any person therein. After the initial construction of the Access Roads, the location, road improvements, configuration or design of the Access Roads shall not be changed by the Owner of the Lowe's Parcel without the prior written consent of the Owner of Lot 2 which shall be in its sole discretion. (v) General Provisions for Common Area Easements: (a) No barriers, fences, walls, grade changes or other obstructions shall be erected so as to impede or interfere in any way with the free flow of vehicular and pedestrian traffic between those portions of the Shopping Center from time to time devoted to pedestrian access, vehicular roadways or parking area, or in any manner unreasonably restrict or interfere with the use and enjoyment by any of the Owners in the Shopping Center of the rights and easements created by this Article 11. In addition, each Owner in the Shopping Center may temporarily close or block traffic on its Parcel for the time necessary for the purpose of protecting ownership rights and preventing creation of easements to the public and unrelated CL third parties (provided, however, that prior to closing off any portion of the Common Area, as herein provided, such Owner shall give fifteen(15) days written notice to each other Owner of its 00 0 1 intention to do so and shall attempt to coordinate such closing with each other Owner in the N a Shopping Center, so that no unreasonable interference in the passage of pedestrians or vehicles Nd� shall occur), and may temporarily fence off portions of its Parcel as reasonably required for the purpose of repair, construction and reconstruction. a (b) The easements granted under this Section 2.3(A) are limited to such ;E portions of the Common Area of the Grantor's Parcel as are now or hereafter from time to time set aside or intended to be set aside, maintained and authorized for such use under these ECC&Rs, specifically including those portions of the Common Area shown on the Site Plan. (c) Each Owner in the Shopping Center hereby reserves the right to eject from the Common Area on its Parcel any person not authorized to use the same. (d) The easements provided for in this Section 2.3(A) are subject to the r on rights to use and the restrictions on use of the Common Area provided for in these ECC&Rs. (B) Easements for Utility Facilities: 13 ECCR'sV 10.DOC 2207231 IIIIII IIIII IIIII IIIIII IIIII III IIIIIIII III IIIIII I�I I�I) � ' 56 012712006 111:07A Molloy Vance-941 W In Co MT MISC 392.00 (i) Grant of Easement: Each Owner in the Project hereby grants to the other Owner(s) in the Project perpetual easements to its (Grantor's) Parcel, except within an Owner's Permissible Building Area, for the installation, use, operation, maintenance, repair, replacement, relocation and removal of Common Utility Facilities and Separate Utility Facilities serving the Parcel of the Grantee. Such easements shall be located to minimize disruption of the Grantor's parking and other improvements on the Grantor's Parcel. (ii) Installation.Repair and Maintenance: (a) All Separate Utility Facilities installed, whether installed under this Section 2.3(B) or otherwise, and all Utility Facilities, shall be underground, if reasonably possible. (b) The location of the Utility Facilities shall be subject to the prior written consent of the Owner across whose Parcel the same are to be located, which consent shall not be unreasonably withheld, conditioned or delayed more than thirty (30) days. If such Owner from which consent is sought does not respond within the foregoing thirty(30) day period,the Owner fA N seeking consent shall send out a second notice stating within such notice that, if the Owner does r00° not respond within ten(10) days, such Owner will be deemed to have consented to the request(s) `n GD-- Ni; of the requesting Owner. If such Owner does not respond to the second notice within ten (10) ", days of receipt thereof, such Owner is deemed to have consented. (c) Except as otherwise provided herein, the Grantee of any easement for Separate Utility Facilities under this Section shall be responsible, as between such Grantee and the Grantor, for the installation,maintenance,repair and removal at Grantee's cost of all Separate Utility Facilities installed by the Grantee pursuant to this grant of easement, as well as for all Separate Utility Facilities installed by the Grantee on its own Parcel. The Grantee of any easement for Utility Facilities shall be responsible for the installation, maintenance, repair and 0 removal at Grantee's cost of all Utility Facilities installed by the Grantee pursuant to this grant of easement; Grantee may or may not be reimbursed by the Owners pursuant to a separate a agreement, however nothing in this Agreement shall obligate the Owner of a Parcel to pay for the costs of installing, maintaining, repairing or removing Utility Facilities on its Parcel (other than relocation at Grantor's request pursuant to Section 2.3(B)(v)). 14 ECCRWIG.DOC i 1111131 I IIIIII IIIII IIIII IIIIII IIIII III IIIIIIII III IIIIII��I I'll P:go: 17 of g 12712005 11g07R Shollay Vanoo-Gallatin Co MT MISC 392.00 (d) Any installation, maintenance, repair, replacement, relocation and removal of Utility Facilities shall be performed by Grantee only after thirty (30) days advance notice to Grantor of Grantee's intention to do such work. However, in the case of an emergency (whereby either persons or property are in immediate danger of substantial damage and/or harm), any such work may be immediately performed after giving such advance notice to Grantor as is practicable and reasonable under the circumstances. (e) All installation, maintenance, repair and removal of Utility Facilities shall be performed in a manner that causes as little disturbance to Grantor as may be practicable under the circumstances and any and all portions of the surface area of Grantor's Parcel which may have been excavated, damaged or otherwise disturbed as a result of such work shall be restored, at the sole cost and expense of Grantee, to essentially the same condition as existed prior to the commencement of any such work. (f) After the Building on the Lowe's Parcel has opened for business, CX notwithstanding anything to the contrary in these ECC&Rs, no Owner in the Project, except the o Owner of the Lowe's Parcel, shall do any installation, repair, replacement or removal of any • Utility Facilities in the Project that will disrupt the business on the Lowe's Parcel, which 14 N a includes, but is not limited to, (i) blocking access and ingress and egress to the Lowe's Parcel, and (ii) causing any disruption to or cessation of any utility services to the Lowe's Parcel (however, temporary interferences with and diminutions in utility services shall be permitted if a they occur during the non-business hours of Lowe's, and such Owner in the Project notifies the a� E Owner of the Lowe's Parcel at least thirty (30) days prior to doing so and coordinates with the manager of the store on the Lowe's Parcel for a reasonably convenient time and duration for 4 such temporary interference or diminution to avoid any adverse effect to the business on the Lowe's Parcel.) o (iii) Easements to Public Utilities. Any grant or other conveyance of an easement to a public utility, as Grantee, by a Grantor in the Shopping Center on its Parcel shall, without necessity of fiuther recital in the conveyancing instrument, be deemed to include the following conditions, covenants and restrictions, in addition to the other provisions of Section 2.3(B), to which such public utility and its successors shall be bound unless specifically stated otherwise in such instrument. 15 ECCWsV 10.D0C _I IlillI III IIII ; 7 Of 56 I Illlll IIII I Illlillllllllllllllilllllllil Shelley Vance-Gallatin Cc MT MYSC 392.00 (a) The easement is non-exclusive; (b) All Utility Facilities installed pursuant to the easement shall be underground, except for manholes and manhole covers which shall be flush with adjacent grade, and except as otherwise shown on plans subject to the prior written consent of Grantor, which consent shall not be unreasonably withheld, conditioned or delayed more than thirty(30)days. If such Owner from which consent is sought does not respond within the foregoing thirty(30) day period, the Owner seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten (10) days, such Owner will be deemed to have consented to the request(s) of the requesting Owner. If such Owner does not respond to the second notice within ten(10)days of receipt thereof, such Owner is deemed to have consented; (c) The right to use the surface areas for the purposes allowed under these ECC&Rs is reserved; (d) Grantor reserves the right to require Grantee to relocate its facilities (and vacate the easement) to another location on Grantor's Parcel, subject to the conveyance of a similar easement, all at Grantor's cost and expense; W 15 (e) Grantee shall not, in its use or installation, interfere with other r - p- c0 o m installations and easements in the area; N (f) Grantee shall protect its Utility Facilities against uses of the surface N N all. made by Grantor and others; (g) Grantee shall make adequate provisions for the safety and convenience of all persons using the area; (h) Grantee, following installation or other work, shall replace and restore o the areas and improvements to the condition in which they were immediately prior to performance of such installation and work; dog (i) Grantee shall defend, indemnify and hold harmless Grantor against all loss, liability, and costs (including reasonable attorney's fees and excluding punitive damages) except that which may result from Grantor's grossly negligent or intentional wrongful act or omission of Grantor, its agents, employees and contractors; and 0) Grantee shall not permit any claim, lien or encumbrance to attach against Grantor's Parcel or any interest therein. 16 ECCR'sv 10.DOC IIIIIIIIIII IIIII IIIIIIIIIII IIIIIIIIIII IIIII����III IIII 2207231A Shelley VanDs-Oallatln Co MT MISC 392.00 (iv) Indemnification: The Grantee shall defend, indemnify and hold Grantor harmless from and against any and all liens, losses, liabilities, costs or expenses (including reasonable attorney's fees and excluding punitive damages), incurred in connection with Grantee's use of the Utility Facilities easements under this Section 2.3(B), except to the extent occasioned by Grantor's grossly negligent or intentional wrongful act or omission to act. (v) Gnmtee's Rights as to Utility Facilities: (a) Use of Separate Utility Facilities: The Grantor of any easement for Separate Utility Facilities under this Section 2.3 may use the utility facilities installed pursuant to such easement; provided, however, that any increase in costs incurred in order to make such utility facilities adequate to serve Grantor's additional use shall be borne by such Grantor; and provided, further, that Grantor gives written notice within the time period called for under, and otherwise complies with,the requirements of Section 2.3(B)(v)(b). (b) Relocation of Utility Facilities on Grantor's Parcel: The Grantor of any easement under this Section 2.3 may relocate on its Parcel any Separate Utility Facilities or Utility Facilities installed thereon under any easement granted by it;provided, however,that such a r relocation: Co (1) may be performed only after Grantor has given Grantee thirty (30) m me r r days' written notice of its intention to relocate such facilities; Na (2) shall not interfere with or diminish the utility services to the Grantee -� M (however, temporary interferences with and diminutions in utility services shall be permitted if they occur during the non-business hours of the Grantee, and Grantee has been notified at least thirty(30)days prior to such temporary interference with or diminution in utility services); (3) shall not reduce or unreasonably impair the usefulness or function of the facilities in question; (4) shall be located underground,if reasonably possible; (5) shall be performed without cost or expense to Grantee, and, if Utility Facilities or Separate Utility Facilities which provide service to the Grantee are involved, in "' accordance with plans approved by the Grantee which approval shall not be unreasonably withheld, conditioned or delayed more than thirty(30) days. If such Owner from which approval is sought does not respond within the foregoing thirty (30) day period, the Owner seeking 17 ECCR'sV 1 O.DOC 2207231 IIIIIIIIIIIIIII II IIIIII IIIII IIIIII�IIII III�IIIIi��I IIII Page 20 r 6 0/27/2006 11:07A Shallay Vance-Gallatin Cc MT MISC 392.00 consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten (10) days, such Owner will be deemed to have approved the request(s) of the requesting Owner. If such Owner does not respond to the second notice within ten (10) days of receipt thereof, such Owner is deemed to have approved.; and, (6) notwithstanding anything to the contrary in these ECC&Rs, shall not disrupt the business on the Lowe's Parcel, which includes, but is not limited to, (i) blocking access or ingress and egress to the Lowe's Parcel, or(ii) causing any disruption of or cessation to the utilities services to the Lowe's Parcel (however, temporary interferences with and diminutions in utility services shall be permitted if they occur during the non-business hours of Lowe's, and such Owner in the Project notifies the Owner of the Lowe's Parcel at least thirty (30) days prior to doing so and coordinates with the manager of the store on the Lowe's Parcel for a reasonably convenient time and duration for such temporary interference or diminution to avoid any adverse effect to the business on the Lowe's Parcel.) (C) Drainage: Each Owner in the Shopping Center hereby grants to the other Owners Win the Shopping Center easements to use, maintain and repair any storm water drainage system 00 0 (the "Storm Drainage System") now or hereafter located on their Parcels, together with the right r�a N to discharge surface water runoff across portions of any Parcel in accordance with the design of N•p Na a the Storm Drainage System; provided, however, that use, maintenance and repair of any Utility m Facilities for the Storm Drainage System shall comply with Section 2.2(A) and Section 2.2(B). CAll Storm Drainage Systems shall be subject to the prior written consent of the Owner of the E Lowe's Parcel and the Owner of Lot 2, which consent shall not be unreasonably withheld, conditioned or delayed more than thirty(30) days. If such Owner from which consent is sought does not respond within the foregoing thirty (30) day period, the Owner seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten (10) days, such Owner will be deemed to have consented to the request(s) of the requesting Owner. If such Owner does not respond to the second notice within ten (10) days of receipt C g thereof, such Owner is deemed to have consented. Any alteration in the natural water flow which may occur as a natural consequence of normal construction activities and the existence of an Owner's Improvements (including, without limitation, Buildings, curbs, drives and paving) shall be permitted, provided that the same is in accordance with a drainage plan consistent with the 18 ECCRW10.DOC IIII111111111111IIIIII111111111111111111111111111111 zze75256 31Q Shelley Vence-Gallatin Cc MT MISC 392.00 requirements of the City of Bozeman and consented to by the Consenting Owners which consent shall not be unreasonably withheld, conditioned or delayed more than thirty (30) days. If such Owner from which consent is sought does not respond within the foregoing thirty (30) day period, the Owner seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten (10) days, such Owner will be deemed to have consented to the request(s) of the requesting Owner. If such Owner does not respond to the second notice within ten (10) days of receipt thereof, such Owner is deemed to have consented. Such drainage shall not cause water to settle or pool within another Owner's Parcel. The Owner of the Lowe's Parcel grants the Owner of Lot 2 an easement to connect the stormwater drainage facilities of Lot 2 with the stormwater drainage facilities of the Lowe's Parcel in a location and manner consented to by the Owner of the Lowe's Parcel which consent shall not be unreasonably withheld, conditioned or delayed more than thirty (30) days. If such Owner from which consent is sought does not respond within the foregoing thirty (30) day period, the Owner seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten (10) days, such Owner will be deemed to have consented to the request(s) of g the requesting Owner. If such Owner does not respond to the second notice within ten(10) days �o of receipt thereof,such Owner is deemed to have consented. (D) Construction Easements: N N a= (i) Each Owner in the Shopping Center hereby grants to the other Owners in the Shopping Center temporary construction related easements in the Common Area of its C (Grantor's) Parcel, and where appropriate and necessary in the Permissible Building Area on its C (Grantor's) Parcel, but only prior to and without delaying the commencement of construction by E Grantor of Improvements on its own (Grantor's ) Parcel, for the purpose of facilitating the initial o 5 construction of the Grantee Improvements contemplated within these ECC&Rs. C (ii) With respect to any Parcels in the Project on which dirt is dumped, the g area shall be sloped to meet any contiguous property within the Project or any public roads, and shall be smoothed in a level manner consistent with the contours of the adjoining property or in a accordance with a grading plan consented to by the affected Owner, which approval shall not be unreasonably withheld, conditioned or delayed more than thirty (30) days. If such Owner from which consent is sought does not respond within the foregoing thirty(30) day period, the Owner 19 ECCR'sV 1 O.DOC ill IIII IIIII IIIII IIIIII IIIII III IIII�I III IIIIIII II 11�20�2,31Q Sh�1l�Y V�no�-G�llstln Cc MT MISC 392.90 seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten (10) days, such Owner will be deemed to have consented to the request(s) of the requesting Owner. If such Owner does not respond to the second notice within ten (10) days of receipt thereof, such Owner is deemed to have consented. (iii) The location and use of all temporary construction easements under this Section 2.3(D) shall be subject to the prior written consent of Grantor,which consent shall not be unreasonably withheld, conditioned or delayed more than thirty (30) days. If such Owner from which consent is sought does not respond within the foregoing thirty(30) day period,the Owner seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten (10)days, such Owner will be deemed to have consented to the request(s) of the requesting Owner. If such Owner does not respond to the second notice within ten (10) days of receipt thereof,such Owner is deemed to have consented. (iv) Each Grantee agrees to pay the Grantor any additional cost of construction, maintenance, repair and replacement of any improvement or structure constructed by Grantor A which may arise on account of or due to Grantee's exercise of its temporary construction W n= easement rights under this Section 2.3(D). Each Grantee further agrees to use due care in the 0E-0;119 Z exercise of the rights granted under this Section 2.3(D) and, in the event the exercise of the rights N 1a Nn� granted under this Section 2.3(D) requires Grantee to enter upon the Parcel of Grantor, to first oi obtain the consent of Grantor as to the specific activities, methods and timing in the exercise of such rights so as to avoid cost or damage to Grantor. a (v) Each Owner in the Project covenants and agrees, respectively, that its exercise of such easements shall not result in damage or injury to the Building(s) or other Improvements of any other Owner, and shall not interfere with or interrupt the business operations conducted by any other Owner. Furthermore, once the final topcoat of asphalt or concrete paving has been placed on the Lowe's Parcel or any Common Area access, egress and service drives to the Lowe's Parcel, all construction traffic to or from Lot 2 shall be limited to the westernmost Access Road from Tschache Lane to the Shopping Center and otherwise not upon the Lowe's Parcel and all construction traffic to or from the Seller Commercial Parcel and the Seller Adjacent Parcel shall be limited to entrances on Baxter Lane and the Private Road (and shall use no portion of the Lowe's Parcel for such traffic). In addition, each Grantee, at its sole 20 ECCR'sV 1 O.DOC I IIIIII(IIII IIIII '101"IIIIII IN 11111111111111111111111111! Y"A Shelley Vance—Gallatin Cc MT MISC 392.00 cost and expense, shall promptly repair, replace or restore any and all improvements of Grantor which have been damaged or destroyed in the exercise by Grantee of the temporary construction easements granted under this Section 2.3(D) and shall defend, indemnify and hold Grantor harmless from and against all liens, losses, liabilities, costs or expenses (including reasonable attorneys' fees and excluding punitive damages) incurred in connection with or arising out of Grantee's exercise of said temporary construction easements, except to the extent occasioned by Grantor's grossly negligent or intentional wrongful acts or omissions. (vi) Grantee's Improvements made within such temporary construction easements shall, for purposes of cost allocation due to maintenance, operation, insurance, taxes, repairs, reconstruction and restoration under these ECC&Rs, be deemed to be part of the Grantee's Parcel and Building and shall be deemed not to be part of the Grantor's Parcel or Building for such purposes in the Project. (vii) Except as reasonably necessary for and during the construction of any �n� Building, no structure of a temporary character shall be erected or allowed to remain on any a a Parcel. (E) Sign Easement. The Owner of the Lowe's Parcel hereby grants to the Owner of a Lot 2, the Owner of the Seller Commercial Parcel and the Owner of the Seller Adjacent Parcel as provided in Section 4.3 of these ECC&Rs an easement to display a total of four (4) sign panels C on the Center Sign, an easement for maintenance, repair and replacement of such sign panels. Section 2.3(E) shall not be construed to mean that each of the above Owners shall be entitled to display four (4) sign panels each. For clarification purposes, there maybe only a combined total of four(4)panels beneath the Lowe's sign panel. ARTICLE III USE RESTRICTIONS 7 � y Section 3.1 Nuisances: No Parcel in the Project shall be used for anything other than purposes which may be permitted by applicable zoning regulations. Nothing shall be done on any Parcel in the Project which is a public nuisance to the community. Section 3.2 Permitted Uses for the ShoppingCs enter: Each Parcel in the Shopping Center shall be used only for financial institutions, service shops, Retail Offices, retail stores selling 21 ECCRW 10.DOC IIIIII IIIII IIIII IIIIII IIIII III IIIIIIII III`�����I II IIII 2204 01 Shelley Vance-Gallatin Co MT MTSC 392,00 retail merchandise normally carried in other shopping centers and restaurants with less than forty (40%) percent of gross revenues from alcoholic beverage sales, all as subject to the further restrictions of this Article III. "Retail Offices" shall mean offices of the type customarily found in retail shopping centers for use primarily with customers or clients including, without limitation, insurance offices, real estate offices, banks and financial institutions, and travel agents, but shall not include educational or training facilities or medical or dental offices. No Retail Office use shall exceed 7,500 square feet and the total of all Retail Office use in the Shopping Center shall not exceed 8,000 square feet. Section 3.3 Use Restrictions for the ShopRing Center and the Seller Commercial Parcel: (A) During the term of these ECC&Rs no portion of the Shopping Center and the Seller Commercial Parcel may be used for any of the following purposes without the prior written consent of the Consenting Owners which consent may be withheld in the sole discretion of a Consenting Owner: (i) A liquor store, or a tavern, bar, nightclub, cocktail lounge, discotheque, g dance hall, or any other establishment selling alcoholic beverages for on-premises consumption; 10 n provided,however,the foregoing shall not prohibit the operation of a restaurant where the sale of �p alcoholic beverages therein comprises less than forty (40%) percent of the restaurant's gross !V N N S revenues. Nn� (ii) A bowling alley, billiards parlor, bingo parlor, arcade or other amusement center. FA (iii) A theater(motion picture or live performance). IBM IE (iv) A health club, gymnasium or spa, provided, however, the foregoing shall `° not prohibit a health club, gymnasium or spa containing less than 20,000 square feet of floor area on the Seller Commercial Parcel. n S (v) A service station,automotive repair shop or truck stop. (vi) A flea market,open air market,tent sale or pawn shop. p t (vii) A training or educational facility (including, without limitation, a school, college, reading room or other facility catering primarily to students and trainees rather than customers; provided that such restriction shall not prohibit the incidental use of an otherwise 22 ECCR'sV 10.D0C 2207231 II IIIII IIIII IIIiI IIIIII IIIII IIIIIIIIIIIIIIIIII�'IIII II Page: 25 of 27/2005 16807R ShOIIQY VanoO-Gallatin Co MT MISC 392.00 permitted business for training or classes, such as "how to" classes taught in conjunction with the sale of retail items from an otherwise permitted retail use). (viii) A child day care facility. (ix) A car wash, except on an Outparcel and where the same shall have constructed and shall use sanitary sewer, water and storm water drainage lines entirely separate from those utilized by the Lowe's Parcel. (x) A medical clinic or medical office, provided, however, the foregoing shall be permitted on the Seller Commercial Parcel. (xi) A storage or mini-warehouse facility. (xii) An establishment for the sale of automobiles, trucks, mobile homes,boats or recreational motor vehicles (provided that such restriction shall not prohibit the lease of vehicles or equipment from the Lowe's Parcel). (xiii) A dry cleaning plant, central laundry or laundromat,provided,however the foregoing shall not prohibit pickup laundry services or pick up dry cleaning with no washing or V dry cleaning done on site shall be permitted. (xiv) A hotel or motel, provided, however, the foregoing shall be permitted on m"" the Seller Commercial Parcel. Nam N a (xv) Governmental offices, provided,however, the foregoing shall be permitted m a on the Seller Commercial Parcel. (B) During the term of these ECC&Rs no portion of the Project may at any time be used for any of the following uses whatsoever: (i) An adult type bookstore or other establishment selling, renting, displaying O or exhibiting pornographic or obscene materials (including without limitation: magazines,books, movies, videos, photographs or so called "sexual toys") or providing adult type entertainment or activities (including, without limitation, any displays or activities of a variety involving, exhibiting or depicting sexual themes, nudity or lewd acts) provided, however, that such a prohibition shall not prohibit the sale of adult materials in compliance with applicable laws and as an incidental part of a bona fide national or regional chain video store, such as Blockbuster or Hollywood Video, or a bona fide national or regional chain general interest bookstore, such as Barnes&Noble or Borders. 23 ECCR'sV 10.DOC IIIIII IIII�IIIII IIIIII IIIII III IIIIIIII III IIIIIII II���� 2207231Q Shelley Vance-Gallatin Cc MT MISC 392.00 (1i) A massage parlor. (iii) A skating rink. (iv) A mortuary, crematorium or funeral home. (v) A mobile home or trailer court, labor camp,junkyard or stockyard. (vi) A land fill, garbage dump or other such facility for the dumping, disposing, incineration or reduction of garbage. (vii) A telephone call center on Lot 2, provided, however, the foregoing shall not be prohibited on the Seller Commercial Parcel and the Seller Adjacent Parcel. (viii) A casino, gambling establishment or betting parlor except as part of the operation of restaurant permitted herein, provided, however, that the total floor area of such restaurant used for gambling shall not exceed thirty (30) percent of the total floor area of the restaurant. (ix) Veterinary hospital or animal raising or keeping facilities except as part of a bona fide national or regional chain pet or pet supply store having at least ten (10) locations under the same name within one(1) or more states. (x) Assembling, manufacturing, industrial, distilling, refining or smelting W N facility, provided, however, light assembling and light industrial facilities shall be permitted on the Seller Commercial Parcel and the Seller Adjacent Parcel. �NN N a Section 3.4 Exclusive Use Restriction for the Benefit of the Lowe's Parcel: (A) No portion of the Project other than the Lowe's Parcel may be used for the �. following purposes: (i) A hardware store or center containing more than 5,000 square feet of floor a area. a� (ii) An appliance and/or lighting store or center containing more than 5,000 a� a_ square feet of floor area, provided, however, the foregoing shall not prohibit the operation of a home electronics store such as a Best Buy, Circuit City, and Frye's Electronics. However, such home electronics stores shall be subject to the restrictions set forth in Section 3.4(A) through t Section 3.4(B). Notwithstanding anything to the contrary contained herein, the square footage limitations contained in this Section 3.4(A)(ii) shall not apply to Best Buy, Circuit City and 24 ECCR'sV I O.DOC IIIII III 1N11,1I II Jill 22072 66 t31 q IIIIIIIIII II IIIII IIIIII IIIII III III Shelley Vance-Gallatin Cc MT MISC 302'00 Frye's Electronics as they are operated and merchandised as of the Effective Date of these ECC&Rs. (iii) A nursery and/or lawn and garden store or center containing more than 3,000 square feet of floor area(including any outdoor areas). (iv) A paint store or center, wall paper store or center, tile store or center, flooring store or center, or carpeting store or center, containing more than 4,000 square feet of floor area for each separate use described in this Section 3.4(A)(iv). (v) A retail and/or warehouse home improvement center, lumber yard, building materials supply center, home improvement service center and/or other stores or centers similar to those operated by or as Lowe's, Home Depot, Home Depot Expo, Villagers Hardware, 84 Lumber, Wickes, Hughes Lumber, McCoys, Menard's, Sears Hardware, Great Indoors, Sutherlands, Scotty's and Orchard Supply. However, this Section 3.4(A)(v) shall not prohibit the operation within the Project of businesses named Dillards, Gottschalk's, JC Penneys; Kohl's; May Department Store; Lord & Taylor; Foley's; Bon-Macy's; Bon-Macy's Furniture; Macy's; Saks; Herbergers; Off 5`h; Proffitt's; Yonkers; Nordstroms; Target; Mervyns and Marshall Fields as they are currently operated and merchandised as of the Effective Date. The businesses named in the foregoing sentence shall still be subject to the restrictions set forth in Section 3.4(A) and as Section 3.4(B). 000 m (B) These restrictions or exclusive rights shall also apply to prohibit a larger business ®N N INhaving space in its store devoted to selling the merchandise described in subparagraphs (A)(i) through(A)(v)when such space exceeds the limitations of subparagraphs(A)(i)through(A)(v). (C) Notwithstanding anything to the contrary in Section 3.5, in the event a retail and/or warehouse home improvement center, lumber yard, building materials supply center, hardware store, lawn and garden store, appliance, and/or lighting store, and/or paint, wall paper, -8 tile, flooring, carpeting and/or decor store or center is not operated in any portion of the Lowe's b Parcel for a period in excess of three (3) consecutive years (excluding temporary closings due to Salterations, casualty, condemnation, or other unavoidable delays beyond the reasonable control of the Owner of the Lowe's Parcel), the above stated exclusives shall be of no further force and/or aeffect until such time as Lowe's or its successors, assigns or tenants shall re-open a store on any a portion of the Lowe's Parcel for any one of the foregoing uses, which reopening shall not 25 ECCR'sv 10 DOC IIIIII IIIII IIIII IIIIII IIIII III IIIIIIII���1II 2207231 IIIIII Jill 1012712006 1.07A Shelley Vanoe—Gallatin Co MT MISC 392.00 prohibit uses in violation of such exclusives if such uses were begun during such time as the above exclusive use restrictions were of no force and/or effect. Section 3.5 Proprietary RiO,its of Lowe's: Any owner, occupant or person owning, leasing or otherwise making use of any portion of the Project shall be deemed, by virtue of accepting such ownership, leasehold interest or making such use, to have covenanted and agreed that (i) the trade names, trademarks, service marks (including, without limitation, all logos, emblems, designs or designating words or names) utilized by Lowe's HIW, Inc. or its affiliated companies ("Lowe's"), in connection with the Shopping Center and the Project or the conduct of its business thereat are registered and/or the proprietary property of Lowe's or its affiliates, (ii) except as provided below, no usage of those marks or names will be made in naming or referring to any activity within or without the Shopping Center or Project and (iii) no usage of such marks or names shall be made without the prior written consent of Lowe's and Lowe's legal counsel, which consent Lowe's may withhold in its sole discretion. Lowe's reserves the right to require any person or entity to whom it may grant a written right to use a given name or mark to enter into a formal written license agreement with Lowe's and to charge a fee or royalty therefor. K N ARTICLE IV CO GENERAL CONSTRUCTION &DEVELOPMENT � °e 0 Section 4.1 Development Parauneters for the Shopping Center and the Protect: N oa Na (A) Permissible Building Areas: All Buildings within the Shopping Center must be constructed within a Permissible Building Area. No Building within the Shopping Center can exceed the Maximum Square Footage shown for each Permissible Building Area on the Site EPlan. Within the Shopping Center, no building, structure or improvements (other than Common Area Improvements) shall be erected or maintained outside of a Permissible Building Area. The U Permissible Building Areas and Maximum Square Footages as shown on the Site Plan cannot be changed without the prior written consent of the Owner of the Lowe's Parcel and the Owner of CLot 2, which may be withheld in their sole discretion, and which changes shall be reflected in an amendment to these ECC&Rs. s (B) Parking Requirements. Each parcel within the Seller Commercial Parcel and Lot 2 shall be self-supporting with respect to parking and shall each contain the lesser of(i) not less 26 ECCR'sV 1 O.DOC II II(III)IIIII IIIIII IIIII III IIIIIIII III�I���II II IIII 2207256 31R II I Shelley Vance-Gallatin Cc MT MISC 392.00 than fifteen (15.0) paved full size automobile parking spaces per each 1,000 square feet of building floor area for restaurant use (including fast food restaurant use) and five(5.0)paved full size automobile parking spaces for each 1,000 square feet of building floor area for any other permitted use constructed thereon, or(ii) the maximum amount of parking spaces allowed by the City of Bozeman. To be self-supporting, the parking spaces must be located on each such Parcel so that parking spaces available on other Parcels or available through easements with other Parcels cannot be counted in meeting the requirements of this Section. (C) Fire Protection: All improvements within the Project shall be constructed in compliance with all applicable federal, state, and local building codes and particularly all improvements within sixty(60) feet of the Building on the Lowe's Parcel shall be sprinklered for fire protection or a fire wall built such that the sprinklered rate for such Buildings will be preserved. There shall be sixty (60) feet of open space on which no buildings or improvements may be constructed around the Building on the Lowe's Parcel such that the Building on the Lowe's Parcel maintains an unlimited area classification for fire protection purposes. Notwithstanding anything else to the contrary in these ECC&Rs, no Owner in the Project shall " N seek a building permit for a Building within sixty (60) feet of the Permissible Building Area on CO a n the Lowe's Parcel without the prior written consent of the Owner of the Lowe's Parcel,which the ..' Owner of the Lowe's Parcel may withhold in its sole discretion. Each Owner agrees to execute N � any separate legal instrument memorializing this sixty (60) foot side yard or no build area reasonably required by any governmental entity. C (D) Condition Prior to Construction: After the Building on the Lowe's Parcel has initially opened for business, each Parcel in the Project shall be kept neat, orderly, and if graded planted in grass and trimmed(or otherwise treated for dust and weed control)until improved and U constructed. Section 4.2 Building Design for the Shopping Center: (A) Harmony. All structures (including Common Area Improvements such as lighting) erected within the Shopping Center shall be architecturally harmonious (including, without limitation, harmonious colors, materials and designs). The Owner of the Lowe's Parcel and the Owner of Lot 2 shall cooperate in creating a reasonably harmonious exterior appearance for the Buildings and Improvements to be constructed by them within the Shopping Center, 27 ECCRW 10DOC I F1111 2207231 1IIII IIII Page: 30 of0//27/2006 1 15:07A Shelley Vanoa-Gallatin Cc MT MISC 392.00 acknowledging however that the Owner of the Lowe's Parcel may construct improvements similar to its current prototypical store building and improvements. Specifically, the initial design and appearance of the Buildings and Improvements on the Lowe's Parcel and any changes to the Buildings and Improvements on the Lowe's Parcel that the Owner of the Lowe's Parcel may deem appropriate for consistency with changes in the design and appearance of its then current prototypical stores do not require the consent of any other Owner. All Buildings within the Shopping Center shall be single story. A bona fide National or Retail Tenant is permitted to construct its standard, prototypical building subject to the restrictions in these ECC&Rs. For the purposes hereof, a "National or Regional Tenant" means a tenant which (i) operates in at least two (2) states under the same name, or (ii) operates ten (10) or more stores in one (1) of more states under the same name. (B) Construction Timing. Weather permitting, all paving and landscaping will be finished upon completion of the Building in the Shopping Center and the Seller Commercial Parcel, but in no event shall it be installed later than ninety (90) days after the Building is occupied. Subject to force majeure, total construction time from pouring footings to the completion of the Building within the Shopping Center and the Seller Commercial Parcel ready for occupancy shall not exceed one(1)year. CO r• Section 4.3 Pylon or Monument Signage for the Shopping Center: N a (A) With respect to any Shopping Center the Center Sign in the location depicted on the Site Plan(the"Center Sign") which shall be erected or used for the advertising of the Owner, tenants or occupants of the Lowe's Parcel, Lot 2, the Seller Commercial Parcel and the Seller g Adjacent Parcel, the Owner of the Lowe's Parcel shall be entitled to have and maintain a sign panel thereon in the top and most prominent position on both sides of each such Center Sign 8 ("Lowe's Sign Panel(s)"). The Owner of Lot 2, the Owner of the Seller Commercial Parcel and the Owner of the Seller Adjacent Parcel shall be entitled to a total combined between such Owners four (4) sign panels beneath the Lowe's Sign Panel. For clarification purposes, there g shall be no greater than a total of four (4) sign panels beneath the Lowe's Sign Panel. No other sign panel on any such Center Sign shall be of a size or have dimensions which are greater than seventy-five percent (75%) of the size and dimensions of a Lowe's Sign Panel on the same 28 ECCR'sV 10.D0C 2207231 I III I IIIIII IIIII III IIIIIIII III IIII IIII IIII Page: t 6 O127120©6 t :07R IIIIIIIIII Shelley Vanoa-Gallatin Co MT MISC 392.00 Center Sign. Lowe's Sign Panels shall be of colors, design and content as required by the Owner of the Lowe's Parcel's own visual sign standards. (B) The cost of constructing the Center Sign shall be prorated in accordance with the number of occupants having panels thereon. The Owner of Lot 2, the Owner of the Seller Commercial Parcel and the Owner of the Seller Adjacent Parcel shall pay their pro rata shares of the cost of construction, maintenance and operation of the Center Sign the obligation of which shall commence upon its installation of a panel on the Center Sign. Such pro rats share shall be calculated by dividing the square footage of the Lot 2, or the Seller Commercial Parcel or the Seller Adjacent Parcel sign panel as the numerator by the total combined square footage of all of the sign panels on the Center Sign as the denominator. The Owner of the Lowe's Parcel, the Owner of Lot 2, the Owner of Seller Commercial Parcel and the Owner of the Seller Adjacent Parcel shall each maintain their sign panels on the Center Pylon in good condition. (C) With respect to monument signs shown on the Site Plan("Monument Signs"), the Owner of the Lowe's Parcel shall construct the Monument Sign shown on the Site Plan at the intersection of Baxter Road and the Private Road (the "Lowe's Monument Sign") and which shall be located as shown on the Site Plan and which shall be erected or used for the advertising 1Wn of multiple Owners, tenants or occupants of the Lowe's Parcel, Lot 2, the Seller Commercial '860 Parcel and the Seller Adjacent Parcel, the Owner of the Lowe's Parcel shall be entitled to have Nm and maintain a sign panel thereon in the top and most prominent position on both sides of the Lowe's Monument Sign. The Owners of Lot 2, the Seller Commercial Parcel and the Seller Adjacent Parcel shall be entitled to no more than a combined total of six (6) sign panels beneath the Lowe's sign panel. No other sign panel on the Lowe's Monument Sign shall be of a size or have dimensions which are greater than seventy-five percent(75%)of the size and dimensions of a Lowe's sign panel on such Monument Sign. Lowe's sign panels shall be of colors, design and content as required by the Owner of the Lowe's Parcel's own visual sign standards. A National Ior Regional Tenant's sign panels shall be of colors, design and content as required by such National or Regional Tenant. g (D) The cost of constructing the Lowe's Monument Sign shall be prorated in accordance with the number of occupants having panels thereon. The Owners placing a sign panel on the Lowe's Monument Sign shall each pay their pro rata shares of the cost of 29 ECMV IO.DOC zz®2 of 66 Shelley Vence-Gallatin Co MT MI6C 302.00 construction, maintenance and operation of the Lowe's Monument Sign to the Owner of the Lowe's Parcel commencing at the time of its installation of a panel on the Lowe's Monument Sign. Such pro rata share shall be calculated by dividing the square footage of the Owner's sign panel as the numerator by the total combined square footage of all of the sign panels on the Lowe's Monument Sign as the denominator. The Owners having a sign panel on the Lowe's Monument Sign shall maintain their sign panels in good condition. (E) The Owner of the Seller Commercial Parcel grants the Owner of the Lowe's Parcel an easement for construction,maintenance, operation and repair of the Lowe's Monument Sign shown on the Site Plan located on the Seller Commercial Parcel. (F) The Owner of the Seller Commercial Parcel or the Owner of the Seller Adjacent Parcel may construct, at no cost or expense to the Owner of the Lowe's Parcel, the Monument Sign shown on the Site Plan at the intersection of Tschache Road and the Private Road (the "Tschache Monument Sign") and which shall be located as shown on the Site Plan and which shall be erected or used for the advertising of multiple Owners,tenants or occupants of Lot 2,the Seller Commercial Parcel and the Seller Adjacent Parcel. The Owners of Lot 2, the Seller Commercial Parcel and the Seller Adjacent Parcel shall be entitled to no more than a combined a total of six (6) sign panels on the Tschache Monument Sign. A National or Regional Tenant's 6 N sign panels shall be of colors, design and content as required by such National or Regional o Tenant. N r N (G) The cost of constructing the Tschache Monument Sign shall be prorated in •� al., N� = accordance with the number of occupants having panels thereon. The Owners placing a sign panel on the Tschache Monument Sign shall each pay their pro rata shares of the cost of g construction, maintenance and operation of the Tschache Monument Sign to the Owner of the Seller Commercial Parcel or the Owner of the Seller Adjacent Parcel, whichever Owner 3 constructs the Tschache Monument Sign and maintains and operates such, commencing at the r time of its installation of a panel on the Tschache Monument Sign. Such pro rats share shall be Scalculated by dividing the square footage of the Owner's sign panel as the numerator by the total �■ combined square footage of all of the sign panels on the Tschache Monument Sign as the denominator. The Owners having a sign panel on the Tschache Monument Sign shall maintain their sign panels in good condition. 30 ECCR'sV 1 O.DOC �� IIIIIII!���I�iil IIII ?zO3z30 Shelley Vence-Gallatin Cc MT MISC 392.00 (H) The Owner of the Lowe's Parcel grants the Owner of the Seller Commercial Parcel or the Owner of the Seller Adjacent Parcel, whichever Owner constructs the Tschache Monument Sign and maintains and operates such, an easement for construction, maintenance, operation and repair of the Tschache Monument Sign shown on the Site Plan located on the Lowe's Parcel. (I) The location of any Center Sign or Monument Sign and the design of any Center Sign Structure, sign panel, or Monument Sign(other than Lowe's sign panels) shall be subject to the prior written consent of the Consenting Owners, which consent shall not be unreasonably withheld, conditioned or delayed more than thirty(30) days. If such Owner from which consent is sought does not respond within the foregoing thirty (30) day period, the Owner seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten (10) days, such Owner will be deemed to have consented to the request(s) of the requesting Owner. If such Owner does not respond to the second notice within ten(10)days of receipt thereof, such Owner is deemed to have consented. If an Owner desires to display a sign panel on a Monument Sign or erect a Monument Sign, it shall make its request in writing to the Consenting Owners with a copy of the sign plans. Notwithstanding the foregoing, an Owner ~~a does not need the consent of the Consenting Owners for the design of its sign panel on the Center man NS N d Sign and the Monument Signs so long as it is a bona fide national or regional retail or restaurant g chain having ten(10)or more locations with the same name within one(1)or more states and the design of such sign panel is substantially the same as the prototype sign panels used for such chain's facilities. (J) Notwithstanding the foregoing, there may be erected entrance-exit signs to S facilitate the free flow of traffic, which entrance-exit signs shall be of a monument type, not to exceed 3'3"in height. 10, (K) There shall be no other free standing signs allowed in the Shopping Center. If there are any other freestanding signs in the Project, the height of such signs shall not exceed eleven(11) feet in height and shall not block any view of the Lowe's Monument Sign. Section 4.4 Outparcel Development for the Shopping Center: Any Outparcel sold or developed within Shopping Center will only be developed under the following guidelines: 31 ECCWsV 1 O.DOC 2207231 IIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIIII�irIIII Pe1z„z4006riea 1 I II 07a Shelley Vance—Gallatin Co MT MISC 392.00 (A) Any Building constructed on Lot 2 shall not exceed twenty-seven (27) feet in height including any architectural features, towers and parapets, as measured from the finished elevation of the parking area of the Shopping Center. (B) Any rooftop equipment installed on any Outparcel shall be screened as required by the City of Bozeman; (C) No rooftop signs shall be erected on any building constructed on any Outparcel. (D) A Monument Sign may be erected on any Outparcel, but in no event shall such Monument Sign(other than Lowe's Monument Sign) exceed eight(8) feet in height or block the visibility of any signage on any Building located on the Lowe's Parcel or the visibility of any Lowe's Monument Sign or any Center Sign. (E) Any Owner or other party purchasing or leasing from an Owner and having an ownership or leasehold interest in an Outparcel shall repair any damage caused to any of the Utility Facilities, as described in Section 2.3 of these ECC&Rs, serving the Parcels and the Outparcel which is caused by such Owner or party, to the extent the Outparcel benefits from any of the Utility Facilities serving the Shopping Center and the Outparcel. a (F) The foregoing restrictions and agreements are imposed on each of the Outparcels for the benefit of the entire Shopping Center. The agreements, restrictions and covenants herein Doon r made shall be deemed restrictive covenants running with the land and shall be binding upon each Na of the Outparcels and any person who may from time to time own, lease, or otherwise have an m interest in any of the Outparcels. O (G) The Owner of Lot 2 shall have the right to one (1) curb cut along Access Road on g the eastern boundary of Lot 2 and such shall be right turn from Lot 2 and exit only from Lot 2. E (H) The Owner of Lot 2 shall have the right to one (1) curb cut on the western most � E Access Road along the western boundary of Lot 2 for full ingress and egress. O (1) The Owner of Lot 2 shall be locate any drive up or drive through lane or aisle a gconfiguration on Lot 2 such that the design will accommodate a minimum of nine(9)cars within Lot 2. No queuing or stacking of any vehicles in connection with such drive through or drive up g lane, aisle or window shall be located on the Lowe's Parcel. in 32 ECCR'sV IO.DOC 2207231 I I�IIII IIII II IIIIIIIILIIIIf��������� IUl1111111111111 11Palls: 350/2712005f l31a Shallrr Vanoa-Gallatin Ca MT MIN 702.00 (J) The configuration and design of Lot 2 shall not permit the backing up or turning in by any vehicle directly into parking spaces on Lot 2 from or to any driveway or drive aisle on the Lowe's Parcel. Section 4.5 Parking on the Seller Commercial Parcel and the Seller Adjacent Parcel. The Seller Commercial Parcel and the Seller Adjacent Parcel shall contain sufficient parking to meet the parking requirements of the City of Bozeman, and without relying on parking available, by easement or otherwise, on any other Parcel. Section 4.6 Performance of Construction Work Generally: All construction, alteration or repair work ("Work") undertaken by an Owner in the Project after the Building on the Lowe's Parcel has opened for business shall be accomplished in an expeditious, diligent and speedy manner. The Owner undertaking such Work shall: (i) pay all costs and expenses associated with such Work; (ii) take necessary measures to minimize disruption and inconvenience caused by such Work; (iii)make adequate provisions for the safety and convenience of the Owners and their Permittees; (iv) control dust,noise and other effects of such work using methods customarily utilized in order to control such deleterious effects associated with construction projects in a populated or developed area; (v) repair any and all damage which may be caused by or result from such Work; (vi) restore all affected portions of �O N any Parcel to a condition equal to or better than the condition existing prior to beginning such 00 o g Work; (vii) indemnify and hold harmless all other Owners in the Project against any mechanics liens for such Work, particularly as to Common Areas; and (viii) obtain all necessary N�a N a= governmental approvals. Such Work shall not unreasonably interfere with the business _ a operations on any other Parcel and shall not block or impede the Shopping Center ingress or -- egress from public streets or ingress and egress from or to the Shopping Center. The party performing such Work shall limit all construction work and staging areas to its own Parcel and not encroach on any Common Areas on any other Parcel and shall not utilize parking areas of any U other Parcel. In connection with Work performed within the Permissible Building Areas of the constructing Owner, incidental encroachment upon the common area of the party performing g such work may occur in the use of ladders, scaffolding, store-front barricades and similar facilities resulting in temporary obstruction of portions of such common area, if such encroachment is kept within reasonable requirements of such Work expeditiously pursued. All 33 ECCR'sV IO.DOC (IIIII I�III II�II IIIIII IIIII III IIIIIIII II�IIMII II I(�II 2207231of668 Shelley Vanoo-Gallatin Co MT MISC 392.00 such Work for which a license is granted above (i) which will be performed by an Owner on another Owner's Parcel (subject to Section 2.3(D)(5)), or (ii) which would adversely affect the ingress and egress to the Shopping Center, the availability of parking and/or circulation of traffic in the Shopping Center, or the operation and supply of common utility facilities to or in the Shopping Center shall be undertaken only after giving the other Owners in the Shopping Center thirty (30) days prior written notice of the Work to be undertaken, and the scope, nature, duration,location and extent of the Work. Such notice shall include any plans and specifications for the Work ("Plans"). In the event of any emergency involving an immediate and imminent threat of substantial harm or injury to persons or property,only such notice as may be reasonable under the circumstance shall be required. Section 4.7 Compliance in Construction: All Work which an Owner undertakes pursuant to these ECC&Rs shall comply with the Plans(to the extent approved Plans are required under these ECC&Rs), the requirements of all applicable governmental authorities, public bodies and other entities (such as public utilities) having N Rt jurisdiction, and all applicable laws, ordinances, rules and regulations, including procurement of co: 1" 1 all license and permits required for such Work. The consent by the Owner of the Lowe's Parcel N i z of any such Work or Plans, under any provisions of these ECC&Rs, shall not constitute any tVn� .�: assumption of responsibility for the accuracy, sufficiency or propriety of such Work or Plans, nor I shall such consent constitute a representation or warranty that such Work or Plans will be g economic to construct or will comply with law. Section 4.8 Damage and Destruction: In the event of the destruction or damage to any extent to any Buildings or Improvements in the Project, the affected Owner shall either: (1) diligently commence and pursue completion of the grepair or restoration of such Building or Improvement, or (2) within ninety (90) days after the ' destruction or damage, level such Building or Improvement, remove the debris and keep the � T Parcel neat, orderly,planted in grass and mowed/trimmed(or otherwise treated for dust and weed control)until subsequently improved, constructed upon and operated and so that the Parcel is in a clean,orderly, sightly and safe condition. 34 EMUsV 1 O.DOC '^207231 I II IIII IIIIIIII IIII IIII 1©�l2712006t 166 07A I IIIIIIIIIIIIII IIIIII(IIII III IIII � I 5hallav Vanom-Gallatin Cc MT MISC 392.00 ARTICLE V MAINTENANC -'.TAX S AND INSURANCE Section .5.1 Maintenance: (A) Maintenance in the Proiect. Each Owner in the Project shall maintain the Building(s), the Common Areas and the roads, access drives and parking areas on its Parcel in good order and condition and state of repair in accordance with the standards of first class shopping center operation including(but not limited to) sweeping and removal of trash,litter and refuse,painting and striping of parking areas, repair and replacement of paving as necessary(but in no event more often than once every seven (7) years), maintenance of landscaped areas (including replacement and replanting), removal of ice and snow from driveways and parking areas, and maintenance and repair of lighting standards and signs. Each Owner in the Project covenants that it, in addition to other requirements of this Section, will keep the inside and outside of all glass in the doors and windows of its Buildings clean;will maintain its Buildings at its own expense in a clean, orderly and sanitary condition and free of insects,rodents,vermin and other pests; will not permit accumulation of garbage, trash, rubbish and other refuse, and will jd o g remove same at its own expense, and will keep such refuse in proper containers or compactors in 9 A N places designated therefore until called for to be removed; and will keep the Common Areas on .4 its Parcel clear of accumulations of ice and snow. The maintenance and repair of the Bui ngs and Improvements on each Parcel in the Project shall be of such a character that their appearance will be in a neat and orderly appearance, and, accordingly, the Owners agree to cooperate with g each other in good faith with respect to said maintenance and repair and,to the extent reasonably possible, coordinate such repair and maintenance. B Light Each Owner in the Shopping Center shall cause the Common Area on C « ( ) -in its Parcel to be adequately lit for at least the hours during which the business on the Lowe's C g Parcel is open for business and for one(1)hour after the business on the Lowe's Parcel closes. (C) Center Sims: The Owner of the Lowe's Parcel shall be responsible for maintenance, repair and replacement of the sign structure for the Center Signs, subject to reimbursement by each Owner entitled pursuant to Section 4.3 to display a sign panel thereon. Each such Owner's share shall be calculated as a fraction, the numerator of which is the total 35 ECCWsV 1 O.DOC IIIIII IIIII II III IIIIII IIIII III IIIIIIII II► IIII IIII � �7231p Shelley Vance-Gallatin Cc MT MISC 392.00 square footage of such Owner's sign panel and the denominator of which is to the total square footage of all sign panels on the Center Sign. Section 5.2 Maintenance Director: Subject to the mutual agreement between the Owner of the Lowe's Parcel and the Owner of Lot 2, a third party may be appointed to maintain and repair the Common Areas in the Shopping Center in the manner as above outlined(the"Maintenance Director"). The Maintenance Director may receive for such agency a fee that is mutually acceptable to the Consenting Owners to cover supervision, management, accounting and similar fees. The cost of all maintenance and repair activities undertaken by the Maintenance Director,together with the agency fee, shall be prorated between all Owners based upon acreage owned. Each Owner shall pay its proportional share of all such costs and fees within thirty(30)days following its receipt of a detailed invoice thereafter. Section 5.3 Failure in Performing Maintenance Responsibilities: In the event that an Owner fails or defaults in its maintenance obligations as set forth in Section W V� 5.1,which failure continues for a period of thirty(30)days (ten[10]business days in the event of co ° a failure to pay money) after receipt of written notice thereof specifying the particulars of such Nab NL a failure, such failure shall constitute a breach under the ECC&RS and either Consenting Owner N„` _ (the "Curing Party") may thereafter perform such maintenance obligations, in addition to such Owner's other remedies. The Curing Party shall then invoice the defaulting Owner for the expenses incurred. The defaulting Owner shall have fifteen (15) days to pay the Curing Party g E after receipt of the invoice. If the defaulting Owner does not so pay, the Curing Party shall be S entitled to obtain a judgment lien on the Parcel of the defaulting Owner for the amount of the invoice, which amount shall bear interest at the Default Rate from the date of expiration of said fifteen(15) day period until paid. Section 5.4 Taxes: The Owner of each Parcel in the Project shall pay or cause to be paid, prior to delinquency, directly to the appropriate taxing authorities all real property taxes and assessments which are levied against such Owner's Parcel. In the event an Owner fails to pay when due all taxes and assessments described herein, which failure continues for a period of ten (10) days after written notice thereof, such failure shall constitute a breach under these ECC&Rs and either Consenting Owner(the"Curing Party")may, in addition to such Owners' other remedies,thereafter pay such 36 ECCR'sV 1 O.DOC t 2207231 IItIIA1012712006116B07A I IIIIII IIII�II�II II 5h@118Y Vanoa-Gallatin Ca M7 M16C 392.00 taxes if such taxes are delinquent and the owing Owner has not commenced and is not duly prosecuting any contest of such taxes. The Curing Party shall then invoice the defaulting Owner for the expenses incurred. The defaulting Owner shall have ten (10) business days after receipt of the invoice to pay the Curing Party. If the defaulting Owner does not so pay,the Curing Party shall have a lien on the Parcel of the defaulting Owner for the amount of the invoice, which amount shall bear interest at the Default Rate from the date of expiration of said ten(10)business day period until paid. Section 5.5Insurance: (A) Insurance Coverage: Each Owner in the Project shall at all times maintain or cause to be maintained with respect to its Parcel and all Buildings and Improvements thereon and by any contractor during any construction activity on such Owner's Parcel, at least the minimum insurance coverage set forth below: (i) Worker's Compensation and Employer's Liability Insurance. (a) Worker's compensation insurance as required by any applicable law or regulation. hem (b) Employer's liability insurance in the amount of$2,000,000 each accident ®� for bodily injury, $2,000,000 policy limit for bodily injury by disease and $2,000,000 each N •a g employee for bodily injury by disease. (ii) Commercial General Liability insurance with the following minimum limits of liability and coverages: C _ (a) Premises and Operations; (b) Products and Completed Operations; (c) Contractual Liability (insuring the indemnity obligations assumed by any O contractor working on an Owner's Parcel under contract documents); (d) Broad Form or Special Form Property Damage, including Explosion, _ Collapse and Underground Hazards or Earthquake, for the full replacement cost of Buildings and -- m Improvements on an Owner's Parcel(including Completed Operations): (1) $2,000,000 for Bodily Injury and Property Damage each occurrence; (2) $3,000,000 for Personal and Advertising Injury Liability; (3) $5,000,000 aggregate for Products and Completed Operations; 37 ECCRW10 DOC Aa. ,..%, IIIIII IIIII IIIII IIIIII IIIII III(IIIIII I 2207231 (III(III Page: of 56 07R Shelley Vanoa.Gallatln Cc MT MISC 392.00 (4) $5,000,000 general aggregate. (e) Automobile Liability Insurance. Automobile liability insurance (bodily injury and property damage liability) including coverage for owned, hired, and non-owned automobiles, shall have limits of liability of not less than $1,000,000 combined single limit each accident for bodily injury and property damage combined. (f) Umbrella/Excess Liability Insurance. Each Owner shall also carry umbrella/excess liability insurance in the amount of$5,000,000. (B) Insurance Coverage: The policies of insurance as required in Section 5.5(A) shall be provided by insurance companies rated at least B+NII and licensed in the State of Montana, shall name every other Owner in the Project as an additional insured, and shall provide that such insurance shall not be canceled or reduced in an amount or coverage below the requirements of these ECC&Rs without at least thirty (30) days prior written notice to the additional insureds. All insurance may be provided under(i) an individual policy covering this location, (ii)a blanket policy or policies which includes other liabilities, properties and locations of such Owner, provided, however, that if such blanket commercial general liability insurance policy or policies ;p contain a general policy aggregate of less than $10,000,000.00, then such insuring Owner shall o also maintain excess liability coverage necessary to establish a total liability insurance limit of 9 $10,000,000.00, (iii) a plan of self-insurance, provided that such Owner or its parent has N N a $100,000,000.00 or more of net current assets, or (iv) a combination of any of the foregoing It insurance programs. To the extent of any deductible carried by an Owner, such Owner shall be W deemed to be covering the amount thereof under an informal plan of self-insurance; provided, g however, that in no event shall any deductible exceed $250,000.00 unless (a) such Owner a� w rc � E 0 complies with the requirements regarding self-insurance pursuant to iiI above or such s g p � g g p (� �) ro) Owner or its parent maintains net current assets in excess of $100,000,000.00. Each Owner r agrees to furnish to any party requesting in writing the same, a certificate(s) of insurance evidencing that the insurance required to be carried by such party is in full force and effect. Section 5.6 Failure to Carrn Insurance: In the event an Owner in the Project fails to maintain the insurance described above, which failure continues for a period of ten (10) days after written notice thereof, such failure shall constitute a breach under these ECC&Rs and either Consenting Owner(the"Curing Party")may, 38 ECCR!SV 1 O.DOC r 2207231 11111111111111111111111111111111111111111111111111111111 10,2712006'116 607A Shelley Vanon-Gallatin Co MT MISC 992.00 in addition to such Owners' other remedies, thereafter obtain and pay for such insurance. The Curing Party shall then invoice the defaulting Owner for the expenses incurred. The defaulting Owner shall have fifteen (15) days after receipt of the invoice to pay the Curing Party. If the defaulting Owner does not so pay, the Curing Party shall have a lien on the Parcel of the defaulting Owner for the amount of the invoice, which amount shall bear interest at the Default Rate from the date of expiration of said fifteen(15)days period until paid. Section 5.7 Cross Indemnity: To the extent not covered by the insurance policies described above, each Owner (the "Indemnitor") will pay, and indemnify and save harmless the other Owner (the "Indemnitee") from and against, all liabilities, losses, damages, costs, expenses (including attorneys' fees and expenses and excluding punitive damages), causes of action,suits,claims,demands or judgments of any nature arising from: (i) any injury to or death of a person or loss of or damage to property occurring on the Indemnitor's Parcel; (ii) any use or condition of the Indemnitor's Parcel; and (iii) any gross negligence or intentional tortious acts of the Indemnitor or any of his tenants, licensees, invitees, customers, agents or employees, except to the extent that such causes of action, suits, claims, demands or judgments arise out of the negligence or intentional misconduct N of the Indemnitee. a N a`� Section 5.8 Waiver of Subro te tion: Each Owner in the Project (the "Releasor") hereby releases the other Owner (the "Released") $ from any and all liability or responsibility to the Releasor or anyone claiming through or under g the Releasor by way of subrogation or otherwise for any incurred loss or damage to any person or property caused by fire or other peril or other such loss, damages, or other insured event or _ 00 negligence of the Released, or anyone for whom such Releasee may be responsible; provided, however, that this release shall be applicable and in force and effect only with respect to loss or damage occurring during such time as the Releasor's policy or policies of insurance shall contain • a waiver of subrogation endorsement,to the effect that any such release shall not adversely affect or impair said policy or policies or prejudice the right of the Releasor to recover thereunder. eo 39 ECCR'sV 1 O.DOC II�III IIIII III )IIII�I IIII�III IIIIIIII III IIIIII III IIII 10127/2006 207231A Shelley Vance-Gallalln Co MT MISC an.00 ARTICLE VI DEFAULT REMEDIES FOR THE PROJECT Section 6.1 Default: The occurrence of any one or more of the following events shall constitute a breach of these ECC&Rs by the non-performing party(the"defaulting Owner"): (A) The failure to perform any obligation of Article V hereof and to cure such failure within the time requirements cited therein which shall be a breach under these ECC&Rs without necessity of any further notice to the defaulting party other than as provided for in Article V; (B) The failure to make any payment required to be made hereunder within ten (10) business days of the due date which shall be a breach under these ECC&Rs which shall be a breach under these ECC&Rs ,or (C) The failure to observe or perform any other of the covenants, conditions or obligations of these ECC&Rs or to abide by the restrictions and requirements herein provided, other than as described in (A) above, which shall be a breach under these ECC&Rs after expiration of thirty (30) days after the issuance of a notice by a non-defaulting Owner ("Non- Defaulting Owner") specifying the nature of the default claimed. CL t0 Section 6.2 Remedies for all Owners: co C Each non-defaulting Owner shall have the right to prosecute any proceedings at law or in equity N S® against any Owner or any other person for breach of any easement or restriction benefiting such non-defaulting Owner. Such proceeding shall include the right to restrain by injunction any such violation or threatened violation and to obtain a decree to compel performance of any such easements or restrictions but shall not include any remedy for punitive damages. No Penmittee shall have the right to bring any action to enforce any provision of these ECC&Rs and no 3 enforcing Owner shall have the obligation to join any Permittee in any action to enforce these ECC&Rs. C Section 6.3 Right to Cure: > With respect to any default under Section 6.1, any Non-Defaulting Owner who is a Consenting Owner(the "Curing Owner") shall have the right, but not the obligation, to cure such default by the payment of money or the performance of some other action for the account of and at the expense of the defaulting Owner (except as otherwise limited in Article V); provided, however, 40 ECCR'sV l O.DOC I2207231 I IIIIII IIIII IIIII IIIIII IIIII III IIIIIIII II���IIII II III 1Pope: 42 r 0/27120051�07A Shelley Vance-Gallatin Cc MT MiSC 352.00 that in the event the default shall constitute an emergency condition involving an immediate and imminent threat of substantial injury or harm to persons or property, the Curing Owner, acting in good faith, shall have the right to cure such default upon such advance notice as is reasonably possible under the circumstances or, if necessary, due to such emergency, without advance notice, so long as notice is given as soon as possible thereafter. To effectuate any such cure,the Curing Owner shall have the right to enter upon the Parcel of the defaulting Owner(but not into any Building) to perform any necessary work or furnish any necessary materials or services to cure the default of the defaulting Owner. Each Owner shall be responsible for the non- performance or default of its Occupants and lessees. In the event any Curing Owner shall cure a default, the defaulting Owner shall reimburse the Curing Owner for all costs and expenses incurred in connection with such curative action,plus interest at the Default Rate,within ten(10) business days of receipt of demand, together with reasonable documentation supporting the expenditures made. Section 6.4 Cure Right Easements. CL [U Each Owner in the Project hereby grants to the other Owners an easement and license to enter son upon its Parcel for the purpose of exercising the cure rights provided under Article V of these IN a ECC&Rs. Each Grantee of the easements granted under this Section 6.4 shall defend, indemnify and hold Grantor harmless from and against all liens, losses, liabilities, costs or expenses S (including reasonable attorney's fees and excluding punitive damages) incurred in connection g with or arising out of Grantee's use of said easements, except to the extent occasioned by the Grantor's grossly negligent or intentional wrongful act or omission to act. The duration of the _ 3 easements granted under this Section shall be coterminous with the respective provisions of the ECC&Rs which give the Grantee the right or the obligation to perform the work described in this m Section 6.4. ' Section 6.5 Liens: Costs and expenses accruing and/or assessed pursuant to Section 6.3 above and the amounts a described in Section 6.1 shall constitute a lien against the defaulting Owner's Parcel. A lien under this Section 6.5 or under Article V shall attach and take effect only upon recordation of a claim of lien in the applicable real estate records office of the county in which the said Parcel is located, by the Curing Owner or Curing Party making the claim. A lien may attach only after a 41 ECCR'sV LO.DOC IIIIII IIIII IIIII IIIIII IIIII III IIIIIIII III��l��l III IIII 2207266 31A Shelley Vance-Gallatin Co MT MISC 302.00 final and non appealable judgment has been granted awarding a lien. The claim of lien shall include the following: (A) The name and address of the lien claimant; (B) A statement concerning the basis for the claim of lien and identifying the lien claimant as a Curing Owner and/or Curing Party; (C) An identification by name and address (if known) of the Owner or reputed Owner of the Parcel or interest therein against which the lien is claimed; (D) A description of the Parcel against which the lien is claimed; (E) A description of the work performed which has given rise to the claim of lien; (F) A statement itemizing the total amount due,including interest; (G) A statement that the lien is claimed pursuant to the provisions of these ECC&Rs, reciting the date,book and page of recordation hereof. The notice shall be duly acknowledged and contain a certificate that a copy thereof has been n served upon the Owner against whom the lien is claimed, by personal service or by mailing d' pursuant to Section 7.4 below. The lien so claimed shall attach from the date of recordation Go 0 ID tr solely in the amount claimed thereby and maybe enforced in any judicial proceedings allowed by IN a law, including without limitation, suit in the nature of a suit to foreclose a mortgage or mechanic's lien under the applicable provisions of the law of the State in which the Shopping � A Center is located. Section 6.6 Cumulative Remedies: All of the remedies permitted or available to a Consenting Owner under these ECC&Rs or at law or in equity shall be cumulative and not alternative, and invocation of any such right or remedy shall not constitute a waiver or election of remedies with respect to any other permitted or gavailable right or remedy. Section 6.7 No Waiver: No delay or omission of any Owner in the exercise of any right accruing upon any default of any other Owner shall impair any such right or be construed to be a waiver thereof, and every such right may be exercised at any time during the continuance of such default. No waiver by any Owner of any default under these ECC&Rs shall be effective or binding on such Owner unless made in writing by such Owner and no such waiver shall be implied from any omission by an 42 ECCR'sv10.D0C 11111111I IIIIIIIIII 2207231 66III�� of Shelley Vanoe-Gallatin Co MT MISC 392.00 Owner to take action in respect to such default. No express written waiver of any default shall affect any other default or cover any other period of time other than any default and/or period of time specified in such express waiver. One or more written waivers or any default under any provision of these ECC&Rs shall not be deemed to be a waiver of any subsequent default in the performance of the same provision or any other term or provision contained in these ECC&Rs. Section 6.8 No Termination for Breach: No breach, whether or not material, of the provisions of these ECC&Rs shall entitle any Owner to cancel, rescind or otherwise terminate these ECC&Rs, but such limitation shall not affect, in any manner, any other rights or remedies which any Party may have hereunder by reason of any breach of the provisions of these ECC&Rs. Section 6.9 Limitation of Liability on Transfer of Title: Notwithstanding the foregoing, any person acquiring fee or leasehold title to a Parcel, or any portion thereof, shall be bound by these ECC&Rs only as to the Parcel or portion of the Parcel acquired or possessed by such person. In addition, such person shall be bound by these ECC&Rs only during the period such person is the fee leasehold Owner or occupant of such Parcel or N portion of the Parcel; and, upon conveyance or transfer of the fee or leasehold interest shall be No 00 ,� released from liability hereunder, except as to the obligations, liabilities or responsibilities that 0 ~ accrue prior to such conveyance or transfer. Although persons may be released under this N' Section 6.9, the easements, covenants and restrictions in these ECC&Rs shall continue to be n benefits to and servitudes upon said Parcels running with the land. Section 6.10 Attorneys Fees: In the event of a breach hereof,the non-prevailing Owner shall pay the reasonable attorneys fees tE of the prevailing Owner. I o ARTICLE VII MISCELLANEOUS r u Section 7.1 Estoppel Certificates: Each Owner in the Project shall upon not less than thirty(30) days from receipt of written notice from the requesting Owner execute and deliver to the requesting Owner a certificate in recordable form stating that (i) either these ECC&Rs are unmodified and in full force and effect 43 ECC R'sV 1 O.DOC IIIIII IIIII IIIII IIIIII IIIII III IIIIIIII������II� II 2207231 IIIII 07A Shelley Vance-Oallatln Cc MT MIBC 302.00 or are modified (and stating the modification); and (ii) whether or not such Owner has sent any notice of any default to any other Owner under these ECC&Rs. Section 7.2 Term and Perpetuity: The agreements, conditions, covenants, and restrictions created and imposed herein shall be effective upon the date hereof and shall continue in full force and effect, to the benefit of and being binding upon all Owners, their heirs, executors, administrators, successors, successors-in- title, and assigns until the expiration of sixty (60) years from the date hereof, unless terminated by the consent of all the Owners pursuant to a writing recorded in the real property records of the county and state in which the Project is located. Said agreements and restrictions shall be unaffected by any change in the ownership of any real property covered by these ECC&Rs or by any change of use, demolition, reconstruction, expansion or other circumstances, except as specified herein. Notwithstanding the foregoing, the easements contained herein binding and benefiting the Parcels shall be perpetual and shall run with the land. Upon termination of the agreements, conditions, covenants and restrictions of these ECC&Rs, all rights and privileges derived from and all duties and obligations created and imposed by the provisions of these ■A N � ECC&Rs, except as related to the easements cited and mentioned herein, shall terminate and moo_ r^ have no further force or effect. N a Section 7.3 Amendment: Na� These ECC&Rs may not be amended except by agreement of the Consenting Owners in writing. Any amendment that would materially and substantially change the easements granted under p Article 2, the uses permitted under Article 3, or the development requirements of Article 4 shall rr require the prior written consent of any Owner reasonably likely to be materially adversely impacted by such amendment,which consent shall not be unreasonably withheld, conditioned or delayed more than thirty (30) days. If such Owner from which consent is sought does not grespond within the foregoing thirty (30 day period, the Owner seeking consent shall send out a second notice stating within such notice that, if the Owner does not respond within ten(10)days, such Owner will be deemed to have consented to the request(s) of the requesting Owner. If such Owner does not respond to the second notice within ten(10) days of receipt thereof, such Owner is deemed to have consented. 44 ECCR'sV 1 O.DOC I I IIIII IIIII IIIII IIIIII IIIII III IIIIIIII III IIIIII III IIII 2207231 R Section 7.4 Notices: Shelley Vance-Gallatin Cc MT MISC 392.00 Any notice or invoice required or permitted to be given under these ECC&Rs shall be in writing and shall be deemed to have been given upon deposit in the United States Mail as Certified Mail, Return Receipt Requested, postage prepaid or deposit with a nationally recognized overnight delivery service, and addressed to the Party being notified at the address given below (or such other address which any party may designate for itself from time to time hereafter by written notice to the other Party). Upon change of ownership of any Parcel,the new owner shall provide notice to the Consenting Owners of such change. Saccoccia II: Saccoccia II,LLC Philip Saccocia,Jr. 1234 Springhill School Road Belgrade,MT 59714 With a copy to: Donald E.Theriot Bordelon,Hamlin and Theriot 701 South Peters St. New Orleans,LA 70130 a •A N ��` Saccoccia III: Saccoccia,III,LL CIO o e Philip Saccocia, Jr. P-:9 1234 Springhill School Road N ao Belgrade,MT 59714 r� a- a � o With a copy to: Donald E.Theriot Bordelon,Hamlin and Theriot 701 South Peters St. La New Orleans,LA 0130 r Lowe's: Lowe's HIW,Inc. Box 1111 (Highway 268 East,North Wilkesboro,North Carolina 28659) North Wilkesboro,North Carolina 28656-0001 Attention: Property Management Dept. (REO) 45 ECCR'sV 10.DOC 2Z'231 IIIIII II�II IIIII IIIII IIIIN �10�127120061161807R Shelley Vuroe-callaUM Cc MT MISC S92.00 Copy to: Lowe's HIW,Inc. Box 1111 (Highway 268 East,North Wilkesboro,North Carolina 28659) North Wilkesboro,North Carolina 28656-0001 Attention: Legal Department(REO) Section 7.5 Ground lessee Assim ment: The rights and obligations of any Owner hereunder may be assigned in whole or in part to one or more ground lessees which rights and obligations shall be expressly assumed by such ground lessee or lessees for the term of the ground lease or leases between such Owner and such ground lessee or lessees. Section 7.6 No Covenant to Continuously Operate: The Owner of the Lowe's Parcel is not obligated to continuously operate a business on the Lowe's Parcel and, specifically, is not obligated to continuously operate or operate for any specific period of time a Lowe's building supply or home improvement retail warehouse or any store on the Lowe's Parcel. Nothing contained in these ECC&Rs shall be construed, interpreted or otherwise read to require the Owner of the Lowe's Parcel to operate a business on the Lowe's Parcel or to prevent the Owner of the Lowe's Parcel from closing its business on the Lowe's Parcel. Section 7.7 SeverabilitY: o0an In the event any provision or portion of these ECC&Rs is held by any court of competent �KN njurisdiction to be invalid or unenforceable, such holding will not affect the remainder hereof, and athe remaining provisions shall continue in full force and effect to the same extent as would have been the case had such invalid or unenforceable provision or portion never been a part hereof. g Section 7.8 No Public Dedication: IE Nothing contained herein shall be deemed or implied to be a gift, grant or dedication of the 5 Project, the Shopping Center,or any portions thereof, to the general public, or for any public use or purpose whatsoever. Except as may be specifically provided herein, no right, privileges or = immunities of any Owner hereto shall inure to the benefit of any third-party, nor shall any third- party be deemed or considered to be a beneficiary of any of the provisions herein contained. a 46 ECCR'sV 10.DOC I III IIII 2207258 31 I IIIIII IIIII IIIII IIIIII IIIII III Iillllll���IIIII Section 7.9 Counterparts: Sh4116Y Y'nQ°-c.ttatln Cc MT MISC 392.00 These ECC&Rs may be executed in one or more counterparts, each of which shall be deemed an original and all such counterparts shall constitute one and the same instrument. Section 7.1 Q Relationship of the Parties: Nothing contained herein shall be construed or interpreted as creating a partnership, joint enterprise or joint venture between or among the Parties hereto or the Owners. It is understood that the relationship between the Parties hereto and Owners is an arms length one that shall at all times be and remain that of separate owners of real property. No Party hereto nor any Owner shall have the right to act for or on behalf of another Party or Owner, as agent or otherwise, unless expressly authorized to do so by separate written instrument signed by the Party or Owner to be charged or bound, except as otherwise specifically provided herein. IN WITNESS WHEREOF, the Parties hereto have executed and delivered these ECC&Rs as of the day and year first written above. [Remainder of Page heft Intentionally Blank; Signatures on Following Pages] as t0 "— Ch o o G 1I0 N N$� N•- a— m a - U w_ r = i � O U • v g � t 47 ECCR'sVI O.DOC AWN. .� 01/07/2002(eesements, Covenants,Conditions and Restrictions I IIIIII IIIII IIIII IIIIII IIIII III��IIIII III(IIIII III IIII 2207231 0of58 Shelley V■noa-Gallatin Co MT MISC 392.00 Signature Page for Lowe's (ECC&Rs): LOWE'S: Lowe's HIW, Inc., a Washington corporation Attest: t'By: Name: vin D. Benner Name: Title: fst�lnt Sat-..rP'i~~� Title: David E. Shelton ire 5 Senior Vlce President STATE OF NORTH CAROLINA ) )Ss. COUNTY OF WILKES ) ON THIS 0a.L day of b4o i)e( 2005, befo e me, the undersigned, a Notary Public in and for said County and State, personally appeared - to me personally known to be the person described in and who executed the foregoing instrument, who, being by me first duly sworn, stated that he/she is the `��. V Pfe lj en �n of LOWE'S HIW, INC., a Washington corporation, and that he/she executed such instrument on coin e behalf of said corporation by authority of its board of directors, and said person acknowledged to a me that he/she executed such instrument as the act and deed of said corporation. N IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the : day and year last above written. a a Notary P c Printed Name OFFtCKLSEAL Ic SHEILA H.VANNOY My Commission Expires: NOTARY PUBLIGNORTH CAROI.INA COUNTY OF WILES aMY c«ffllisw — a 48 ECCR•sV 10.UOC 2207231 III IIIII IIIIII IIIII���illlllllIIIIIIIIIIIIIIII Page 51 i 56 012712006 11:07A lllllllll Signature Page for Saccoccia II(ECC&Rs): lahluoy vane-a.tl.tin co MT Misc 392.00 SACCOCCIA Il: By: N Title: STATE OF ) ss. COUNTY OF&LUOLn ) ON THIS L�day of Ch-k\1-x(` 200.E befor me, the undersigned, a Notary Public in and for said County and State, personally appeared to me personally known to be the person described in and who executed the foregoing instrument, who, being by me first duly sworn, stated that he/she is the of ���� 5 a�� L1 C. , and that he/she executed s ch instrument on behalf of said corporation by authority of its board of directors, and said person acknowledged to me that he/she executed such instrument as the act and deed of said corporation. CO n- IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year last above written. N a Notary Public d' Printed Name: e no My Commission Expires:CEO•4Z ZOO(D Kris Harriman 2 Notary Public for the, State of Montane: �� 96r fining at Bozeman. Montana N A R R/,��i My Commiswon Expire;:Aucjimt 1,, 7OOf; ARIlq�'. * �-.� .' OF tAC), �\ 49 ECCR'sV 1 O.DOC IIIIII IIIII IIIII IIIIII IIIII II�IIIIIIII I�I IIIIIII�I IIII 2207231A Signature Page for Saccoccia III(ECC&Rs): Bhalley Vance-Gallatin Co MT MISC 392,00 SACCOCCIA III: By: Name. Title: 1,,n.A STATE OF tOT� ) )ss. COUNTY OF&a-\ChA ) ON THIS Sk day of �V . 200.� before me, the undersigned, a Notary Public in and for said County and State, personally appeared to me personally known to be the person described in and who executed the foregoing r instrument, who, being by me first duly sworn, stated that he/she is the �tiL— of a 'hflrm�-ti�p l�l C , and that he/she executed on 00 o behalf of said corporation by authority of its board of directors, and said person acknowledged to Ca me that he/she executed such instrument as the act and deed of said corporation. IN N a IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the i day and year last above written. A Notary PublicU \� Mtn Printed Name: My Commission Expires:()S >,Z,.Z:UG(9 e Kris Harriman y No4.ry Public,for the State of Montana e.t !3ozoin2n, Aiontana t\A R R/,1�9 i�i My Conuni;sior, fc%Firog August 12,2006 � > �O7AR/,g4 . %;'For tAoo 50 ECCIVsV IO.DOC I I�I IIIIII IIIII III IIIIIIII III IIIIIII II IIII 2207231A I I��III III II Schedu Shelley Vance-Gallatin Cc MT MSC 302.00 Legal Description Lowe's Parcel Lot 2B1 of Certificate of Survey 1215 G.located in Section 1, Township 2 South, Range 5 East, P.M.M., Gallatin County, Montana. a W N Y/CO r o io gD N ao Na- a aa� � o o .~i aaa� aa� � O 5 i III 2207231 11111111611, 11111111111111111111 10�/27/2005{16807A Shelley Vance—Gallatin Cc MT MISC 322.N Schedule II Legal Descriptions Seller Commercial Parcel and Seller Adjacent Parcel Lot 2B2 of Certificate of Survey 1215_G_,located in Section 1,Township 2 South, Range 5 East, P.M.M.,Gallatin County, Montana divided and referred to as follows: SELLER COMMERCIAL PARCEL LEGAL DESCRIPTION Beginning at the Northwest corner of Section 1,Township 2 South,Range 5 East,P.M.M.; thence S86°59'22"E along the North line of said Section 1, a distance of 796.36 feet;thence leaving said section line, SO1°49'03"W a distance of 377.60 feet;thence N88°10'57"W a distance of 796.18 feet a point on the West line of said Section 1;thence NO1 149'03"E along said West line a distance of 394.18 feet to the Point of Beginning. Said tract contains 7.05 acres,more or less, and is subject to all easements and/or reservations and/or dedications existing, shown,or of record. SELLER ADJACENT PARCEL LEGAL DESCRIPTION Commencing at the Northwest corner of Section 1, Township 2 South, Range 5 East, P.M.M.; thence S86°59'22"E along the north line of said Section 1 a distance of 796.36 feet to the Point of Beginning; thence S86°59'22"E continuing along the north line of said Section 1 a distance of qr.� 84.41 feet; thence leaving said Section line, S02°44'53"W a distance of 60.47 feet to a point on 00 0 1 the southerly right of way of Baxter Lane; thence along said southerly right of way of Baxter 0.m Lane the following two (2) courses; S86139'20"E a distance of 197.82 feet to the beginning of a N 752.42 foot radius tangential curve concave to the southwest; thence along said curve a distance CV am of 296.36 feet to the NW corner of Tract 2A of Certificate of Survey (COS) 1215F, said point = also being the NE corner of TRACT 1 B2 of COS 1215E;thence SO1°14'12"W along the westerly line of said Tract 2A of C.O.S. 1215F a distance of 1151.87 feet to the NE corner of Lot 5 of BRIDGER PEAKS VILLAGE SUBDIVISION, said point also being the SE corner of said TRACT 1B2; thence N89°03'24"W along the northerly line of said Lot 5 a distance of 602.68 feet; thence NO1°49'07"E leaving said northerly line a distance of 83.86 feet to the beginning of a 290.00 foot radius tangential curve concave to the southeast; thence along said curve an arc length of 75.92 feet; thence N16°49'03"E a distance of 7.90 feet to the beginning of a 315.00 foot _ radius tangential curve concave to the northwest; thence along said curve an arc length of 82.47 feet; thence NO °49'03"E a distance of 1045.71 to the Point of Beginning. Said tract contains 16.17 acres,more or less, and is subject to all easements and/or reservations C : and/or dedications existing, shown,or of record. m 1111111 IN Page: 55 11111 2207231 11IIIIIIIIIII1111111IIIIII ,,,27,20 of 6S 06 11.07R Shallay Vance-Gallatin Cc MT MISC 392.00 Schedule III Legal Description Lot 2 Lot 2B3 of Certificate of Survey 1215 G, located in Section 1, Township 2 South, Range 5 East, P.M.M.,Gallatin County,Montana. a to tea$ ep N5� r a� S � j J U w C —art T N �. -Oft., 1I �����11111111111111,, j 11111111III1111111II11111207231 IA Shelley Vance-Gallatin Cc MT MI9C 992.00 N.19TNAYENUE ! WEST mn I� I Ir I I - m _o z N 1 v 1 z , 1 D II I Mo 15 d �M 1 r _ 1 s N d I�I�111111111 �111111111 1 1 � I,1,1,111 1 I I I 1 I,1,111,I,II11 _ to ; II 1 O m Z = V s c m - . Dotes RR150N �� t.ovres of BOZEMAN LOWSI 5' E