HomeMy WebLinkAboutDeclaration of Restrictive Covenants2007070840 DECLARATIO $28.00
12/21/2007 01:42:48P 7 PGS
Jennifer J Hayden
HAMILTON County Recorder IN
Recorded as Presented
Cross Reference Instrument No. 2004-41560; 2004-43746; 2004-43745; 2006-12154
DECLARATION OF RESTRICTIVE COVENANTS
THIS DECLARATION OF RESTRICTIVE COVENANTS (this "Declaration") is made as of
the .;� i day of J CeeP . , 2007, by DUKE CONSTRUCTION LIMITED PARTNERSHIP,
an Indiana limited liability company (collectively, 'Declarant").
RECITALS
A. Declarant is the owner in fee simple title to the real property described on Exhibit A
attached hereto and made a part hereof (the 'Real Estate").
B. Effective as of the date hereof, Declarant and Best Buy Stores, L.P., a Virginia limited
partnership ("Best Buy") are entering into an amendment to that certain lease dated January 30,
2006, between Duke and Best Buy (the "Best Buy Lease") which, among other things, removes that
portion of the Real Estate commonly known as Block F (the "Outlot") from the definition of
"Shopping Center" (as that term is defined in the Best Buy Lease).
C. The Real Estate is encumbered by that certain Memorandum of Lease dated May 11,
2006 and recorded June 13, 2006, as Instrument Number 2006000033578 ("Memorandum") between
Duke and Best Buy.
D. The Memorandum memorializes the Best Buy Lease.
E. Declarant now desires to subject the Outlot to certain conditions, covenants and
restrictions provided in the Best Buy Lease which are more particularly hereinafter set forth.
NOW, THEREFORE, in consideration of the foregoing premises and the following
covenants and restrictions, Declarant hereby declares as follows:
1. Restrictions. From and after the date hereof, until the date on which the Best Buy
Lease expires or is terminated and the Memorandum released, no portion of the Outlot shall be used
in violation of those Exclusivity and Use Restrictions more particularly set forth in Section 4 of the
Memorandum (a copy of which is attached hereto as Exhibit B and incorporated herein by reference).
In addition, to the extent any other provisions in the Best Buy Lease govern the use and operation of
the Outlot as part of the Shopping Center, including, without limitation, any height restrictions or
other restrictions for the benefit of Best Buy with respect to improvements located on the Outlot,
such restrictions shall continue to apply to the Outlot, notwithstanding the fact that, pursuant to the
amendment, the definition of "Shopping Center" under the Lease will no longer include the Outlot.
2. Covenants to Run with the Land. The grants, obligations, restrictions, benefits and
burdens created by this Declaration shall run with the Real Estate and the Outlot and any interest
therein, or any part of the Real Estate and the Outlot, hereinafter transferred, conveyed, assigned or
mortgaged, as the case may be, whether or not expressly described in any instrument evidencing any
such transaction. Best Buy, its successors or assigns, and all of the owners, from time to time, of the
Real Estate shall be entitled to enforce against the owner from time to time of the Outlot, by all
remedies available at law or in equity, including, without limitation, injunctive relief, the restrictions
and covenants set forth in this Declaration.
3. Severability. The illegality, invalidity or unenforceability under law of any covenant,
restriction or condition or any other provision of this Declaration shall not impair or affect in any
manner the validity, enforceability or effect of the remaining provisions of this Declaration.
4. Applicable Law. This Agreement shall, in all respects, be governed, construed,
applied and enforced in accordance with the laws of the State of Indiana including without limitation,
matters affecting title to all real property described herein. If any party brings an action against any
other party seeking to enforce this Declaration, the prevailing party in the action shall be entitled to
collect the costs of the action, including reasonable attorneys fees, from the non -prevailing party.
5. Amendment in Writing. The provisions of this Declaration may not be terminated,
modified or amended, except pursuant to a written agreement in recordable form entered into by each
of the then Owners (as hereinafter defined) and Best Buy.
6. Entire Agreement. This Declaration constitutes the entire understanding and
agreement among the parties and no representations have been made to induce any party to enter into
this Declaration except as expressly set forth herein.
7. Owners. As used in this Declaration, each owner of record from time to time of all or
any portion of the Real Estate and the Outlot are referred to herein singly as an "Owner," and
collectively as the "Owners."
8. Termination. This Declaration and the restrictions applicable to the Real Estate shall
automatically terminate upon the expiration or earlier termination of the Best Buy Lease and release
of the Memorandum. Although such termination shall occur automatically, the Owner of the portion
of the Real Estate in which the Premises under the Best Buy Lease are located shall promptly
following the event causing termination or upon reasonable request by Declarant, execute such
documents as may be reasonable necessary to evidence the termination of this Declaration.
[Signature line on next page]
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IN TESTIMONY THEREOF, witness the signature of the undersigned as of the date first
hereinabove written.
"DECLARANT"
DUKE CONSTRUCTION LIMITED PARTNERSHIP,
an Indiana limited partnership
By: Duke Business Centers Corporation, an Indiana
corpo • tion, iq general partner
By:
Printed: g�� RoL�q
Title:
v t CE piv�s , "JAI)a-j�- Ptcv. r4
STATE OF INDIANA )
) SS:
COUNTY OF HAMILTON )
Before me, a Notary Public in and for said County and State, personally appeared
e�F �cr b�nc� , by me known and by me known to be the V' \ - of Duke
Business Centers Corporation, an Indiana corporation, the general partner of Duke Construction Limited
Partnership, an Indiana limited partnership, who acknowledged the execution of the foregoing on behalf of
said partnership.
WITNESS my hand and Notarial Seal this a day of , 2007.
.R,PNN�ONq''%�
C� '9 Notary ublic
�Tq,� ' ��'�� Leigh Ann Conaway Notary blic
:.,� •1 A . �� state of Md
• �C (Printed Signature) My Commission Expims�FAay 10, 2008
? _ , My County of Residence: Hamilton
My Commission txpfkes. •
My County of Residen do
I affirm, under penalties for perjury, that I have taken reasonable care to redact each Social Security
number in this document, unless required by law. (George H. Abel, II)
This instrument was prepared by and after recording, return to: George H. Abel, I1, Sr. Corporate Attorney,
Duke Realty Corporation, 600 East 96th Street, Suite 100, Indianapolis, Indiana, 46240.
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Exhibit A
Lot 1 and Block F in the Secondary Plat for West Carmel Marketplace, an addition in Hamilton County,
Indiana, recorded September 26, 2006, in Plot Cabinet 4, page 149 as Instrument No. 200600056955,
corrected by a Certificate of Correction recorded December 5, 2006 as Instrument No. 200600071882, in the
Office of the Recorder of Hamilton County, Indiana, and corrected by a Certificate of Correction recorded
December 27,2006, as Instrument No. 2006076620, in the Office of the Recorder of Hamilton County,
Indiana.
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Exhibit B
(See Attached)
r =Ty use and Ord repr=ew, warrants
and coven acts to and with Tenant that Tenant may lawfully use the Premises for sales, rental,
service and wart hawing (and if applicable, installation in motor vi Wdes) of the product
categories listed in the next sentence, other products typically sold in the majority of Tenant's
stores, and ' thereafrtar for mylawful retail use not specifically prop &ed by the List of
Exchnives (if any) attached to the Lease as fjhj'kLH and the list Of Prohibited Uses attached to
the Lease a: Z&WW L Except as to books and magazines, sporting equipment and related items,
and tM (rich Product c ""Pries Tenant may non -exclusively sell but landlord may repeat
wid 1 restric dO4 Landlord shall not permit any person or entity other, than Tenant (or
Tames parent company, aiyilift assignee, sublessee and snip) in space leased dizady or
Y frosts Landlord in the Shopping Center, to sell, raft, service and/or warehouse (and, if
—.0-6-2, in" in motor vehicles) the following product categories ("Tenant's Product
CwWrift"): dccwom equipment or appliances (inchuhing, without limitations, televisions
stweM radios and dv+d or video machines ma' '
)' la household (including, without
limiNdOU fft=M, stoves, microwave ovens, dishwashers washers
P�o� OO and Pals, computer software; car radios,stereos,
s, and dryers r
phones; mtertairstnent wftwwe, including compact discs. music videos, � � dec9cs or
tapes; accessories and connectors for '000UM
cable s products sold by Tenant (including, without limit�ution,
urge Prot�ectora, cables, wires and battosies); telephones, telecopy, facsimile
and Photocopy machined; Photognlphic cameras or equipment; office Wit, 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; and/or any other related
items carried in a majority of Tenant's stores, without Tenant's Prior written consent, which ,may
be granted or withheld in Tenant's sole and absolute discretion. Notwithstanding the foregoing,
Landlord shall be allowed to lease space to an emtity that sells, services and/or warehouses some
of Tenant's Product Categories ad an incidental part of their business, provided that said entity
devotes no more than ate thoumd (1,000) sgaaae feet of space (including one-half of adjacent
aisle space) to the sale, servicing or warehousing of any one, all or any combination of Tenant's
Product Categories. Furthermore, subject to the rights of Existing Tenants, Landlord shall not
Pit any Perm or entity other than Tarot (or Tenant's parent company, affiliate, assignees,
y _ a radius of
one (1) mile of the Shopping Center to operate it premises as a consumer electronics store.
Tenant shall also 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
Pnmises for a non-alcoholic beverage kiosk or bar, including suing area, with food, snick and
bdwy itezos incidental thereto. "Landlord"% for purposes of Article 30 of the Lease, shall be
defined to include Landlord, and (i) if Landlord is a corporation, its prind1W shareholders; or (H)
if Landlord is a partnership, its partners and any principal shareholders or partniars of any partner
which is a corporation or shareholder•, or (iii) if Landlord is a trust, the beneficiaries of any such
trust, including the principal shareholders or partners of any beneficiary which is a corporation or
treat, all of whom shall execute an agreement to be bound to Article 30 of the Lease. In no event
shall Tenant be bound by any exclusives granted by L,achdkhrd to any other pasty or occupant
without Tenant's prior written consent, which may be granted or withheld in Tenant's sole and
absolute discretion.
Tenant shall (i) use and maintain the Premises and conduct its business thereon in a careful, safe,
clean and reputable meaner; (ii) comply with all laws, rules and regulations, orders, ordinances,
directions and requirements of any govenamental authority or agency having jurisdiction over the
Premises now in force or which may hereafter be in force, including without limitation those
which shall impose upon Tenant or the Premises any duty with respect to or triggered by a
change in the use or occupation of the Premises by Tenant, or any improvement or alteration to
the Premises by Tenant (iii) Tenant shall use "good faith" d rarts to comply with the reasonable
rules and regulations established by Landlord including the Rules and Regulation set forth in
Exhibit J attached to the Lease, as may be reasonably amended from time to time by Landlord on
reasonable notice to Tenant; (iv) use its "good faith" efforts to cause its agents, employees,
customers, and invitoes to comply with the reasonable rules and regulations from time to time
established by Landlord for the benefit of the Shopping Canter, and (v) pay area discharge when
due all taxes and charges imposed upon the conduct of its business in the Premises and all
property taxes imposed upon its fixtures, equipment, merchandise and other personal property on
the Premises.
Tenant shall not: (a) do or permit anything to be dare in or about the Premises or Common
Areas which will in any way materially obstruct or interfere with the rights of other tenants or
occupants of the Shopping Center or injure or annoy them; or (b) allow any waste, damage or
nuisance on the Premises, or use or permit the use of the Premises for any activity of a type
which is not generally considered appropriate for Shopping Centers conducted in accordance
with good and generally accepted standards of operation.
Tenant shall not use or permit the use of the Premises in whole or in part for any use set forth on
the last of Prohibited Uses attached to the Lease as Exhibit L