HomeMy WebLinkAboutA012 - Reciprocal Easement and Operation Agreement dated October 14, 2002 0
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Best Buy#
INST.NO. Or
PREPARED BY AND STORY COUNTY,IO1R1A h (�
AFTER RECORDING FILED FOR RECORD
RETURN TO: ✓ jl-��4KOCT 2 4 2002 PMM
James E. Istas, Esq. D
SUSAN L VANDE KAMP,Recorder G
It. Best Buy Stores, L.P.
4 c/o Best Buy Co., Inc. BUD.FEE s--
7075 Flying Cloud Drive
Eden Prairie,MN 55344
RECIPROCAL EASEMENT AND OPERATION AGREEMENT
by
Best Buy Stores,L.P., a Delaware limited partnership
("Best Buy")
for real property at
South Duff Avenue,
Ames,Iowa
TABLE OF CONTENTS
SECTION PAGE
1. COMMON AREAS...........................................................................................................................................2
2. BUILDINGS......................................................................................................................................................3
3. REPAIR AND MAINTENANCE OF COMMON AREAS...............................................................................6
4. SIGNS................................................................................................................................................................8
5. LAND USE........................................................................................................................................................8
6. NATURE OF AGREEMENT..........................................................................................................................10
7. MISCELLANEOUS.........................................................................................................................................10
.EXHIBITS
A-] Legal Description of Best Buy Parcel
A-2 Legal Description of Duff Parcel
B Site Plan
C Prohibited Uses
D Borders Exclusive
E Best Buy Exclusive
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Best Buy# .
RECIPROCAL EASEMENT AND OPERATION AGREEMENT
THIS RECIPROCAL EASEMENT AND OPERATION AGREEMENT, is made as of the
14 day of October , 2002, by BEST BUY STORES, L.P., a Delaware limited
partnership ("Best Buy") for the benefit of the Best Buy Parcel and the Duff Parcel as hereinafter
described.
RECITALS
WHEREAS, Best Buy is the fee owner of the land legally described on Exhibit A-1 and
Exhibit A-2 attached hereto and graphically depicted on Exhibit B attached hereto (collectively .
"Total Parcel") which it intends upon subdividing into Lot 1 and Lot 2 of the Daniels Subdivision
First Addition.
WHEREAS, Duff Development, L.L.C. ("Duff') has a contract to acquire the land legally
described on Exhibit A-1 attached hereto and graphically depicted on Exhibit B attached hereto
("Duff Parcel"). Upon subdivision of the property, the Duff Parcel will be known as Lot 2 of
Daniels Subdivision First Addition.
WHEREAS, upon the subdivision of the property, Best Buy will remain the fee owner of
the land legally described on Exhibit A-2 attached hereto and graphically depicted on Exhibit B
attached hereto ("Best Buy Parcel"). Upon subdivision of the property, the Best Buy Parcel will be
known as Lot 1 of Daniels Subdivision First Addition.
WHEREAS,Duff Parcel and the Best Buy Parcel are contiguous tracts of land.
WHEREAS, Duff and Best Buy intend to operate (or cause the operation of) the Duff
Parcel and the Best Buy Parcel as integral parts of a mixed use retail business complex. The Duff
Parcel and the Best Buy Parcel are together hereinafter sometimes referred to as the "Shopping
Center".
WHEREAS, the parties desire to enter into this Agreement for the purposes of(i) granting
certain reciprocal easements; (ii) restricting the uses of land within the Shopping Center;_ (iii)
providing for management of the common areas of the Shopping Center; and (iv) covenanting in
other ways to enhance the integrated development and use of the Shopping Center.
NOW, THEREFORE, in consideration of the mutual covenants and agreements herein set
forth and for other good and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged by each party hereto,the parties agree as follows:
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1. COMMON AREAS.
a. Grant and Declaration of Reciprocal Easements. There is hereby granted, declared
and reserved for the mutual and reciprocal benefit of each of the Duff Parcel and
Best Buy Parcel, and any and all parts thereof and for the mutual and reciprocal
benefit of the present and future owners of such Parcels, their respective successors,
assigns, mortgagees, lessees, sublessees, employees, agents, customers, licensees
and invitees, a permanent, mutual, reciprocal non-exclusive easement and right to
use the entire parking areas and common facilities areas in the Shopping Center
intended for common use, which areas are hereinafter referred to as the "Common
Areas". The rights encompassed within this grant shall include the right to use and
enjoy all entrances, exits, driveways, parking areas, walks, service drives,
directional signs and lighting facilities located within the Common Areas of the
Shopping Center and such additional parking and common facilities as may now or
hereafter be established and constructed upon any portion of the Shopping Center,
for the purposes for which they are provided and intended, including,but not limited
to, ingress, egress, access, parking for vehicular or pedestrian traffic, and utility
lines and/or services.
b. Parking Areas. There shall at all times be provided and maintained the minimum
number of automobile parking spaces on the Duff Parcel and Best Buy Parcel to
comply with each Parcel's parking ratio required under the applicable local
ordinance relating to parking requirements. There shall be no material changes in
parking layout or pattern of traffic flow within the Shopping Center from that
depicted on Exhibit B without the prior written consent of the Responsible Owners
(as hereinafter defined).
C. Unimproved. Building Areas as Common Areas. Any portion of the permissible
building areas (ie. the areas to be occupied by the initially constructed buildings) as
defined and depicted on Exhibit B ("Permissible Building Areas") from time to time
not occupied by a building or buildings or otherwise exclusively appropriated to the
use of the Owner (as hereinafter defined) of a particular Parcel (or to the use of a
tenant(s) of such Owner), shall, until such time as construction is commenced
thereon, be deemed "Common Areas", but nothing contained in this Section 1(c)
shall be deemed to prohibit any Owner from building on any Permissible Building
Areas, even though such Permissible Building Areas may have previously been
included within the Common Areas. All areas on the Duff Parcel and the Best Buy
Parcel not falling within the Permissible Building Areas shall be deemed to fall in a
"no build area", upon which no buildings, structures or improvements (other than
paving, lighting, landscaping and signage)can be constructed.
d. Rules for Use of Common Areas. Merchandise placed on the Common Areas for
the purpose of storage is prohibited. No business may be conducted or performed
in or on the Common Areas. Notwithstanding the previous sentence, the Shopping
Center operators are permitted to conduct the retail sale of merchandise on the
sidewalk Common Areas immediately adjacent to the front of the building of
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operator conducting such sale. There shall be no distribution of flyers or circulars
in, on or from the Common Areas.
e. Temporary Use of Common Areas During Construction and for Maintenance and
Repair. In connection with work performed within Permissible Building Areas,
incidental encroachments upon the Common Areas as a result of the use of ladders,
scaffolding, storefront barricades, and similar facilities resulting in temporary
obstruction of portions of the Common Areas shall be permitted hereunder so long
as their use is kept within reasonable requirements of construction or maintenance
and repair work is expeditiously pursued. Common Areas may be utilized for
ingress and egress of vehicles transporting construction materials, equipment, and
persons employed in connection with any work provided for herein and temporary
storage of material and vehicles being utilized in connection with such construction,
subject to all of the other terms of this Agreement.
f. Barriers and Traffic Control. Except as provided in Section 1(e) above, no walls,
fences, or barriers of any sort or kind shall be constructed or maintained in the
Common Areas of the Shopping Center, or any portion thereof, which shall prevent
or impair the use or exercise of any of the easements granted herein, or the free
access and movement, including without limitation,pedestrian and vehicular traffic,
between the various Parcels; provided, however, reasonable traffic controls as may
be necessary to guide and control the orderly flow of traffic may be installed so long
as access driveways to the parking areas in the Shopping Center are not closed or
blocked and the traffic circulation pattern of the Common Areas as depicted on
Exhibit B is not materially changed or affected, unless the prior written approval of
the Responsible Owners (as hereinafter defined)is first obtained.
g. No Easements Beyond Shopping.Center. No Owner shall grant an easement or
easements of the type set forth in Section 1(a) for the benefit of any property not
within the Shopping Center without the prior written consent of each Responsible
Owner, which consent may be granted or withheld in the sole discretion of such
Responsible Owner.
2. BUILDINGS.
a. Building Areas. No buildings or structures shall be constructed or located upon any
portion of the Shopping Center except within the areas defined and depicted on
Exhibit B as"Permissible Building Areas". No building on either the Duff Parcel of
the Best Buy Parcel shall exceed forty five feet (45') in height as measured to the
highest point of said building including parapets, screening, and rooftop equipment.
b. Building Design, Construction and Maintenance. Each building or other
improvement (including signs) to be constructed, altered, remodeled, repaired or
reconstructed in the Shopping Center shall be architecturally harmonious and
compatible with the other buildings and improvements from time to time located in
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the Shopping Center. Prior to and before any commencement of construction of any
building within the Shopping Center, the Owner shall obtain the written approval of
the Responsible Owners, which approval shall not be unreasonably withheld or
delayed, as to the proposed building's elevations, exterior appearances, signage,
storefront and building design. Any modifications to the exterior of the buildings
constructed within the Shopping Center shall be subject to the prior written approval
of the Responsible Owner, which approval shall not be unreasonably withheld. No
modifications to the elevation and exterior appearances, including changes of
materials and colors, for buildings in the Shopping Center shall take place prior to
such approval. All construction, alteration, and repair work shall be accomplished
in an expeditious manner, in compliance with all laws, rules, regulations, orders,
permits, approvals and licenses of governmental authorities having jurisdiction and,
except in case of an emergency, shall not take place during the time period between
November 15 and January 10. Notwithstanding the previous sentence, construction,
alteration, and repair work within the Shopping Center performed during the period
of November 15, 2002 through January 10, 2003 shall be permitted.. The Owner
undertaking such work shall make all necessary measures to minimize any
disruption or inconvenience caused by such work. Such work shall be
accomplished in such a manner as to minimize any damage or adverse effect which
might be caused by such work to any other person or to the Parcel on which the
work is being done or the other Parcel in the Shopping Center. The Owner
undertaking such work shall repair at its own cost and expense any and all damage
caused by such work and shall restore the.affected portion of the Parcel upon which
such work is performed to a condition which is equal to or better than the condition
which existed prior to the beginning of such work. In addition, the Owner
undertaking such work shall promptly pay all costs and expenses associated
therewith and shall indemnify and hold all Owners harmless from all damages,
losses, or claims, including reasonable attorneys fees, attributable to the
performance of such work.
The Owner of each Parcel covenants and agrees to construct the building and
improvements contemplated within the Permissible Building Areas on or before
November 1,2003.
C. Maintenance of Buildings. The Owner of each Parcel in the Shopping Center shall
maintain, or cause to be maintained, in a safe, clean and tenantable condition and in
good order and repair, consistent in manner and appearance with a first-class
shopping center, all buildings, (including,but not limited to, all loading docks,truck
facilities and compactor areas) located on its respective Parcel.
d. Maintenance of Vacant Building Areas. Until such time as buildings or
improvements are constructed on any Permissible Building Areas in the Shopping
Center, each Owner. shall take or cause to be taken such measures as may be
necessary to control weeds,blowing dirt and sand, and similar matters, with respect
to the undeveloped Permissible Building Area located on its Parcel. On or before
the expiration of one (1) year following the commencement of construction on any
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of the Parcels, each Owner having unimproved Building Area on its Parcel shall at
its expense either(i) fence off such area so as to prohibit access thereto and visibility
thereof, or (ii) grade and landscape or pave such area so that such area shall be
visually harmonious with the remainder of the Shopping Center. If an Owner shall
fail to take or cause to be taken such measures upon thirty (30) days prior written
notice, the other Owners, or any of them, may take such measures and shall be
entitled to reimbursement from the Owner of said undeveloped Building Area for
their expenses in connection therewith.
e. Insurance on Buildings; Restoration. The Owners agree that commencing with the
start of construction on their respective Parcels, each Owner will keep, or cause to
be kept, all improvements in the Permissible Building Area of its Parcel insured
against loss or damage by fire, windstorm, hail, explosions, damage from aircraft
and vehicles and smoke damage and such other risks as are from time to time
included in "extended coverage" endorsements in the State of Iowa, in amounts
sufficient to restore the same to or replace them with buildings and improvement of
comparable size and of at least the quality thereof as originally designed.
f. Waiver of Subrogation. Each Owner of a Parcel in the Shopping Center, for itself,
and, to the extent it is legally possible for it to do so, on behalf of its fire and
extended coverage insurer or on its own behalf to the extent it is acting as a self-
insurer as permitted hereunder, hereby releases the other Owner(s) and their
respective tenants and occupants from any liability for (i) any loss or damage to the
property of each Owner and its respective tenants and occupants located upon or in
the Shopping Center, (ii) any loss or damage to buildings or other improvements in
the Shopping Center or the contents thereof, and/or (iii) any other direct or indirect
loss or damage caused by fire or other risks, which loss or damage under
subparagraph (i), (ii) and/or (iii) of this subsection is of the type generally covered
by standard fire and extended coverage insurance in the State of Iowa. Each Owner
shall, to the extent such insurance endorsement is available, obtain for the benefit of
the other Owners and their respective tenants and occupants a waiver of any right of
subrogation which the fire and extended coverage insurer of such Owner may
acquire against the other Owners and their respective tenants and occupants by
waiver and release shall be operative only so long as the same shall not preclude any
Owner from.obtaining insurance, and shall have no effect to the extent that it
diminishes, reduces, or impairs the liability of any insurer or the scope of any
coverage under any policy applicable to any portion of the Shopping Center of any
buildings.therein.
g. Restoration. The Owner of each Parcel shall promptly, at its cost, in the event of
damage or destruction by fire or other casualty to the building and improvements,
rebuild and / or restore said buildings and / or improvements or alternatively raze
all portions of such building and improvements damaged or destroyed and pave or
landscape over such Building Area until such time as the Owner elects, in the
Owner's discretion,to repair,restore or rebuild.
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3. REPAIR AND MAINTENANCE OF COMMON AREAS.
a. Definition of Owner and Responsible Owners. For the purposes of this Agreement
"Owner" shall mean any person who or which is the record owner of fee simple title
to a Parcel or any portion thereof which is part of the Shopping Center; provided,
however, in the event of the sale by an Owner of all or a portion of a Parcel and a
simultaneous leaseback of the Parcel or portions thereof (a "sale/leaseback"), the
seller/lessee under such sale/leaseback shall be deemed to be the "Owner" of such
Parcel or portion thereof for the purposes of this Agreement so long as it is
designated in the lease as the "Owner" for the purposes of this Agreement, and
provided further, the lessee of a Parcel or a portion of a Parcel under a ground lease
or other lease or sublease having an initial term of twenty (20) years or longer shall
be deemed to be an "Owner" of such Parcel for the purposes of this Agreement.
"Responsible Owner" shall mean the Owner of the Duff Parcel and the Owner of the
Best Buy Parcel; provided, however, that if any such Owner shall transfer, convey
or ground lease its interest in any portion of a Parcel in such a manner as to create
multiple Owners of a Parcel, then such multiple Owners shall designate one of their
number to act on behalf of all such Owners in the performance of the provision of
this Agreement, which Owner so designated shall be herein referred to as the
"Responsible Owner". Any such designation shall be in writing, duly executed and
acknowledged by all multiple Owners of the Parcel. A copy of such designation
shall be sent to each other Owner in the Shopping Center. In the absence of any
such written and mailed designation, the Owner of the largest subparcel of the
divided Duff Parcel or the divided Best Buy Parcel shall be the Responsible Owner;
provided, however, that for so long as a sale/leaseback entity is the Owner of the
entire Best Buy Parcel and Best Buy or Best Buy's assignee is the lessee of the
entire Best Buy Parcel, Best Buy or Best Buy's assignee shall be deemed to be the
Responsible Owner of the Best Buy Parcel; and provided, however, that for as long
as Borders, Inc., or affiliate, is the sublessee of the Duff Parcel it shall be deemed_
the Responsible Owner.
b. Repair and Maintenance; Payment of Taxes and Insurance. The.Owner of each
Parcel shall at all times cause. (i) the real estate taxes and assessments assessed
against the Common Areas on its Parcel to be paid before any penalty or late charge
is payable with respect thereto, (ii) comprehensive liability -insurance on the
Common Areas on its Parcel to be maintained in the amount of at least $2,600,000
with respect to bodily injury or death arising out of any one accident and at least
$2,000,000 with respect to property damage arising out of any on occurrence,
provided however, so long as Best Buy is the Owner of the Best Buy Parcel and
Best Buy's net worth is in excess of One Hundred Million Dollars ($100,000,000),
Best Buy may self-insure against the risks which would otherwise be covered by the
insurance required under Section 2(e) and 3(b); and provided however, Borders (or
affiliate) is the Owner, lessee, or sublessee of the Duff Parcel, and Borders' net
worth is in excess of One Hundred Million Dollars ($100,000,000.00). Borders
may self insure against the risks which would otherwise be covered by the insurance
under Section 2(e) and 3(b).
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C. The Owner of the Best Buy Parcel ("Maintaining Owner") shall be responsible for
the common area maintenance to be performed and shall bill the Owner of the Duff
Parcel for forty percent (40%) of the cost of the Common Area Maintenance. The
cost of the Common Area Maintenance billed to the Owner of the Duff Parcel may
include an administrative fee equal to ten percent (10%) of the Common Area costs
billed but shall not include any other charges for overhead or management. For
purposes hereof, the Common Area Maintenance shall include all required
maintenance on the Parcel except as otherwise provided in paragraph 2(c), 2(d),2(g)
and 3(b) hereof. The Maintaining Owner shall maintain the Common Area in a
safe, sightly and serviceable condition, which repair and maintenance shall include
cleaning, lighting, painting, striping, landscaping, removing garbage and trash,
removing obstructions, snow, water and ice, repairing and servicing the parking
areas, curbs, walks, driveways, utilities and drainage facilities, and directional signs
and lighting facilities as necessary from time to time and shall further include
maintenance,repair, lighting, cleaning and painting the Shopping Center pylon sign;
provided each Parcel Owner shall be responsible for the repairs and maintenance of
its sign panel.
The Owner of the Duff Parcel may elect at any time to maintain all common area on
its own Parcel. In the event that the Owner of the Duff Parcel so elects, each Parcel
Owner shall thereafter maintain the Common Area on its Parcel consistent with the
standards set forth above.
d._ Failure to Perform. In the event an Owner shall fail to perform its obligations under
Section 3(b), the Owners of the other Parcels or any of them may send notice to the
Owner and Owner's lender, if applicable, who failed to perform setting forth the
obligation which the Owner has failed to perform. In the event such obligation is
not performed within thirty (30) days after receipt of such notice (unless the Owner.
or the Owner's lender, if applicable, shall have commenced to perform the same
within such period and shall be diligently proceeding to perform the same),then the
other Owners or any one of them, or the Owner's lender, if applicable, upon fifteen
(15) days prior written notice to the Owner who failed to perform, shall have the
right to perform the same. An Owner shall not be deemed to have failed to perform
its obligations hereunder for so long as such delay is prevented due to strikes,
lockouts, inability to procure materials, power failure, acts of God, governmental
restrictions, enemy action, civil commotion, fire, unavoidable casualty or other
causes beyond the control of the Owner provided that lack of funds shall not be
deemed a cause beyond the control of the Owner.
In the event failure to perform any repair or maintenance causes an emergency,, or
performance of such repair or maintenance is necessary to prevent or relieve an
emergency, then the notice required to be given hereunder need only be such
reasonable notice, if any, as is warranted by the nature of the specific conditions
involved. If appropriate action is not timely taken by the Owner failing to perform,
the other Owners or any of them shall be entitled immediately to perform such
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repair or maintenance.
In the event an Owner performs any of the obligations of an Owner who fails to
perform as aforesaid, the Owner so performing, in addition to any other remedies it
may have, shall be reimbursed by the defaulting Owner within thirty (30) days of
presentation of the appropriate statement therefor, failing which, in addition to any
other remedies it may have, the Owner so performing shall have a lien against real
property and improvements of the defaulting Owner for the unpaid amount together
with interest thereon from the date said reimbursement was due at the rate of 19 Ream
twelve percent (12%) per annum or the highest rate permitted by law, whichever is
lower. Such lien shall be subordinate to any first mortgage on the affected property
which has been filed and is of record as of the time the lien is filed against the
affected property.
4. SIGNS.
a. Permitted Sims. The following signs shall be permitted in the Shopping Center: (i)
directional signs for guidance upon the parking and driveway areas, and (ii) exterior
building identification sign(s) of any single occupant of the Shopping Center, so
long as such signs are similar to the standard identification signs from time to time
being used by any such occupant in its other stores in similar shopping centers in the
United States, are in conformance to all local laws and ordinances, and (iii) a
Shopping Center pylon sign ("Pylon Sign") of the maximum size permitted by all
local laws and ordinances. The Owner of the Best Buy Parcel shall be entitled to
the top three-fifths (3/5) of the Pylon Sign and the Owner of the Duff Parcel shall be
entitled to the bottom two-fifths (2/5) of the Pylon Sign. Further, the Owner of the
Best Buy.Parcel shall be entitled to three fifths (3/5) of the exterior building signage
allotted to the Shopping Center and the Owner of the Duff Parcel shall be entitled to
two fifths (2/5) of the signage allotted to the Shopping Center. All cost and
expenses related to the construction, installation, lighting and maintenance of the
Pylon Sign shall be divided in accordance with each parry's fractional portion of the
Pylon Sign as specified above. Each party shall be solely responsible, at its own
cost and expense, for the fabrication and installation of its own pylon sign panel on
the Pylon Sign.
b. Sign Maintenance. Each Owner shall be responsible to maintain its building
identification sign(s) in good condition and repair.
5. LAND USE.
a. Permitted Use. Any lawful retail use excluding, however, Prohibited Uses and
Exclusives.
b. Prohibited Use. "Prohibited Uses"shall mean those uses set forth as attached hereto
as Exhibit C and are prohibited within the Shopping Center.
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C. Borders Exclusive, Except as set forth in this Paragraph c, no portion of the Best
Buy Parcel shall be (a) used for the sale of books or periodicals in any current or
future format ("Borders Products"), or (b) utilized for the operation of a "coffee
bar" in any format, except as an incidental use (collectively, the "Borders
Exclusive"). The Borders Exclusive shall not restrict or prohibit (i) the incidental
sale of books or periodicals on the Best Buy Parcel or(ii)the incidental operation of
a "coffee bar" on the Best Buy Parcel, provided that an aggregate of not more than
three thousand square feet (3,000) of the space (including one-half(1/2) of any aisle
adjacent to the area or fixture) of the floor area in the Best Buy Parcel is dedicated to
such operation and sales identified in (i) and (ii). The Borders Exclusive shall not
restrict the sale of professionally pre-recorded and packaged video entertainment
and music in all current and future formats, .CD-ROM, or other multi-media
computer software, at the Best Buy Parcel. The Borders Exclusive shall remain in
effect only so long as the Best Buy Parcel is used under any trade name for all or
any of the following primary purposes (subject to temporary cessation): the sale of
consumer, business and automotive electronic products, computers and related
hardware and software, cellular telephones, and/or household appliances
(collectively, the "Best Buy Uses"). In the event that all of the Best Buy uses cease
at the Best Buy Parcel for a continuous period of not less than one hundred eighty
(180) days, then the Exclusive detailed in Exhibit D shall be deemed to be in full
force for the benefit of the Duff Parcel and shall be deemed a restriction upon and
applicable to the Best Buy Parcel in lieu of that set forth in this Paragraph.
d. Best Buy Exclusive. Except as set forth in this Paragraph d, no portion of the Duff
Parcel shall be used for the sale or rental (including rent to own) of consumer, office
or automotive electronics products (which include, but shall not be limited to,
televisions, stereos, speakers and video recorders and players), computers and
related hardware and software, game cartridges, cellular telephones or household
appliances (which include, but shall not be limited to refrigerators, freezers,
microwave ovens, vacuum cleaners and dishwashers), or the sale and installation of
motor vehicle audio, stereo and telephone systems (all of such items being herein
collectively referred to as the Best Buy Products") ("the Best Buy Exclusive").
The Best Buy Exclusive shall not restrict or prohibit the incidental sale of the Best
Buy Products on the Duff Parcel, provided not more than an aggregate of five
thousand (5,000 square feet of space (including one-half of any aisle adjacent to the
area or fixture) of the floor area is dedicated to retail sales of such Best Buy
Products, including the sale of compact discs and other recorded music. The Best
Buy Exclusive shall not restrict the sale of professionally pre-recorded and packaged
video entertainment in all current and future formats, CD-ROM, or other multi-
media computer software, at the Duff Parcel. The Best Buy Exclusive shall remain
in effect only so long as the Borders Parcel is used under any trade name for all or
any of the following primary purposes (subject to temporary cessation): the sale of
(i) books, (ii) periodicals, (iii) video products, and/or (iv) music products (in any
current or future format of such enumerated items)(collectively, the "Borders
Uses"). In the event that all of the Borders uses cease at the Duff Parcel for a
continuous period of not less than one hundred eighty (180) days, then the
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Exclusive detailed in Exhibit E shall be deemed to be in full force for the benefit of
the Best Buy Parcel and shall be deemed a restriction upon and applicable to the
Duff Parcel in lieu of that set forth in this Paragraph.
6. NATURE OF AGREEMENT.
a. Easements Run With Land. All easements and covenants contained in this
Agreement shall run with and against the land so described and shall, except to the
extent otherwise specifically provided in this Agreement, be a benefit thereto and a
burden thereon. It is understood that any one or more of the Parcels may hereafter
be subdivided into one or more separate parcels. In such event and except as
otherwise herein expressly provided,the terms of this Agreement shall be deemed to
continue to apply to and benefit and burden the subparcels of the Parcels, or any one
or more of them, and to create the same rights, easements and obligations as
between and among such subparcels as are herein created with respect to the Duff
Parcel and the Best Buy Parcel.
b. No Dedication to Public. Nothing contained in this Agreement shall be deemed to
be a gift or dedication of any portion of the Shopping Center to the general public or
for any public use or purpose whatsoever, it being the intention of the parties hereto
that this Agreement is for the exclusive benefit of all Owners of any portion of the
Shopping Center and their successors, assigns, mortgagees; tenants, customers and
invitees, and that nothing in this Agreement, express or implied, shall confer upon
any person, other than such Owners, and their successors, assigns, mortgagees,
tenants, customers and invitees any rights or remedies under or by reason of this
Agreement. The Owners of all Parcels comprising the Shopping Center shall have
the right from time to time to close all or any portion of the Shopping Center to such
extent as may be necessary to prevent a dedication thereof to the public or the
accrual of any rights in any person,not expressly granted rights hereunder.
C. Amendment, Modification or Termination. This Agreement may be amended or
modified at any time by a declaration in writing mutually agreed to, executed and
acknowledged by all the Owners, and thereafter duly recorded in the office of the
County Recorder of the County in which the Shopping Center is located, provided
this Agreement shall not be terminated during the term hereof or amended or
modified without the prior written consent of all Owners whose interests would be
adversely affected by such amendment or modification. This Agreement shall not
be terminated, amended, altered or modified in any way without the prior written
consent of each first mortgagee then encumbering the Shopping Center, or any
Parcel thereof.
7. MISCELLANEOUS.
a. Successors. This Agreement shall be binding upon and inure to the benefit of the
parties designated herein, their heirs, executors, administrators, beneficiaries,
successors and assigns; provided that the respective Owners from time to time of the
10
P:\12000\12050\12050 REA Best Buy 10.10.02.doc �P�
Parcels forming the Shopping Center shall be liable in money damages and subject
to the action for specific performance only for breaches of the undertakings
contained in this Agreement occurring during their respective period of ownership
of each Parcel; provided further, however, that such successor-in-title to any of the
Parcels shall be subject only to an action for specific performance with respect to.
breaches of undertakings hereunder which occurred during the ownership of any
predecessor-in-title.
b. Governing Law. This Agreement shall be construed in accordance with the laws of
the State of where the Shopping Center is located.
C. Headings. The section headings in this Agreement are for convenience only, shall
in no way define or limit the scope or content of this Agreement and shall not be
considered in any construction or interpretation of this Agreement or any part
thereof.
d. No Partnership. Nothing in this Agreement shall be construed to make the Owners
partners or joint venturers or render any of said Owners liable for the debts or
obligations of the others.
e. Notices. Any notice required to be given to Duff or Best Buy pursuant to this
Agreement shall be in writing and shall be deemed duly given either(i)two (2) days
after the date .of mailing if sent by registered or certified mail, return receipt
requested, or (ii) one (1) day after the date of mailing if sent by overnight courier
service,to the following address:
If to Duff. Duff Development,L.L.C.
3103 Ingersoll Avenue
Des Moines,IA 50312
Attention: Ronald Daniels
With a copy to: Timothy Hogan,Esq.
Hogan &Fisher PLC
3101 Ingersoll Avenue
Des Moines,IA 50312
If to BB Ames: BB Ames Associates, L.L.C.
1765 Merriman Road
Akron, Ohio 44313
Attention: Edward F. Vlosky
With a copy to: Andrew R. Duff,Esq.
Amer Cunningham Co.,L.P.A.
159 South Main Street, 6°i Floor
Akron, Ohio 44308
11
PA 1 2000\1 2050\1 2050 REA Best Buy 10.10.02.doc � ��
1
If to Borders: Borders, Inc.
100 Phoenix Drive
Ann Arbor,MI 48108-2202
Attention: Vice President-Development
With a copy to: Philip J. Bowen, Esq.
Conlan McKenney&Philbrick,PC
350 S. Main Street, Suite 400
Ann Arbor,Michigan 48104-2131
If to Best Buy: Best Buy Stores,L.P.
c/o Best Buy Co.,Inc.
7075 Flying Cloud Drive
Eden Prairie,MN 55344
Attn: Legal Department-Real Estate
with a copy to: Robins,Kaplan,Miller& Ciresi
2800 LaSalle Plaza
800 LaSalle Avenue
Minneapolis,MN 55402-2015
Attn: Steven A. Schumeister,Esq.
Any party, by notice given as aforesaid, may change the address to which
subsequent notices are to be sent to such party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year
first above written.
[SIGNATURES ON FOLLOWING PAGES]
12
PAI2000\1 2050\12050 REA Best Buy 10.10.02.doc /
BEST BUY:
BEST BUY STORES, L.P., a Delaware limited
partnership
By: BBC Property Co., a Minnesota corporation,
its genera ner
By: W
Name:
Title: V c c_e.
Date: __ 10 liti jC.-4
STATE OF MINNESOTA )
) SS
COUNTY OF HENNEPIN )
On LDr,g`� ,2002,before me,bcV1 L`5•e /C N ;,� tau c �i a Notary
Public in and for said State,personally appeared PnJ r i c..l� {� • r»a ,t ,
Vic- er-f-s c ck z n'tof BBC Property Co., a Minnesota corporation, the general partner of
BEST BUY STORES,L.P., a Delaware limited partnership,personally known to me(or proved to
me on the basis of satisfactory_evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he executed the same in his authorized capacity, and that
by his signature on the instrument the person, of the entity upon behalf of which the person acted,
executed the instrument.
WITNESS my hand and official seal.
DENISE K.HEINBUCH No*Public
•�,�-, NOTARY PUBLIC-MINNESOTA
DAKOTACOUIN My Commission Expires:
My Comm.Expires Jan 31,2005
14
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Evke iT - 1
PROPERTY DESCRIPTION -- BEST BUY SITE --
OCT . 8 , 2002 :
AN IRREGULAR SHAPED PORTION OF PARCEL "X" IN
THE NORTH QUARTER OF THE SOUTHWEST QUARTER
OF THE SOUTHEAST QUARTER OF SECTION 11 ,
TOWNSHIP 83 NORTH , RANGE 24 WEST OF THE 5th
P .M. , AMES , STORY COUNTY , IOWA MORE
ACCURATELY DESCRIBED AS FOLLOWS :
COMMENCING AT THE NORTHWEST CORNER OF SAID
PARCEL "X AS SHOWN IN SLIDE 134 PAGE 5 ,
INSTRUMENT No . 02-07666 AT THE OFFICE OF THE
_ STORY COUNTY RECORDER; THENCE S00° 00 ' 00 "E
(WEST LINE OF THE SE . 1/4 OF SECTION 11
ASSUMED DUE NORTH-SOUTH) ALONG THE WEST LINE
OF SAID PARCEL "X" , A DISTANCE OF 132 . 26
FEET TO THE POINT OF BEGINNING; THENCE
S88058100"E , . A DISTANCE OF 7 . 00 FEET ; THENCE
N0-0000 ' 00"E , A DISTANCE OF 49 . 6.1 FEET ;
THENCE S88058 ' 00"E , A DISTANCE OF 173 . 92
FEET ; THENCE S00 ° 00 ' 00"W, A DISTANCE OF
38 . 68 FEET; THENCE S88058 ' 00"E , A DISTANCE
OF 441 . 63 FEET ; THENCE N01002 ' 00"E , A
DISTANCE OF 20 . 58 FEET ; THENCE S88058 ' 00"E ,
A DISTANCE OF 47 . 85 FEET ; THENCE
S01002 ' 00"W, A DISTANCE OF 20 . 58 FEET ;
THENCE S88058 ' 00"E , A DISTANCE OF 313 . 85
FEET TO THE EASTERLY LINE OF SAID PARCEL
"X" ; THENCE S19038 ' 26"E ALONG THE EASTERLY
LINE OF SAID PARCEL "X" , A DISTANCE OF
223 . 70 FEET TO THE SOUTHEAST CORNER OF SAID
PARCEL "X" ; THENCE N88058 ' 00"W ALONG THE
SOUTH LINE OF SAID PARCEL "X" , A DISTANCE OF
1059 . 46 FEET TO THE SOUTHWEST CORNER OF SAID
PARCEL "X" ; THENCE N00° 00 ' 00"E ALONG THE
. /Co
WEST LINE OF SAID PARCEL "X" A DISTANCE OF
198 . 39 FEET TO THE POINT OF BEGINNING .
SAID TRACT OF LAND BEING SUBJECT TO AND
TOGETHER WITH ANY AND ALL EASEMENTS OF
RECORD .
SAID TRACT OF LAND CONTAINS 5 . 08 ACRES MORE
OR LESS .
SAID TRACT OF LAND TO BE KNOWN AS LOT 1 IN
DANIELS SUBDIVISION FIRST ADDITION, AMES ,
STORY COUNTY , IOWA.
I
eke ta-r A �-
207 . 00 ' M N8805810011W
BORDER ' S PROPERTY DESCRIPTION :
AN IRREGULAR SHAPED PORTION OF PARCEL "X"
IN THE NORTH QUARTER OF THE SOUTHWEST
QUARTER OF THE SOUTHEAST QUARTER OF SECTION
11 , TOWNSHIP 83 NORTH , RANGE 24 WEST OF THE
5th P .M. , AMES , STORY COUNTY , IOWA MORE
ACCURATELY DESCRIBED AS FOLLOWS : BEGINNING
AT THE NORTHWEST CORNER OF SAID PARCEL "X AS
SHOWN IN SLIDE 134 PAGE 5 , INSTRUMENT No .
02-07666 AT THE OFFICE OF THE STORY COUNTY
RECORDER; THENCE S88055102"E (WEST LINE OF
THE SE . 1/4 OF SECTION 11 ASSUMED DUE
NORTH-SOUTH) ALONG THE NORTH LINE OF SAID
PARCEL "X" , A DISTANCE OF 940 . 97 FEET TO
THE NORTHEAST CORNER OF SAID PARCEL "X" ;
THENCE S19038126"E ALONG THE EASTERLY LINE
OF SAID PARCEL "X" , A DISTANCE OF 128 . 79
FEET ; THENCE N88058100"W, A DISTANCE OF
313 . 85 FEET ; THENCE N01002 ' 00"E , A DISTANCE
OF 20 . 58 FEET ; THENCE N88058 ' 00"W, A
DISTANCE OF 47 . 85 FEET ; THENCE S01 ° 02 ' 00"W,
A DISTANCE OF 20 . 58 FEET ; THENCE
N88058 ' 00"W, A DISTANCE OF 441 . 63 FEET ;
THENCE N00 ° 00 ' 00"W, A DISTANCE OF 38 . 68
FEET ; .THENCE N88058100"W, A DISTANCE OF
173 . 92 FEET ; THENCE S00000 ' 0011E , A DISTANCE
OF 49 . 61 FEET ; THENCE N88058 ' 00"W, A
DISTANCE OF 7 . 00 FEET TO THE WEST LINE OF
SAID PARCEL "X" ; THENCE N00 ° 00 ' 00"E ALONG
THE WEST LINE OF SAID PARCEL "X" , A DISTANCE
OF 132 . 26 FEET TO THE POINT OF BEGINNING .
SAID TRACT OF LAND BEING SUBJECT TO AND
. �8
TOGETHER WITH ANY AND ALL EASEMENTS OF
RECORD . SAID TRACT OF LAND CONTAINS 2 . 50
ACRES MORE OR LESS . SAID TRACT OF LAND TO
BE KNOWN AS LOT 2 IN DANIELS SUBDIVISION
FIRST ADDITION, AMES , STORY COUNTY , IOWA.
P . �9
a •
EXHIBIT B
Site Plan
[see attached]
17
P:\12000\12050\12050 REA Test Buy 10.10.02.doc
Sri).ADA N.C.ICON
6-PCc CURB — THE SITE
a Ant Ctl1TROl_JODET AWI cLmB OETA/AT 9)EwAUT. •` s9'STANDARD SPACE9'HANDICAP SPACE9'ACCESS ISLEPARKB/O LOT SMPDIG DEfAE er�i EIPw9d1.CAT Ai LOADNC 0001 BOLLARD'A'OEOORARIV BOLLARD AI SiDrE IRON Lit_Imo=20• 5AT�EWALK NAUCAP RAID DETAE vs
seessvz7 VICINITY MAP
'°g a,dr——— ————— -
s o..97.0 :. ' SCALE )'-)Doo'
SANTAW SEWER EASEMEN'
s o A,, 24 sE DAIYfEL$. a.
SUBDI�ISIOI _� \
s o kr,c A. LOT2 s; • ZONE A3 \
g
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- ._� IRm,Aw sm,va e
r a Av n' A'L10'OQ N.R ZONE Clds r L \
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roll IYT/S rY1A NP—C S SA; _ • .• " LOT 1 \ Dow ZONE C
Q •srAxa�Fan rA am0. s 6 r ti BEST BUY ix2sr - •m q3\
SANITARY SEWER EASEMENT B\
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PA
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yyQ = _ mob•` �— -------
l'JT1 ' r
ZONING: HOC (HIGHWAY-ORIENTED COMMERCIAL ZONE) GENERAL NOTES: PROPERTY DESCRIPTION
B1R0"O suatm PREPARED FOR:
T.Nt MNS Saul eE Dort RL ACCORDANCE rMI THE arr IN AYES OF
-ES-CODES.wa IOr:.ov.Os sveV�an.nar.omaa
{BONE.TRFNIY(m)SCAT Burnt4 Rvllr REGU0F AUC KILPI•AD ANO Au CODE REOURE EnIS a AOVIHCE DE NC rORA. CDYR.T r11N AY6 slaty mrn.iW
SIDE.rLRE(4)SEEr(BOwfl OE ADAs11IENr IMS WANED ocs NCS.xI aIY d PIES PLWBRIO CODE ANO THE CENMAL IDrA YEfROROUTAN AREAS A1Io YwAOPNITEs IIRRMI zAo Mcr d Uro me 9ALaCf m ra 1o:t)1Axi wTN.Yr A_
sRYA(m REOIRIEYDDs ON i SCE or LOT x) DFs LTONES,qwA sOA13 STAN SPECIPCAT FOR f1AE CONSONCDON OF P IOLIC nAMIFMRENM NL ussyom d��.
RFJN.111EIIM1(x0),FFLT 413-17F-A000 L C°N1R.ICIDR SLWL BE RCSPO14181Y FOR W LOGTpM OF AN'AND NL uTwTw--PUBLC OR
PROroSEb e1IanFIG AREA: O.A6 MITES rO A Mr�DY'JMOR IXI�G COYPiwr'U CURM A E]DS rNCN MEDRM�T ESN°w1 OI�1 I�I,E rN IL A S,o truer d INm CORr6 iV Aar,cR(a USS
PRaro•.rD vA\m AREA: orx ACRES BENCHMARK: PROPRIETOR: coNrRM10R SIANL wE C4w PRErIATw. c°NMAcmR SNYL Expose NL uTARY Cowmm W
LAOSCAPED ARE. 1 12 ACRES B[ST IAN STORES.LP. A tt OF rNE'AORN, COMB—OR AND OrrRR Sl L BE PREPARED fO w E ADJuSTWOOS AS ZONING: Hoc OAawAr-aRMD)(aA[Aa,l Zat)
=AL SITE AREA 2m ACRES T°P OF FIRE NroRANr LOCATED AT nIE NE.CORNEA OF SE I6M )5Do FLT Q DRNE NCCCSSM m A\d0 uL LANNCTS Or1A61 AND CONTRACTOR SNML r<Go—E NIL'AD nO
STREET AMD S.WIT EDEN PRILW_IIN 5S344 TORN M AOVANCE-
PROPOSE°RISC RETAIL SPACE ZODOO SF 'Af1V1Nr2 0•M rDYIIT d M SI,[rLw sNAu,Yr
EILV.....e1.S2(dM1 d Ar45 WTRILI) ],A.L roOL SHALL BE°ONE In AGCORDACE MM O.SNO cRO6 AND STAWWD^ NOIIr4 'LS A rNt11 d An d M IDPMFS_.—S
PAR M PROVIDED: 10a SPACES IS PFR 100nSF) SITE ADDRESS: NOIUim TE MESS RRN6 r—RCLILYE M CON OR FROM COYPLYIIC rlfn ANY AND ALL OaXArd4 Y1PP M YA4.'
PAIasIG PROPIXD. 90 SPACES RSL A TIC SPACES SDE BOLT On FIRE NrOIUurT LOGIED N.OR ME OPN[Al M[TEST APPNOPRYIE SAPEM1 RECUAfUMS OR PRECAIITpNS. Dr.
SIDE OF wRIEa PRaPERn lxoo sOunL Darr AVENLE
AIRS.IOTA 50010 • CONMMTOR 51LU1 OMAr1 AIIr.LAD AL REOWRED PEPIII}S rNOY fNE CITY a AYE$Aw M
UTILITY LEGEND Otv-7°.al(=of AYES aruY) siArE OF nw•PRnR ro coNsrRucRON5. .
s— sAlrtAm SEWER ON P 9LS�STIIEE'14 NOR rIMRI iNE IIIA{IC � TTRAIERS.OR sDYM REPS AK PRpPaTm '
NOTE: °o'•
55— STORY SEWEN NL MOw C UII WS SHALL BE rERMNAfE Ar rNE LOCAMN N. A Mr AREA$RICH TIYr RFM OFMARER YCITS FLUSH rlM BUYPERs Nb
O— CAS RAVE A DES— IEp By TDU s MCI cl NOr REss Mw r-o' Doc,scs.
SIDE ME BURRING SIIUL PERWIETER. T. LW OOCN.NFAW dIK PANMG,r'COMC.PAD R[Vr'wnI N0..ILARS 12•C-C S MS.
r.MR LM UTILITIES: FLOOD CERTIFICATION: �- RETAIAMG rAu a NAIo1YA,AT MC.DOCR AS RED'D RF COOC RE:7/A-11. GRAPHIC SCALE
—U/E— VWERFAOI N-MC-C �� TIIC LOFiI10N OF'THE U111I1K5 INOx:YED ON ME PIAI•S ARE MIS PRO OE RS 1OG N A ZONE'N-.'r AM'C'.AS N omo�'�
—0/E— O12RHEAD ELECTRC (0 � TAAEN MOY F]OSDIIO PU . RECORDS AND ARE APPROxI ARE OERRYPIED W rNE fEOERAI EYERGD YAr .EM NAIL W- COMPACTOR PAp AO'.10-•I'cW.PAD RONr SAYE AS TRUCK OO 0106L10
ASCERTN S E I N ME T LO EES SWNL Ir,E d MEN (jMSu CE FL NNsURN{E µ4.E COMPACTOR NEKF f0 BE m MC. • p�N�l
T— r6ETVNE LNE L T mSFORYER PAO TERRY SIZE AND LOGOw. (a IRT I
CON1RACroR f0 DETERYNE W,EMf.N ANT AmRONAI i E., ��„rSAO 1PREr1RScs KS511WRD.Fpf rYa•111E COYYUNn W DIMENSION~PLAN swr/Styr
OMW rWN 11,OSE ER_w 1NE PIANS_E BE PRESENT,
' ' /F{ I HEREBY CERr1SY RUT INS ENGINEERING OOCU"ENf*AS PREPARED 6Y ME OR UNDER VpLEssl°.w "'n'BORDERS BOOKS MUSIC&CAFE %;P
3 i S II .E n i n PPCt tt (CQ lit a n g, .3 tt L. W DIRECT PERSONAL SUPERMSION MA ANO f I AY,A DULY LICENSED PKo__,o UL w _
t Q4If� ENCINEER UNDER ME LAWS OF ME STATE OF 10w -
350I U �rPel UCENSE RENE-L DATE:OECEMHER 31.2003 jV;5 OR.'ri � ��C�rs SITE PLAN E02�
8Y: STL`/EN K.VENARD f
Ps Dines, 'J II ttT`a 5II 3 Z Z re Aucusr za7z 1 Bs.lz w.aF ..P,AWrc ADP a m) Alm
OArE' 1200 S.DUFF 0458
AMES IOWA
6CAOC7 bTA71/S SIGNED: i ARMY plRatC r✓A..>r:•cr a mr a
PHONE: (515)276-0467 FAX: (515)276-0217 FOR: ��� , MEET TOED
2
EXHIBIT C
Prohibited Uses
Neither the Duff Parcel nor the Best Buy Parcel shall be used, in whole or in part, for any or all of
the following uses or purposes:
(i) Tire,battery and automotive stores.
Automobile dealership, automobile or truck facility used for paint shop or
garages, whether for body or mechanical repair, or for the dispensing of
petroleum products.
Storage, use, or disposal, whether temporary or permanent, by Owner, its
agents, representatives, employees, licensees, tenants, subtenants, or
business invitees, or by any other person, of Hazardous Substances.
"Hazardous Substances" shall mean hazardous materials or substances as
defined in all applicable provisions of any federal regulations, amendments,
updates or superseding legislation to or for the Environmental Protection
Act, the Resource Conservation and Recovery Act, the Comprehensive
Environmental Response, Compensation and Liability Act, the Superfund
Amendments and Reauthorization Act, or the regulations promulgated
thereunder, or any other federal, state, local or other statute, law, ordinance,
code, rule, regulation, order or decree regulating, relating to, or imposing
liability or standards of conduct concerning, any hazardous substances,
hydrocarbons, hazardous materials, toxic substances or hazardous wastes_ as
defined from time to time in any other federal, state and local laws or the
regulations promulgated thereunder applicable to the property including,but
not limited to any asbestos insulation or other materials composed of or
containing asbestos.
(iv) Automobile or truck washing facility.
(v) Amusement or game rooms or similar establishments, including without
limitation the use of pinball machines, electronic games and similar
apparatus, except as an ancillary use.
(vi) Funeral home.
(vii) Laundromat.
(viii) "Adult"bookstores or cinemas or establishments for the sale of drug-related
paraphernalia. For the purposes of this subparagraph, "Adult"bookstores or
cinemas shall mean and include any establishments which sell or offer for
sale any merchandise which is distinguished or characterized by emphasis
on matter depicting, describing or related to (a) specified sexual activities
18
P:\12000\12050\12050 REA Best&ry 10.10.02.doc P
• V '
(i.e., human genitals in a state of sexual stimulation or arousal; acts of
human masturbation, sexual intercourse or sodomy); or (b) fondling of other
erotic touching of human genitals, pubic regions, buttocks or female breasts;
or (c) specified anatomical areas (i.e., less than completely covered human
genitals, pubic regions, buttocks or female breasts below a point
immediately above the top of the areola; or human male genitals, even if
completely and opaquely covered, if in a discernible turgid state). Further,
for the purposes of this subparagraph (h), establishments for the sale of
drug-related paraphernalia shall mean and include establishments which sell
or offer for sale any merchandise which is commonly used or intended for
use with or in the consumption of any narcotic, dangerous drug or other
controlled substance, including, without limitation, any hashish pipe,
waterpipe, bong, chillum, pipe screen, rolling papers, rolling devices, coke
spoons or roach clips.
(ix) As a hyper-market, food supermarket, mini-supermarket, convenience food
store, club store commonly known as warehouse clubs, membership clubs,
and/or wholesale clubs (such as, by means of example but not limitation,
BYs,Price Club, Sam's, PACE, COCTCO, Wholesale Depot, and Carrefour)
or any combination of the foregoing, in any premises in the Shopping
Center.
(x) Industrial manufacturing or for any purpose or business which is noxious or
unreasonably offensive because of the emission or noise, smoke, dust or
odors.
(xi) For the operation of a motel, hotel, tourist court or other public overnight
accommodation facility.
(xii) For the conduct of a business operation which regularly or with significant
frequency sells merchandise of the types or qualities now commonly known
as "odd lot," "over stock," "factory reject," "sample," "floor model,"
"demonstrator," "closeout," "clearance," "discontinued," "cancellation," or
"second" (but nothing herein contained shall be deemed to prohibit the
conduct in the Shopping Center of a clothing store of the type operated by
"T J Maxx," "Marshall's," or "Filene's Basement," or a store of the
cancellation-short type business).
(xiii) For any "amusement operation," so-called which term shall mean and
include any activity consisting wholly or in substantial part of the furnishing
of entertainment or amusement facilities,whether or not as a business or as a
part or aspect of a business (including, without limitation, off-track betting
parlors, billiard parlors; theaters, movie theaters, "penny arcades' so-called,
amusement games or devises (electronic or otherwise), "discos" so-called;
so-called "strip shows," and live entertainment of any kind; or for a so-
called "massage parlor," or for the business of the sale of so-called "adult"
19
P:\12000\12050\12050 REA Best Buy 10.10.02.doc
parlor.
(xiv) For any office or storage operation except the use of a total of not more than.
7,500 square feet, in the aggregate, of floor area for professional offices and
for business offices, other than as incidental to a retail operation.
(xv) For the conduct of a business operation wluch regularly or with significant
frequency sells merchandise of the types or qualities now commonly known
as "odd lot," "over stock," "factory reject," "sample," "floor model,"
"demonstrator," "obsolescent," "distressed," "bankruptcy," "fire sale," or
"damaged," "closeout," "clearance," "discontinued," "cancellation," or
"second."
(xvi) For a restaurant, grocery store, or a restaurant/bar business or alcoholic
beverage business ("bar") of any kind, including, without limitation (a) a
banquet hall business which serves its guests on a special, catered business
as distinguished from a restaurant business open to the public at large on a
random basis, and (b) a restaurant/bar business which serves alcoholic
beverages for on-premises consumption.
(xvii) For any business using outdoor space in its regular operations, such as
lumber yards,boat sales yards and the like,provided that the foregoing shall
not be deemed to prohibit the operation of a home improvement center so-
called, such as operated by Home Depot.
(xviii) Bowling alley.
(xix) Warehousing and storage, other than as incidental to a retail operation.
(xx) Health and physical fitness spas, clubs or facilities.
(xxi) Skating rink or rinks.
(xxii) Flea market.
20
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EXHIBIT D
Borders Exclusive
Tenant's Exclusive Use.
(i) Provided Tenant is not in default under this Lease following notice and the
expiration of any applicable cure period, and subject to Article.24(b)(iii), Landlord
will not, during the term of this Lease, permit any other tenant or occupant in the
Shopping Center(including,without limitation, any owner, subtenant, licensee, or
concessionaire of any portion of the Shopping Center) to engage in:
(A) the sale of (1) books, (2) periodicals, (3) video products, or
(4) music products (in any current zr future format of such enumerated
items) unless the subject matter of such items is directly related and
ancillary to the primary use of such other tenant's premises (e.g., a
computer store which sells books or periodicals dealing with computer
products), and not more than the lesser of (x) 200 square feet of surface
display area, or (y) five percent (5%) of the total gross leasable area of
such tenant's premises is devoted to the retail display of such related items
(the "Merchandise Exclusive"); or
(B) the operation of a cafd or a "coffee bar" featuring, nonexclusively,
hot and cold coffee and tea beverages in any format, whether as an
incidental or primary use (the "Cafe Exclusive"). As a clarification, and
not a limitation, to what is not prohibited by the terms of this
Article 24 )((b i)(B), the Cafd Exclusive shall not prohibit (1) the operation
of a sit-down(i.e.,providing table service) or so-called fast-food restaurant
that sells coffee, tea, or other beverages, or (2) the sale by tenants
occupying over 18,000 square feet of gross leasable area of coffee, tea, or
other beverages (that may include seating areas and incidental food items)
to their customers as a comfort or an accommodation and not as a primary
use.
(ii) The Merchandise Exclusive and the Cafd Exclusive shall not apply to any
existing tenant of the Shopping Center to the extent such tenant's lease does not
prohibit such tenant from using its premises in a manner that violates the
Merchandise Exclusive or the Cafe Exclusive; provided, however, Landlord will
agree not to amend or modify such lease in any manner that would grant such
tenant a greater right to violate the Merchandise Exclusive or the Cafe Exclusive
than such tenant presently enjoys.
e
EXHIBIT E
Best Buy Exclusive
e
Best Buy Exclusive
EXCLUSIVITY
Subject to the Prohibited Uses attached hereto as Exhibit C, Best Buy shall initially use
the Premises for sales, rental, service and warehousing (and if applicable, installation in
motor vehicles) of the product categories listed below, other products typically sold in the
majority of Best Buy's stores, and thereafter for any lawful use: electronic equipment or
appliances (including, without limitation, televisions, stereos, video recorders); major
household appliances (including, without limitation, refrigerators, freezers, stoves,
microwave ovens, dishwashers, washers and dryers); personal computers and peripherals,
computer software; car radios, stereos, tape decks or phones; entertainment software
including compact discs, music videos and prerecorded tapes; telephones, telecopy,
facsimile and photocopy machines; photographic cameras or equipment; office
equipment, supplies or furniture; books and magazines; sporting equipment and related
items; toys; any .substitutes for or items which are a technological evolution of the
foregoing items; or any other related items carried in a majority of Best Buy's stores. No
person or entity other than Best Buy shall be allowed within the Shopping Center, to sell,
rent, service and/or warehouse (and, if applicable, installation in motor vehicles) the
following product categories: electronic equipment or appliances (including, without
limitation, televisions, stereos, video recorders); major household appliances (including,
without limitation, refrigerators, freezers, stoves, microwave ovens, dishwashers,washers
and dryers); personal computers and peripherals, computer software; car radios, stereos,
tape decks or phones; entertainment software including compact discs, music videos and
prerecorded tapes; telephones, telecopy, facsimile and photocopy machines; photographic
cameras or equipment; office equipment, supplies or furniture; any substitutes for or
items which are a technological evolution of the foregoing items; or any other related
items carried in a majority of Best Buy's stores without Best Buy's prior written consent
which may be granted or withheld in Best Buy's sole and absolute discretion. In addition
to the foregoing, Best Buy shall have the right to (a) sell gourmet and other food items in
support of and incidental to the foregoing product categories and (b) use up to ten percent
(10%) of the Premises for a non-alcoholic beverage kiosk or bar, including seating area,
with food, snack and bakery items incidental thereto.
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