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Application MaterialsPlanning Division C� fIENty ADMINISTRATIVE APPLICATION Type of Review Requested Administrative Review File number: A-2017-0060 and Design Review Assigned Planner: JOS IIeG�, Related Files: Applicant Information Applicant name: TAMARA THOMPSON, THE LAND GROUP, INC. Phone: Applicant address: 462 E. SHORE DRIVE, STE 100 zip: 83616 Email: tamara@thelandgroupinc.com Ownername: GS II MERIDIAN CROSSROADS LLC Phone: Fax: Owner address: 3300 ENTERPRISE PKWY zip: 44122 Email: Agent name (e.g. architect, engineer, developer, representative): TAMARA THOMPSON Firmname: THE LAND GROUP, INC. Phone: Fax: Address: 462 E. SHORE DRIVE, STE 100 zip: 83616 Email: tamara@thelandgroupinc.com Contactname: TAMARA THOMPSON Contact address: 462 E. SHORE DRIVE, STE 100 Subject Property Information Location/streetaddress: 3499 E FAIRVIEW AVE Assessor's parcel number(s): 51109223007 Township, range, section: Project Description Phone: Fax: zip: 83616 Email: tamara@thelandgroupinc.com Project/Application Name: Crossroads Plaza Redevelopment- CZC, DES Description of work: Remodel existing building for a grocery market use. (Previously ShopKo) No changes to the parking field. 33 E Broadway Avenue, Suite 102 • Meridian, Idaho 83642 Phone: (208)884-5533 • Facsimile: (208) 888-6854 • Website: www.meridaincity.org 1 Application Information APPLICATION TYPES Accessory Use - AUP: UNCHECKED Alternative Compliance - ALT: UNCHECKED Certificate of Zoning Compliance - CZC: CHECKED Does project have prior approval?: Yes Conditional Use Minor Modification - MCU: UNCHECKED Design Review - DES: _ CHECKED Director's Determination - DD: UNCHECKED Home Occupation Statement Compliance - HOSC: UNCHECKED Limited Duration Sign - LD: UNCHECKED Private Street - PS: UNCHECKED Property Boundary Adjustment - PBA: UNCHECKED Time Extension, Director - TED: UNCHECKED Use Zone Encroachment Permit - UZEP: UNCHECKED Vacation - VAC: UNCHECKED Zoning Verification - ZV: UNCHECKED PROPERTY INFORMATION General Location: Fairview and Eagle Current Land Use: C -G Total Acreage _ 50 ZONING DISTRICTS) R-2: UNCHECKED R-4: UNCHECKED R-8 UNCHECKED R-15: UNCHECKED R-40: UNCHECKED C -N: UNCHECKED C -C _ UNCHECKED C -G: CHECKED L-0: UNCHECKED M -E: UNCHECKED H -E: _ UNCHECKED I -L: UNCHECKED UNCHECKED O -T, _ UNCHECKED . TN -C: UNCHECKED TN -R: UNCHECKED County: UNCHECKED 33 E Broadway Avenue, Suite 102 • Meridian, Idaho 83642 Phone: (208)884-5533 • Facsimile: (208) 888-6854 • Website: www.meridaincity.org 2 CURRENT LAND USE Rural/Estate Residential: UNCHECKED Low Density Residential: UNCHECKED Medium Density Residential: UNCHECKED Medium -High Density Residential: UNCHECKED High Density Residential: UNCHECKED Commercial: CHECKED Office: UNCHECKED Industrial: UNCHECKED Civic: UNCHECKED Old Town: UNCHECKED Mixed Use Neighborhood: UNCHECKED Mixed Use Neighborhood with N.C.: UNCHECKED Mixed Use Community: UNCHECKED Mixed Use Community with N.C.: UNCHECKED Mixed Use Regional: UNCHECKED Mixed Use Non -Residential: UNCHECKED Mixed Use Interchange: _ UNCHECKED Low Density Employment: UNCHECKED High Density Employment: _ _ UNCHECKED _ Mixed Employment:. _ UNCHECKED Mixed Use Residential UNCHECKED Mixed Use Commercial: _ UNCHECKED Lifestyle Center: _ UNCHECKED Parks, Pathways, and Open Space: UNCHECKED PROJECT INFORMATION Site Plan Date (MM/DD/YYYY): 03/31/2017 Landscape Plan Date (MMIDD/YYYY). 03/31/2017 Elevations Date (MM/DDIYYYY): 03/21/2017 Percentage of Site Devoted to Building: exist Percentage of Site Devoted to Landscaping: exist Percentage of Site Devoted to Paving: exist Number of Residential Units: 0 Proposed Building Height: 49 Existing Floor Area (If Applicable): 109240 Gross Floor Area Proposed: 109240 Number of Standard Parking Spaces Provided: 244 Number of Employees: 150 TYPE OF USE PROPOSED Residential: UNCHECKED Office: _ UNCHECKED 33 E Broadway Avenue, Suite 102 • Meridian, Idaho 83642 Phone: (208)884-5533 • Facsimile: (208) 888-6854 • Website: www.meridaincity.org 3 Commercial CHECKED Employment: _ UNCHECKED Industrial: _ UNCHECKED Single -Family Detached: UNCHECKED Single -Family Attached: UNCHECKED Townhouse: _ UNCHECKED Duplex: _ UNCHECKED Multi-Family: UNCHECKED Vertically Integrated: UNCHECKED QUALIFYING OPEN SPACE Open Grassy Area (min. 50'x 100'): UNCHECKED Community Garden: _ UNCHECKED Ponds or Water Features: UNCHECKED Plaza: UNCHECKED Additions to Public Park: _ UNCHECKED Collector Street Buffer: UNCHECKED Arterial Street Buffer: UNCHECKED 8' or 6' Wide Parkways: _ UNCHECKED 10' Parkway Along Arterials. UNCHECKED Stormwater Detention Facility: UNCHECKED QUALIFYING SITE AMENITIES Clubhouse: UNCHECKED Fitness Facilities: UNCHECKED Enclosed Bike Storage UNCHECKED Public Art: _ UNCHECKED Picnic Area: _ UNCHECKED Additional 5% Open Space: UNCHECKED Communication Infrastructure: UNCHECKED Dog Owner Facilities. UNCHECKED Neighborhood Business Center: UNCHECKED Swimming Pool: UNCHECKED Children's Play Structure: UNCHECKED Sports Courts: UNCHECKED Pedestrian or Bicycle Circulation System: UNCHECKED Transit Stop _ UNCHECKED Park and Ride Lot: UNCHECKED Walking Trails: UNCHECKED HOSC I have read and understand the City code provisions regarding Home Occupations: UNCHECKED I certify that I will conduct my business in accordance with these provisions: UNCHECKED I understand that business clients may not visit my home: UNCHECKED 33 E Broadway Avenue, Suite 102 • Meridian, Idaho 83642 Phone: (208)884-5533 • Facsimile: (208) 888-6854 • Website: www.meridaincity.org 4 I understand that I cannot have employees at my home: UNCHECKED 33 E Broadway Avenue, Suite 102 • Meridian, Idaho 83642 Phone: (208)884-5533 • Facsimile: (208) 888-6854 • Website: www.meridaincity.org 5 PETERSEN•STAGGS ARCHITECTS LLP N C A R B C E R T I F I E D May 5, 2017 City of Meridian Planning Division 33 E. Broadway Avenue Meridian, Idaho 83642 RE: Meridian Crossroads — Major Anchor Redevelopment CZC/Design Review Application Narrative Letter To whom it may concern, We are pleased to submit a Certificate of Zoning Compliance and Design Review Application for your consideration on the proposed redevelopment planned for a portion of the Meridian Crossroads shopping center. We have provided this letter as a requirement for a narrative letter addressing how the proposal aligns with the requirements of the Unified Development Code and City of Meridian Architectural Standards Manual as follows: Introduction: Attached hereto are the CZC/Design Review Application, drawings and associated documents for the proposed Meridian Crossroads — Major Anchor Redevelopment, located at 3499 East Fairview Avenue, Meridian, Idaho. The project is located on two parcels located in the General Retail and Service Commercial (C -G) Zone. The two parcels consist of and approximate 20.091 acre parcel (ADA County Parcel Number S1109223007) and an approximate 18.573 acre parcel (ADA County Parcel Number S1109212479). The two parcels span from Eagle Road to Records Way along Fairview Avenue frontage. The property currently includes a vacant retail building which was previously operated as Shopko and is a part of the Meridian Crossroads Shopping Center. The proposed redevelopment will include the exterior and interior renovation of the previous Shopko building area which consists of 109,240 square feet that was originally constructed in 1999. The exterior renovation will include a complete reconfiguration of the retail frontage along with new paint on the left, right and rear elevations which will bring needed revitalization to the shopping center. The General Retail and Service Commercial (C -G) currently allows for the proposed Retail use, therefore no zoning changes are being requested. The proposed improvement included a new drive through window. A drive through window is an approved accessory use in the C -G Zone as long as there is not another drive window within 300 feet of the proposed location. Based on our review of the locations of surrounding drive through window on adjacent improvements, this separation requirement is meet and we would not be required to seek a Conditional Use Permit (CUP). As we understand, since the exterior renovation which will include new fagade treatments and drive through window, the proposed project will require a Certificate of Zoning Compliance (CZC) and Design Review (DR) Application for approval through the City of Meridian. 5200 W. STATE STREET BOISE, IDAHO 83703 208-345-1462 FAX 208-345-1532 E-MAIL: psa@psarch.com CO Meridian Crossroads — Major Anchor Redevelopment CZC/Design Review Application Narrative Letter Page 2 of 3 Site and Surrounding Area: Zoning The subject property is currently zoned General Retail and Services Commercial (C -G). The surrounding property consists of the following: • North - General Retail and Services Commercial (C -G). • South - Medium -Low Density Residential (R-4). • East - Community Business (C -C). • West - Light Industrial (I -L). The uses to the North include various retail and restaurant establishments within `The Village At Meridian' development. To the South of the property existing uses includes retail, restaurants and single family residential. To the East of the property uses includes retail and to the West of the property uses includes retail, restaurants and businesses. Topographic Characteristics Generally the existing property is flat with existing grading to promote drainage to localized catch basins in the paved and landscaped areas. The majority is the existing property is impervious surface with improved landscaping. Existing Improvements The two subject parcels are fully developed with paving, landscaping and buildings. The current landscaping is dispersed throughout the parking areas and large landscape buffer along both Fairview Avenue and Eagle Road. All paving, landscaping and improvements are proposed to remain. Concept: The concept for the proposed redevelopment contemplates the renovation of a vacant portion of the Meridian Crossroads Shopping Center for a new retail use. That portion of the shopping center includes a 109,783 square foot area that previous held Shopko. This portion of the shopping center was constructed in 1999 and is predominately constructed of painted split - faced concrete masonry units (CMU) with accents of Exterior Insulation Finish System (EIFS) and window storefront glazing at the front fagade. The left, right and rear elevations consist of painted smooth -faced CMU. The exterior renovation will include an entirely new and exciting front fagade and re -painting of the left, right and rear elevations with color that corresponds with the front fagade and are cohesive to the surrounding developments. The proposed redevelopment is very consistent with the guidelines provided by the City of Meridian Architectural Standards Manual and the requirements of the Unified Development Code. As a supporting document to the application submittal, you will find the Design Review Checklist for Non -Residential Standards outlining and identifying applicable goals and standards this proposal meets for cohesiveness, form, scale, elements and materials. Zvi Meridian Crossroads — Major Anchor Redevelopment CZC/Design Review Application Narrative Letter Page 3 of 3 The main building structure will remain with modification to the front fagade to accommodate new entrances; storefront glazing, building features with appealing articulation and various scales with maintain the very important pedestrian environment of the shopping center. The building design provides cohesiveness with the surround developments and other developments found throughout the City of Meridian. Not only will this design be beneficial to the Meridian Crossroads Shopping Center, but will also bring a revitalization to the area in general. The scale of the building will be consistent to standards and surrounds developments as well. As mentioned above, the existing front wall structure will mostly remain with modification to add entrances and features to better the character of the building and shopping center. The scale of the building varies with tall entry features at each entrance to the building with the main entrance being predominant. The vertical scale is addressed with the use of horizontal accent canopies, glazing and play of the roof lines and slopes. The massing of the main features includes the use of louvers that relieves the massing with open space and light beyond the outer most wall face. The main features of the front fagade will not just be limited to the front wall line, but will extend up and over the existing structure to further develop the buildings scale and visual articulation. As seen on the colored rendering and materials legends materials such as stone veneer; EIFS; split -face CMU; clear and tinted glazing; vertical fiber cement board with appealing wood grain finish and tile veneer along with the color palette that compliments the materials makes for an impeccable composition that helps build the architectural characteristics we feel the City of Meridian is seeking based on the Architectural standards. We trust you will find this application complete. Should there be any questions or need further information, please contact our office at (208) 345-1462 as well as The Land Group office at (208) 939-4041. Thank you for your time regarding this matter. Sincerely, PETERSEN•STAG ARCHITECTS LLP Architects Chad E. Pollock, N B Associate Princ' al CEP:kte h_r S=ggoSgq [4 - RECORDING,REQ.UID BY AND WHEN RECORDED RETURN'TO:' Hardin G. Halsey,.Esq— : -1.*--'- Womble Carlyle Sandridge &'Rice; PLLC '4ne West Fourth Street . ADA COUNTY RECORDER J, DAVID NAVARRO AMOUNT 192.00 64 BOISE IDAHO 03/26/08 11;17 AM DEPUTY Bonnie Oberbillig III I'�IIiIIII'I'I'II'I'III�I'I'lll'I� RECORDED—REQUEST OF 108034096 Alliance Title State: Idaho Property: Meridian Crossroads This Instrument Prepared by: Hardin G. Halsey, Esq. Womble Carlyle Sandridge & Rice, PLLC One West Fourth Street Winston-Salem, NC 27101 DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING [COLLATERAL INCLUDES FIXTURES] BY GS II MERIDIAN CROSSROADS LLC, a Delaware limited liability company, and TFCM ASSOCIATES, LLC, a Utah limited liability company, collectively as Borrower and Grantor, TO ALLIANCE TITLE & ESCROW CORPORATION, a Delaware corporation, as Trustee for the benefit of METROPOLITAN LIFE INSURANCE COMPANY, a New York corporation, as Lender and Beneficiary, Dated March 2P , 2008, but effective as of March 2 �� , 2008 THS INSTRUMENT SECURES INDEBTEDNESS EVIDENCED BY A PROMISSORY NOTE DATED MARCH , 2008, BUT EFFECTIVE AS OF MARCH , 2008, AS DESCRIBED IN RECITAL A TO THIS INSTRUMENT, MADE PAYABLE TO THE ORDER OF METROPOLITAN LIFE INSURANCE COMPANY IN THE FACE PRINCIPAL AMOUNT OF $37,200,000.00, SAID NOTE HAVING A STATED MATURITY DATE OF APRIL 1, 2013. SAID NOTE MAY CONTAIN PROVISIONS FOR ADJUSTMENTS IN THE INTEREST RATE AND PAYMENT AMOUNTS AND/OR A BALLOON PAYMENT. THIS INSTRUMENT ALSO SECURES INDEBTEDNESS UNDER A GUARANTY (NOTE) OF OTHER PROMISSORY NOTES AS DESCRIBED IN RECITAL A TO THIS INSTRUMENT. THE PRINCIPAL INDEBTEDNESS UNDER THE PROMISSORY NOTE DESCRIBED ABOVE TOGETHER WITH THE PRINCIPAL INDEBTEDNESS GUARANTEED UNDER THE GUARANTY (NOTE) BEING IN THE AGGREGATE PRINCIPAL AMOUNT OF $350,000,000.00. GS II MERIDIAN CROSSROADS LLC'S ORGANIZATIONAL IDENTIFICATION NO. IS 3637193. TFCM ASSOCIATES, LLC'S ORGANIZATIONAL IDENTIFICATION NO. IS 2043756-0160. WCSR 3847963 TABLE OF CONTENTS Page ARTICLEI GRANT OF SECURITY.........................................................................................1 Section 1.01. REAL PROPERTY GRANT ....................................................... I ........... ........ 1 Section 1.02. PERSONAL PROPERTY GRANT.................................................................. 2 Section 1.03. CONDITIONS TO GRANT...........................................................................3 Section 1.04. DEED OF TRUST; OBLIGATIONS SECURED; INCORPORATION OF RECITALS3 ARTICLE 11 BORROWER COVENANTS...................................................................................4 Section 2.01. DUE AUTHORIZATION, EXECUTION, AND DELIVERY................................4 Section 2.02. PERFORMANCE BY BORROWER.................................................................4 Section 2.03. WARRANTY OF TITLE............................................................................... 5 Section 2.04. TAXES, LIENS AND OTHER CHARGES........................................................5 Section 2.05. ESCROW DEPOSITS...................................................................................6 Section 2.06. CARE AND USE OF THE PROPERTY............................................................. 7 Section 2.07. COLLATERAL SECURITY INSTRUMENTS...................................................9 Section 2.08. SUITS AND OTHER ACTS TO PROTECT THE PROPERTY ..............................9 Section 2.09. LIENS AND ENCUMBRANCES.....................................................................9 Section 2.10. MANAGEMENT OF PROPERTY.................................................................. 10 Section 2.11. CASH MANAGEMENT.............................................................................. I 1 ARTICLEIII INSURANCE.......................................................................................................11 Section 3.01. REQUIRED INSURANCE AND TERMS OF INSURANCE POLICIES ................. 1 I Section 3.02. ADJUSTMENT OF CLAIMS........................................................................ 15 Section 3.03. ASSIGNMENT TO LENDER........................................................................16 ARTICLE IV BOOKS, RECORDS AND ACCOUNTS...................................................................16 Section 4.01. BOOKS AND RECORDS............................................................................. 16 Section 4.02. PROPERTY REPORTS...............................................................................16 Section 4.03. ADDITIONAL MATTERS.......................................................................... 17 ARTICLE V LEASES AND OTHER AGREEMENTS AFFECTING THE PROPERTY...................17 Section 5.01. BORROWER'S REPRESENTATIONS AND WARRANTIES ............................ 17 Section 5.02. ASSIGNMENT OF LEASES........................................................................ 18 Section 5.03. PERFORMANCE OF OBLIGATIONS........................................................... 18 Section 5.04. SUBORDINATE LEASES...........................................................................19 Section 5.05. LEASING COMMISSIONS.........................................................................20 ARTICLE VI ENVIRONMENTAL HAZARDS............................................................................20 Section 6.01. REPRESENTATIONS AND WARRANTIES...................................................20 Section6.02. REMEDIAL WORK...................................................................................21 Section 6.03. ENVIRONMENTAL SITE ASSESSMENT.....................................................21 Section 6.04. UNSECURED OBLIGATIONS..................................................................... 21 Section 6.05. HAZARDOUS MATERIALS.......................................................................22 Section 6.06. REQUIREMENTS OF ENVIRONMENTAL LAWS..........................................22 -2- WCSR 3847963 ARTICLE VII CASUALTY, CONDEMNATION AND RESTORATION..........................................23 Section 7.01. BORROWER'S REPRESENTATIONS..........................................................23 Section 7.02. RESTORATION........................................................................................23 Section 7.03. CONDEMNATION....................................................................................25 Section 7.04. REQUIREMENTS FOR RESTORATION.......................................................26 ARTICLE VIII REPRESENTATIONS OF BORROWER................................................................. 27 Section8.01. ERISA......................................................................................................27 Section 8.02. NON-RELATIONSHIP................................................... .........................28 Section 8.03. NO ADVERSE CHANGE............................................................................28 Section 8.04. FOREIGN INVESTOR................................................................................28 Section 8.05. US PATRIOT ACT..................................................................................... 28 ARTICLE IX EXCULPATION AND LIABILITY.........................................................................29 Section 9.01. LIABILITY OF BORROWER......................................................................29 ARTICLE X CHANGE IN OWNERSHIP, CONVEYANCE OF PROPERTY RIGHT OF SUBSTITUTION.................................................................................................. 30 Section 10.01. CONVEYANCE OF PROPERTY, CHANGE IN OWNERSHIP AND COMPOSITION......................................................................................... 30 Section 10.02. PROHIBITION ON SUBORDINATE FINANCING .......................................... 34 Section 10.03. RESTRICTIONS ON ADDITIONAL OBLIGATIONS ...................................... 35 Section 10.04. STATEMENTS REGARDING OWNERSHIP..................................................35 Section 10.05. LIMITED RIGHT OF SUBSTITUTION.......................................................... 35 Section 10.06. LIMITED RIGHT OF RELEASE................................................................... 37 Section 10.07. ADDITIONAL DEFINITIONS......................................................................38 ARTICLE XI DEFAULTS AND REMEDIES..39 ............................................................................. Section 11.01. EVENTS OF DEFAULT..............................................................................39 ! Section 11.02. REMEDIES UPON DEFAULT. .......40 Section 11.03. APPLICATION OF PROCEEDS OF SALE. ........ 41 Section 11.04. WAIVER OF JURY TRIAL. .......42 Section 11.05. LENDER'S RIGHT TO PERFORM BORROWER'S OBLIGATIONS .................. 42 Section 11.06. LENDER REIMBURSEMENT.....................................................................42 I Section 11.07. FEES AND EXPENSES..............................................................................42 . Section 1108. WAIVER OF CONSEQUENTIAL DAMAGES. 42 :............................................... Section 11.09. WAIVER OF REDEMPTION RIGHTS, EXEMPTIONS, ETC ............................ 43 [ Section 11.10. INDEMNIFICATION OF TRUSTEE.............................................................. 43 i Section 1 I.11. ACTIONS BY TRUSTEE.. .......................................................................... 43 Section 11.12. SUBSTITUTION OF TRUSTEE. ARTICLE XII BORROWER AGREEMENTS AND FURTHER ASSURANCES...............................43 Section 12.01, PARTICIPATION AND SALE OF LOAN......................................................43 Section 12.02. REPLACEMENT OF NOTE......................................................................... 44 Section 12.03. BORROWER'S ESTOPPEL.........................................................................44 Section 12.04. FURTHER ASSURANCES.........................................................................45 Section12.05. SUBROGATION.......................................................................................45 Section 12.06 SINGLE PURPOSE ENTITIES......................................................................45 ARTICLE XIII SECURITY AGREEMENT....................................................................................46 -3- WCSR 3847963 Section 13.01. SECURITY AGREEMENT ............46 ............................................................. Section 13.02. REPRESENTATIONS AND WARRANTIES..................................................4 Section 13.03. CHARACTERIZATION OF PROPERTY.......................................................47 Section 13.04. PROTECTION AGAINST PURCHASE MONEY SECURITY INTERESTS.......... 47 ARTICLEXIV MISCELLANEOUS COVENANTS........................................................................48 Section 14.01. NO WAIVER ...................•••••48 .................................................................... Section14.02. NOTICES.................................................................................................48 Section 14.03. HEIRS AND ASSIGNS; TERMINOLOGY; REASONABLE LEGAL FEES.......... 48 Section14.04. SEVERABILITY.......................................................................................49 Section14.05. APPLICABLE LAW...................................................................................49 Section14.06. CAPTIONS...............................................................................................49 Section 14.07. TIME OF THE ESSENCE............................................................................49 Section14.08. NO MERGER............................................................................................49 Section 14.09. NO MODIFICATIONS................................................................................49 Section14.10. WAIVER..................................................................................................49 Section 14.11. CROSS DEFAULT..................................................................................... 50 Section 14.12. FUTURE ADVANCES................................................................................ 50 ARTICLE XV SPECIAL STATE PROVISIONS...........................................................................50 Section I S.01. SPECIAL STATE PROVISIONS................................................................... 50 -4- WCSR 3847963 DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING DFFINFT) TERMS Execution Date: Dated March -76, 2008, but effective as of March 2008 Note: The promissory note dated as of the Execution Date made by Borrower to the order of Metropolitan Life Insurance Company in the principal amount of $37,200,000.00 Lender (referred to herein as "Lender" or "Beneficiary") & Address: Metropolitan Life Insurance Company 10 Park Avenue 3`d Floor Morristown, New Jersey 07962 Attention: Senior Vice -President, Real Estate Investments And Metropolitan Life Insurance Company 125 South Wacker Drive, Suite 1100 Chicago, Illinois 60606 Attention: Associate General Counsel, Real Estate Investments Borrower (referred to herein as "Borrower" or "Grantor") & Address: GS II Meridian Crossroads LLC, a Delaware limited liability company, and TFCM Associates, LLC, a Utah limited liability company c/o Developers Diversified Realty Corporation 3300 Enterprise Parkway Beachwood, Ohio 44122 Attention: Executive Vice President And GS II Meridian Crossroads LLC, a Delaware limited liability company, and TFCM Associates, LLC, a Utah limited liability company c/o Developers Diversified Realty Corporation 3300 Enterprise Parkway Beachwood, Ohio 44122 Attention: General Counsel Trustee & Address: Alliance Title & Escrow Corporation 250 S. Fifth Street, Suite 100 Boise, Idaho 83702 Liable Party & Address: The Liable Party is the same as the Borrower. County and State in which the Property is located: Ada County, State of Idaho ( the "State'). Use: Retail shopping center together with ancillary and related uses. Insurance: Commercial General Liability: The Required Liability Limits are set forth in Section 3.01 hereof Address for Insurance Notification: Metropolitan Life Insurance Company its affiliates and/or successors and assigns 10 Park Avenue 3`d Floor Morristown, NJ 07962 Attn: Real Estate Investments Insurance Manager Assignment: Assignment of Leases, dated as of the Execution Date, and executed by Borrower in -5- WCSR 3847963 favor of Lender. Guaranty (Note): Guaranty (Note), dated as of the Execution Date, and executed by Borrower in favor of Lender in connection with the Affiliate Loans (as such term is defined below in Section 10.01(i)). Loan Documents: The Note, the Assignment, this Security Instrument, the Guaranty (Note) and any other documents related to the Note and/or this Security Instrument and all renewals, amendments, modifications, restatements and extensions of these documents. Indemnity Agreement: Unsecured Indemnity Agreement, dated as of the Execution Date, and executed by Borrower and Liable Party in favor of Lender. Guaranty: The Liable Party is the Borrower and therefore the definition of "Guaranty" is not applicable unless hereafter executed and delivered pursuant to Section 10.01 or otherwise. The Indemnity Agreement and the Guaranty are not Loan Documents and shall survive repayment of the Loan or other termination of the Loan Documents as set forth further therein. -6- WCSR 3847963 This DEED OF TRUST, SECURITY AGREEMENT AND FIXTURE FILING (this "Security Instrument") dated March 28 , 2008, but effective as of March ? F, 2008, is made by Borrower (hereinafter referred to as "Borrower" or "Grantor") to Trustee for the benefit of Lender with reference to the following Recitals: RECITALS A. This Security Instrument secures: (1) the payment of the indebtedness evidenced by the Note with interest at the rates set forth in the Note, together with all renewals, modifications, consolidations and extensions of the Note, all additional advances or fundings made by Lender, and any other amounts required to be paid by Borrower under any of the Loan Documents (collectively referred to as the "Loan"), (2) the payment of the Guaranteed Obligations, as defined in the Guaranty (Note), together with all renewals, modifications, consolidations and extensions thereof (the indebtedness described in the foregoing clause (1) and clause (2) is collectively referred to as the "Secured Indebtedness", and sometimes referred to as the "Total Loan"); and (3) the full performance by Borrower of all of the terms, covenants and obligations set forth in any of the Loan Documents. B. Borrower makes the following covenants and agreements for the benefit of Lender or any party designated by Lender, including any prospective purchaser of the Loan Documents or participant in the Loan, and their respective officers, employees, agents, attorneys, representatives and contractors (all of which are collectively referred to as, "Lender" or "Beneficiary"). NOW, THEREFORE, in consideration of the Recitals and for other good and valuable consideration, the receipt and sufficiency of which are acknowledged, Borrower agrees as follows: ARTICLE I GRANT OF SECURITY Section 1.01. REAL PROPERTY GRANT. Borrower hereby irrevocably sells, transfers, grants, conveys, assigns, and warrants to Trustee, its successors and assigns, in trust for the benefit of Lender, with power of sale and right of entry and possession, all of Borrower's present and future estate, right, title and interest in and to the following which are collectively referred to as the "Real Property": (a) that certain real property located in the County and State which is more particularly described in Exhibit A attached to this Security Instrument or any portion of the real property; all easements, rights-of-way, gaps, strips and gores of land; streets and alleys (whether open, proposed or vacated); sewers and water rights; privileges, licenses, tenements, and appurtenances appertaining to the real property, and the reversion(s), remainder(s), and claims of Borrower with respect to these items, and the benefits of any existing or future conditions, covenants and restrictions affecting the real property (collectively, the "Land"); (b) all things now or hereafter affixed to or placed on the Land, including all buildings, structures and improvements, all fixtures and all machinery, elevators, boilers, building service equipment (including, without limitation, all equipment for the generation or distribution of air, water, heat, electricity, light, fuel or for ventilating or air conditioning WCSR 3847963 purposes or for sanitary or drainage purposes or for the removal of dust, refuse or garbage), partitions, appliances, furniture, furnishings, building materials, supplies, computers and software, window coverings and floor coverings, lobby furnishings, and other property now or in the future attached, or installed in the improvements and all replacements, repairs, additions, or substitutions to these items (collectively, the "Improvements"); (c) all present and future income, rents, revenue, profits, proceeds, accounts receivables and other benefits from the Land and/or Improvements and all deposits made with respect to the Land and/or Improvements, including, but not limited to, any security given to utility companies by Borrower, any advance payment of real estate taxes or assessments, or insurance premiums made by Borrower and all claims or demands relating to such deposits and other security, including claims for refunds of tax payments or assessments, and all insurance proceeds payable to Borrower in connection with the Land and/or Improvements whether or not such insurance coverage is specifically required under the terms of this Security Instrument ("Insurance Proceeds") (all of the items set forth in this paragraph are referred to collectively as "Rents and Profits"); (d) all damages, payments and revenue of every kind that Borrower may be entitled to receive, from any person owning or acquiring a right to the oil, gas or mineral rights and reservations of the Land; (e) all proceeds and claims arising on account of any damage to, or Condemnation (as hereinafter defined) of any part of the Land and/or Improvements, and all causes of action and recoveries for any diminution in the value of the Land and/or Improvements; (f) all licenses, contracts, management agreements, guaranties, warranties, franchise agreements, permits, or certificates relating to the ownership, use, operation or maintenance of the Land and/or Improvements; and (g) all names by which the Land and/or Improvements may be operated or known, and all rights to carry on business under those names, and all trademarks, trade names, and goodwill relating to the Land and/or Improvements. TO HAVE AND TO HOLD all the Real Property unto Trustee, its successors and assigns, forever, in trust for the benefit of Lender, its successors and assigns, forever, subject to the terms, covenants and conditions of this Security Instrument. Section 1.02. PERSONAL PROPERTY GRANT. Borrower hereby irrevocably sells, transfers, grants, conveys, assigns, and warrants to Lender, its successors and assigns, and grants to Lender, its successors and assigns, a security interest in, Borrower's interest in the following personal property which is collectively referred to as "Personal Property": (a) any portion of the Real Property which may be personal property, and all other personal property, whether now existing or acquired in the future which is attached to, appurtenant to, or used in the construction or operation of, or in connection with, the Real Property; 2 WCSR 3847963 (b) all rights to the use of water, including water rights appurtenant to the Real Property, pumping plants, ditches for irrigation, all water stock or other evidence of ownership of any part of the Real Property that is owned by Borrower in common with others and all documents of membership in any owner's association or similar group; (c) all plans and specifications prepared for construction of the Improvements; and all contracts and agreements of Borrower relating to the plans and specifications or to the construction of the Improvements; (d) all equipment, machinery, fixtures, goods, accounts, general intangibles, documents, instruments and chattel paper and all substitutions, replacements of, and additions to, any of the these items; (e) all sales agreements, deposits, escrow agreements, other documents and agreements entered into with respect to the sale of any part of the Real Property, and all proceeds of the sale; and (f) all proceeds from the voluntary or involuntary disposition or claim respecting any of the foregoing items (including judgments, condemnation awards or otherwise). All of the Real Property and the Personal Property are collectively referred to as the "Property". Section 1.03. CONDITIONS TO GRANT. If Borrower shall pay to Lender the Secured Indebtedness, and if Borrower's Affiliates (as such term is hereinafter defined in Section 10.01(i)) shall pay to Lender the indebtedness evidenced by the Affiliate Notes (as such term is hereinafter defined in Section 10.01(i)), at the times and in the manner stipulated in the Loan Documents and the Affiliate Notes, respectively, and Borrower is not in default under each of the terms, conditions, covenants and agreements set forth in the Loan Documents, and if Borrower's Affiliates are not in default under each of the terms, covenants and agreements set forth in the Affiliate Notes, then this Security Instrument and all the rights granted by this Security Instrument shall be released and surrendered by Trustee and/or Lender in accordance with the laws of the State where the Property is located. In addition, this Security Instrument shall be released and the Property shall be released in the event of a permitted prepayment of the Loan pursuant to and in accordance with Section 8 of the Note, as set forth further and as provided in Section 10.06 hereof. Section 1.04. DEED OF TRUST; OBLIGATIONS SECURED-, INCORPORATION OF RECITALS. The recitals set forth above are true and correct and incorporated herein by this reference as part of the substantive agreements in this Security Instrument. This Security Instrument is a deed of trust, and is also a security agreement granting a present and continuing security interest in and security title to the Personal Property and fixtures. This Security Instrument is made and intended to secure the payment of the indebtedness evidenced by the Note and the Affiliate Notes, in accordance with the terms thereof, the other Secured Indebtedness, as defined in the Recitals above; and all other obligations and indebtedness described in Recital A above; and any and all renewals, substitutions, modifications and extensions of the Note, the Affiliate Notes or any other obligations secured hereby, either in whole or in part. 3 WCSR 3847963 ARTICLE II BORROWER COVENANTS Section 2.01. DUE AUTHORIZATION EXECUTION AND DELIVERY. (a) Borrower represents and warrants that the execution of the Loan Documents and the Indemnity Agreement have been duly authorized and there is no provision in the organizational documents of Borrower requiring further consent for such action by any other entity or person. (b) Borrower represents and warrants that it is duly organized, validly existing and is in good standing under the laws of the state of its formation and in the State, that, to the best of its knowledge, it has all necessary licenses, authorizations, registrations, permits and/or approvals to own its properties and to carry on its business as presently conducted. (e) Borrower represents and warrants that the execution, delivery and performance of the Loan Documents will not result in Borrower's being in default under any provision of its organizational documents or of any mortgages, deeds of trust, lease, credit or other agreement to which it is a party or which affects it or the Property. (d) Borrower represents and warrants that the Loan Documents and the Indemnity Agreement have been duly authorized, executed and delivered by Borrower and constitute valid and binding obligations of Borrower which are enforceable in accordance with their terms. (e) The membership interests evidenced by the Borrower's organizational documents have been issued in accordance with all applicable federal and state securities laws, or authorized exemptions from such securities laws, including, but not limited to, the Securities Act of 1933, as amended, and the Securities and Exchange Act of 1934. The membership interests of Borrower have not been issued in violation of any federal, state or local securities law, and to the extent that these securities have been issued in reliance on exemptions from such federal or state securities law, all necessary steps have been taken to qualify for such exemptions. The members of Borrower have been properly notified of all applicable securities laws and related restrictions on their ability to transfer, sell or otherwise dispose of their membership interests in Borrower. The name of Lender is not and will not be in any of the offering materials provided or to be provided to any person, including, but not limited to, any of the members of Borrower, nor has there been any representation, whether written, oral or otherwise, that Lender in any way has participated or endorsed the offering of the membership interests in Borrower. Section 2.02. PERFORMANCE BY BORROWER. Borrower shall pay the Secured Indebtedness to Lender and shall keep and perform each and every other obligation, covenant and agreement of the Loan Documents. WCSR 3847963 Section 2.03. WARRANTY OF TITLE. (a) Borrower warrants that it holds marketable and indefeasible fee simple absolute title to the Real Property (to the extent they constitute interests in real property), and that it has the right and is lawfully authorized to sell, convey or encumber the Property subject only to easements routinely granted by owners of similar properties to utility companies, which do not adversely affect the value of the Property or the lien created by this Security Instrument (provided, however, that the foregoing language or similar language set forth elsewhere in this Security Instrument and/or Loan Documents shall not be interpreted to effect a subordination of the lien of this Security Instrument to such easements without a written joinder or subordination by Lender to such easements), and those property specific exceptions to title recorded in the real estate records of the County and contained in Schedule B-1 of the title insurance policy or policies which have been approved by Lender (the "Permitted Exceptions"). The Property is free from all due and unpaid taxes, assessments and mechanics' and materialmen's liens. (b) Borrower further covenants to warrant and forever defend Lender and Trustee from and against all persons claiming any interest in the Property. Section 2.04. TAXES LIENS AND OTHER CHARGES. (a) Unless otherwise paid to Lender as provided in Section 2.05, Borrower shall pay all real estate and other taxes and assessments which may be payable, assessed, levied, imposed upon or become a lien on or against any portion of the Property (all of the foregoing items are collectively referred to as the "Imposition(s)"). The Impositions shall be paid not later than five (5) days before the dates on which the particular Imposition would become delinquent and Borrower shall produce to Lender receipts of the imposing authority, or other evidence reasonably satisfactory to Lender, evidencing the payment of the Imposition in full. If Borrower elects by appropriate legal action to contest in the routine, normal course of its business operations any Imposition, and such contest is conducted in accordance with the requirements of local laws and regulations, Borrower shall not be required to deposit any cash with Lender, however, if any such contest is not undertaken in accordance with the foregoing, Borrower shall, upon Lender's request, deposit with Lender cash as a reserve in an interest bearing account in an amount which Lender determines is sufficient to pay the Imposition plus all fines, interest, penalties and costs which may become due pending the determination of the contest (or in lieu of cash, Borrower may deposit with Lender a letter of credit in form and substance satisfactory to Lender). If Borrower deposits this sum with Lender, Borrower shall not be required to pay the Imposition provided that the contest operates to prevent enforcement or collection of the Imposition, or the sale or forfeiture of, the Property, and is prosecuted with due diligence and continuity. Upon termination of any proceeding or contest, Borrower shall pay the amount of the Imposition as finally determined in the proceeding or contest. Provided that there is not then an Event of Default (as defined in Section 11.01), the monies which have been deposited with Lender pursuant to this Section shall be applied toward such payment and the excess, if any, shall be returned to Borrower. (b) In the event of the passage, after the Execution Date, of any law which deducts from the value of the Property, for the purposes of taxation, any lien or security interest encumbering the Property, or changing in any way the existing laws regarding the 5 WCSK 3847963 taxation of mortgages, deeds to secure debt, deeds of trust and/or security agreements or debts secured by these instruments, or changing the manner for the collection of any such taxes, and the law has the effect of imposing payment of any Impositions upon Lender, at Lender's option, the Secured Indebtedness shall immediately become due and payable (without penalty, premium or prepayment fee). Notwithstanding the preceding sentence, the Lender's election to accelerate the Loan shall not be effective if (1) Borrower is permitted by law (including, without limitation, applicable interest rate laws) to, and actually does, pay the Imposition or the increased portion of the Imposition and (2) Borrower agrees in writing to pay or reimburse Lender in accordance with Section 11.06 for the payment of any such Imposition which becomes payable at any time when the Loan is outstanding. Section 2.05. ESCROW DEPOSITS. Without limiting the effect of Section 2.04 and Section 3.01, Borrower shall pay to Lender monthly on the same date the monthly installment is payable under the Note, an amount equal to 1/12th of the amounts Lender reasonably estimates are necessary to pay, on an annualized basis, (1) all Impositions and (2) the premiums for the insurance policies required under this Security Instrument (collectively the "Premiums") until such time as Borrower has deposited an amount equal to the annual charges for these items and on demand, from time to time, shall pay to Lender any additional amounts necessary to pay the Premiums and Impositions. Borrower will furnish to Lender bills for Impositions and Premiums thirty (30) days before Impositions become delinquent and such Premiums become due for payment. No amounts paid as Impositions or Premiums shall be deemed to be trust funds and these funds may be commingled with the general funds of Lender but with the requirement to pay interest to Borrower on account of these funds at the rates paid to Lender on such accounts and such interest shall become a part of such escrow deposits; provided, however, that Borrower shall pay all applicable account fees for setting up and maintaining such interest bearing accounts. Lender shall make timely payments of all Impositions and Premiums to the extent of amounts received under this Section 2.05. Provided, however, that if an Event of Default occurs, Lender shall have the right, at its election, to apply any amounts held under this Section 2.05 in reduction of the Secured Indebtedness, or in payment of the Premiums or Impositions for which the amounts were deposited. Notwithstanding the foregoing, Lender agrees not to require deposits of Impositions or Premiums in accordance with this Section 2.05 unless and until (i) there is an Event of Default under the Loan Documents, the Affiliate Loan Documents or the Indemnity Agreement (provided Lender makes the request for deposits during the continuance of an Event of Default); (ii) Borrower, an Affiliate of Borrower or DDR or a transferee permitted under Sections 10.01(b) and (c) hereof no longer owns the Property; (iii) except as permitted under Section 10.01 (b) of this Security Instrument, there has been a material change (as reasonably determined by Lender) in the Borrower or in the Liable Party; or (iv) with respect to Premiums only, at any time Borrower fails to furnish to Lender, not later than fifteen (15) days before the dates on which any insurance premiums would become delinquent, confirmation of payment of such insurance premiums or appropriate proof of issuance of a new policy which continues in force the insurance coverage of the expiring policy. In the event any of these events occur (as determined by Lender in its sole and reasonable discretion), Borrower shall deposit all Impositions and Premiums with Lender (on l0 -days written notice to Borrower) until such time as the Event of Default is cured in Lender's reasonable discretion (provided, however, that Borrower shall only have the right to cure such Event of Default two times, and thereafter the requirement for escrow deposits will become permanent upon the occurrence of a subsequent Event of Default), or that a transfer or change described in (iii) above is approved by Lender. "Affiliate" shall mean, with respect to any entity, any other entity directly or indirectly controlling, controlled by, or under direct or indirect common control with such entity. A entity 6 WCSR 3847963 shall be deemed to control a second entity if such first entity possesses, directly or indirectly, the power to vote 51% or more of the securities or other ownership interests having ordinary voting power in the election of directors or managers of such second entity. The definition of "Affiliate" shall have no impact upon the definition of "Borrower's Affiliates" which is otherwise defined to have a particular meaning in Section 10.01(i) hereof. Section 2.06. CARE AND USE OF THE PROPERTY. (a) Borrower represents and warrants to Lender as follows: (i) To the best of Borrower's knowledge, all authorizations, licenses, including without limitation liquor licenses, if any, and operating permits required to allow the Improvements to be operated for the Use have been obtained, paid for and are in full force and effect. (ii) Borrower has not received any written notice of violation in connection with, and to the best of Borrower's knowledge the Improvements and their Use comply in all material respects with all Requirements (as defined in this Section) and Borrower shall at all times comply (or cause tenants to comply) with all present or future Requirements affecting or relating to the Property and/or the Use subject to the Borrower's right to contest a Requirement as provided below. Borrower shall furnish Lender, on request, proof of compliance with the Requirements. Borrower shall not use or permit the use of the Property, or any part thereof, for any illegal purpose. "Requirements" shall mean all laws, ordinances, orders, covenants, conditions and restrictions and other requirements relating to land and building design and construction, use and maintenance, that may now or hereafter pertain to or affect the Property or any part of the Property or the Use, including, without limitation, planning, zoning, subdivision, environmental, air quality, flood hazard, fire safety, handicapped facilities, building, health, fire, traffic, safety, wetlands, coastal and other governmental or regulatory rules, laws, ordinances, statutes, codes and requirements applicable to the Property, including permits, licenses and/or certificates that may be necessary from time to time to comply with any of the these requirements. Except as may be required by Article VI hereof, Borrower shall have the right to contest in good faith the amount or validity of a Requirement by appropriate legal proceedings and in accordance with all applicable law, after notice to, but without cost or expense to, Lender, provided that (i) the Borrower shall obtain the prior written approval of Lender, if the amount required to implement the Requirement shall be in excess of $100,000.00, (ii) no Event of Default or event that, with the passage of time or giving of notice or both, would constitute an Event of Default has occurred and is continuing, (iii) such contest shall be promptly and diligently prosecuted by and at the expense of Borrower, (iv) the Borrower and Lender shall not thereby suffer any civil penalty, or be subjected to any criminal penalties or sanctions, (v) such contest shall be discontinued and such Requirement promptly complied with if at any time all or any part of the Property shall be in imminent danger of being foreclosed, sold, forfeited or otherwise lost or if the title, lien and security interest created by this Security Instrument or the priority thereof shall be in imminent danger of being impaired or if either Borrower or Lender shall suffer any civil penalty, or be subjected to any criminal penalties or sanctions, (vi) Borrower shall have set aside adequate reserves (in Lender's judgment and, if required by Lender, deposited with Lender in an interest-bearing account) for compliance with such Requirement, together with all interest and penalties thereon and (vii) Borrower shall have furnished such security as may be required in the proceeding, to insure compliance with such Requirement, together with all interest and penalties thereon. WCSR 3847963 (iii) Borrower has not received any written notice of violation in connection with, and to the best of Borrower's knowledge, Borrower has complied in all material respects with all requirements of, all instruments and agreements affecting the Property, whether or not of record, including without limitation all covenants and agreements by and between Borrower and any governmental or regulatory agency pertaining to the development, use or operation of the Property. Borrower, at its sole cost and expense, shall keep the Property in good order, condition, and repair, and make all necessary structural and non-structural, ordinary and extraordinary repairs to the Property and the Improvements. (iv) Borrower shall abstain from, and not permit, the commission of waste to the Property and shall not remove or alter in any substantial manner, the structure or character of any Improvements without the prior written consent of Lender (which consent shall not be unreasonably withheld, delayed or conditioned). (v) To the best of Borrower's knowledge, the zoning approval for the Property is not dependent upon the ownership or use of any property which is not encumbered by this Security Instrument. (vi) Construction of the Improvements on the Property is complete except as expressly set forth otherwise in the Omnibus Borrowers' Closing Certificate delivered by Borrower and Borrower's Affiliates contemporaneously with the delivery hereof. (vii) The Property is in good repair and condition, free of any material damage, except as specifically set forth in the Property Condition Assessment obtained by Lender in connection with the Loan with respect to the Property. (b) Subject to the rights of tenants, Lender shall have the right, at any time and from time to time during normal business hours, to enter the Property in order to ascertain Borrower's compliance with the Loan Documents, to examine the condition of the Property, to perform an appraisal, to undertake surveying or engineering work, and to inspect premises occupied by tenants. Borrower shall cooperate with Lender performing these inspections. (c) Borrower shall use, or cause to be used, the Property continuously for the Use in the ordinary course of business and subject to normal vacancies. Borrower shall not use, or permit the use of, the Property for any other use without the prior written consent of Lender. Borrower shall not file or record a declaration of condominium, master deed of trust or deed to secure debt or mortgage or any other similar document evidencing the imposition of a so called "condominium regime" whether superior or subordinate to this Security Instrument and (ii) Borrower shall not permit any part of the Property to be converted to, or operated as, a "cooperative apartment house" whereby the tenants or occupants participate in the ownership, management or control of any part of the Property. (d) Without the prior written consent of Lender, Borrower shall not (i) subject the Property to restrictive covenants other than those which are normal and customary and do not adversely affect the Property or the lien created by this Security Instrument and other than easements routinely granted by owners of similar properties to utility companies which do not adversely affect the value of the Property or the lien created by this Security Instrument, (ii) initiate or acquiesce in a change in the zoning classification of the Property or x WCSR 3847063 seek any variance under existing zoning ordinances, (iii) use or permit the use of the Property in a manner which may result in the Use becoming a non -conforming use under applicable zoning ordinances. Section 2.07. COLLATERAL SECURITY INSTRUMENTS. Borrower covenants and agrees that if Lender at any time holds additional security for any obligations secured by this Security Instrument, it may enforce its rights and remedies with respect to the security, at its option, either before, concurrently or after a sale of the Property is made pursuant to the terms of this Security Instrument. Lender may apply the proceeds of the additional security to the Secured Indebtedness without affecting or waiving any right to any other security, including the security under this Security Instrument, and without waiving any breach or default of Borrower under this Security Instrument or any other Loan Document. Section 2.08. SUITS AND OTHER ACTS TO PROTECT THE PROPERTY. (a) Borrower shall immediately notify Lender of the commencement, or receipt of written notice, of any and all actions or proceedings or other material matter or claim having a material adverse effect on the Property and/or the interest of Lender under the Loan Documents (collectively, "Actions"). Borrower shall appear in and defend any Actions. (b) If in Lender's good faith judgment Borrower is not adequately protecting the Property and/or the interest of Lender under the Loan Documents in connection with any Actions, (i) Lender shall have the right, after written notice, at the reasonable cost and expense of Borrower, to institute and maintain the Actions and take such other reasonable action, as it may deem appropriate in the good faith exercise of its discretion to preserve or protect the Property and/or the interest of Lender under the Loan Documents; and (ii) Lender shall have the right, at any time in its good faith judgrnent, to participate in any Action (at Borrower's expense) to the extent necessary to preserve or protect the Property and/or the interest of Lender under the Loan Documents. Any money paid by Lender under this Section shall be reimbursed to Lender in accordance with Section 11.06 hereof. Section 2.09. LIENS AND ENCUMBRANCES. Without the prior written consent of Lender, to be exercised in Lender's sole and absolute discretion, other than the Permitted Exceptions, Borrower shall not create, place or allow to remain any lien or encumbrance on the Property, including deeds of trust, deeds to secure debt, mortgages, security interests, conditional sales, mechanic liens, tax liens or assessment liens regardless of whether or not they are subordinate to the lien created by this Security Instrument (collectively, "Liens and Encumbrances") other than easements routinely granted by owners of similar properties to utility companies which do not adversely affect the value of the Property or the lien created by this Security Instrument. If any Liens and Encumbrances are recorded against the Property or any part of the Property, Borrower shall obtain a discharge and release of record of any Liens and Encumbrances within thirty (30) days after receipt of notice of their existence; provided, however, that Borrower shall have the right, subject to compliance with the remainder of this paragraph, to contest by appropriate legal action any Liens and Encumbrances provided that such contest is conducted in accordance with the requirements of local laws and regulations, and Borrower shall, upon Lender's request, deposit with Lender cash as a reserve in an interest bearing account in an amount which Lender determines is sufficient to pay the Liens and Encumbrances plus all fines, interest, penalties and costs which may become due pending the determination of the contest (or in lieu of cash, Borrower may deposit with Lender a letter of 9 WCSR 3847963 credit in form and substance satisfactory to Lender). If Borrower deposits this sum with Lender, Borrower shall not be required to pay the Liens and Encumbrances provided that the contest operates to prevent enforcement or collection of the Liens and Encumbrances, or the sale or forfeiture of, the Property, and is prosecuted with due diligence and continuity. Upon termination of any proceeding or contest, Borrower shall pay the amount of the Liens and Encumbrances as finally determined in the proceeding or contest. Provided that there is not then an Event of Default (as defined in Section 11.01), the monies which have been deposited with Lender pursuant to this Section shall be applied toward such payment and the excess, if any, shall be returned to Borrower. Section 2.10. MANAGEMENT OF PROPERTY. The Property shall be managed by an approved Manager at all times during the term of the Loan. Manager shall mean Developers Diversified Realty Corporation ("DDR"), or any Affiliate or successor of DDR, who is deemed approved by Lender, or any other person approved by Lender, which approval will not be unreasonably withheld, and will be deemed given if such Person is a "Qualified Manager". A Qualified Manager shall mean a reputable and experienced management company which manages, together with its Affiliates, at least 5 other properties similar to the Property and Affiliate Loan Properties and which, in the aggregate, consist of at least 5,000,000 square feet of gross leasable area (including all anchor space), exclusive of the Property and Affiliate Loan Properties. The management agreement shall be assigned to Lender as additional collateral and shall be subject to Lender's reasonable approval. Subject to the last sentence of this Section 2.10, Lender may require termination of the management agreement only if: (a) a default by Manager has occurred and is continuing (after the expiration of any and all notice and cure periods) under the Management Agreement, and such default constitutes an Event of Default that is continuing under the Loan Documents and (b) an Event of Default (other than as described in clause (a) of this paragraph) has occurred and is continuing, and Lender has accelerated the Loan and exercised its remedies under the Loan Documents; provided in all instances (a) and (b) that a new Qualified Manager has been selected. Upon the occurrence of an Event of Default, all management fees shall be subordinate. If Lender desires to terminate the management agreement or subordinate fees accruing thereunder, Lender must provide Manager with written notice (the "Notice of Subordination"), separate and apart from any corresponding notice to Borrower, specifying the alleged default and stating whether, as a result of such default, Lender is (1) exercising any right that it has to terminate the Management Agreement; and/or (2) insisting that Manager subordinate its fees from and after Manager's receipt of the Notice of Subordination. Unless and until Manager receives the Notice of Subordination, Manager is permitted to collect and retain any and all fees paid to it by Borrower under the Management Agreement. For avoidance of doubt, in no event is Manager obligated to return any fees received prior its receipt of a Notice of Subordination; and provided further that all fees and other amounts from the Property received following receipt of a Notice of Subordination shall be held in trust by Manager for delivery to Lender or at Lender's direction. Once the applicable Event of Default is no longer continuing or has been cured or waived, all accrued but unpaid fees shall be immediately due and payable to Manager. If the Management Agreement has been terminated pursuant to the foregoing, and the applicable event of default is subsequently cured (or the subject loans secured hereby paid -off), then Manager has the right, but not the obligation, to reinstate the Management Agreement and continue to manage the project pursuant to the Management Agreement from and after reinstatement. In all events, Borrower is to remain liable to Manager for all amounts accrued under the Management Agreement, which amounts are to be subordinate only to the Borrower's obligations to Lender under the Loan Documents. Following Manager's receipt of a Notice of Subordination, unless Manager also receives a commitment IU WCSR 3647963 from Lender to pay fees to Manager under the Management Agreement from that point forward, Manager has the right (but not the obligation) at any time to terminate the Management Agreement pursuant to its terms, subject, however, to the notice, cooperation and other obligations as more fully set out in that certain Subordination of Property Management Agreement of even date herewith by Developers Diversified Realty Corporation, as Manager, in favor of Lender (the "Subordination of Management Agreement"). The Borrower shall require all future Managers of the Property to execute a subordination of property management agreement in favor of Lender in form and substance substantially similar to the Subordination of Management Agreement. Notwithstanding anything to the contrary set forth in this Section, for the avoidance of doubt, the Lender shall have the absolute right, in its sole discretion, to terminate the Management Agreement following the acquisition of title to the Property by Lender, whether by foreclosure or deed in lieu of foreclosure. Section 2.11. CASH MANAGEMENT. Borrower and Borrower's Affiliates will collect all revenues for the Property and Affiliate Loan Properties which shall be deposited into (i) a single account for the Property and Affiliate Loan Properties which are located on the U.S. mainland and (ii) no more than two accounts for the Property and Affiliate Loan Properties which are located in Puerto Rico at a bank selected by Borrower and Borrower's Affiliates, and such accounts shall be controlled by the applicable Borrower and/or Borrower's Affiliates, as the case may be. During the existence of an Event of Default, revenues will be remitted upon receipt by Borrower's and Borrower's Affiliates bank to a bank selected by Lender, and shall be allocated among sub -accounts by Lender pursuant to customary waterfall provisions for financing of this type. No sub -accounts are to be maintained prior to an Event of Default. ARTICLE III INSURANCE Section 3.01. REQUIRED INSURANCE AND TERMS OF INSURANCE POLICIES. (a) During the term of this Security Instrument, Borrower at its sole cost and expense must provide insurance policies and certificates of insurance for types of insurance described below all of which must be satisfactory to Lender as to form of policy, amounts, deductibles, sublimits, types of coverage, exclusions and the companies underwriting these coverages. In no event shall such policies be terminated or otherwise allowed to lapse. Borrower shall be responsible for its own deductibles. Borrower shall also pay for any insurance, or any increase of policy limits, not described in this Security Instrument which Borrower requires for its own protection or for compliance with government statutes. Borrower's insurance shall be primary and without contribution from any insurance procured by Lender including, without limitation, any insurance obtained by Lender pursuant to Section 3.01 (d) hereof. Policies of insurance shall be delivered to Lender in accordance with the following requirements: (1) Property insurance on the Improvements and the Personal Property insuring against any peril now or hereafter included within the classification "All Risk" or "Special Perils," in each case (i) in an amount equal to 100% of the "Full Replacement Cost" (as hereinafter defined) of the Improvements and Personal Property with a waiver of depreciation and with a Replacement Cost Endorsement; (ii) containing an agreed WCSR 3847963 amount endorsement with respect to the Improvements and Personal Property waiving all co-insurance provisions; (iii) providing for no deductible in excess of $250,000; and (iv) containing "Ordinance or Law Coverage," Operation of Building Laws, Demolition Costs and Increased Cost of Construction in an amount for the Property of (x) Plaza Rio Hondo, Puerto Rico; Plaza Escorial, Puerto Rico and Paseo Colorado, California - full replacement cost if commercially available and standard within the insurance industry or such lower amount approved by Lender, per occurrence; and (y) Aspen Grove, Colorado; Meridian Crossroads, Idaho and University Centre, North Carolina - $100,000,000.00 per occurrence. The Full Replacement Cost shall be determined (not more frequently than once every calendar year) from time to time by an appraiser or contractor designated and paid by Borrower and approved by Lender or by an engineer or appraiser in the regular employ of the insurer. The "Full Replacement Cost" for purposes of this Article III shall mean the estimated total cost of construction required to replace the Improvements with a substitute of like utility, and using modern materials and current standards, design and layout. For purposes of calculating Full Replacement Cost direct (hard) costs shall include, without limitation, labor, materials, supervision and contractor's profit and overhead and indirect (soft) costs shall include, without limitation, fees for architect's plans and specifications, construction financing costs, permits, sales taxes, insurance and other costs included in the Marshall Valuation Service published by Marshall & Swifts. (2) Commercial General Liability insurance against claims for personal injury, bodily injury, death or property damage occurring upon, in or about the Property, such insurance (i) to be on the so-called "occurrence" form with combined single limits of not less than the amount set forth below; (ii) to continue at not less than this limit until required to be changed by Lender in writing by reason of changed economic conditions making such protection inadequate; and (iii) to cover at least the following hazards: (a) premises and operations; (b) products and completed operations on an "if any" basis; (c) independent contractors; (d) blanket contractual liability for all written and oral contracts; and (e) contractual liability covering the indemnities contained in this Security Instrument to the extent available. The liability insurance limits shall (x) be in an amount of $1,000,000 per occurrence and $2,000,000 per policy, (y) provide for a maximum retention of $250,000 and (z) provide for an umbrella liability policy of no less than $50,000,000 per occurrence and in the policy aggregate. (3) Business Income insurance in an amount sufficient to prevent Borrower from becoming a co-insurer within the terms of the applicable policies, and sufficient to recover one (1) year's "Business Income" (as hereinafter defined) and with an Extended Period of Indemnity of twelve (12) months. The amount of such insurance shall be increased from time to time during the term of this Security Instrument as and when new leases and renewal leases are entered into and rents payable increase or the annual estimate of gross income from occupancy of the Property increases to reflect such rental increases. "Business Income" shall mean the sum of (i) the total anticipated gross income from occupancy of the Property, (ii) the amount of all charges (such as, but not limited to, operating expenses, insurance premiums and taxes) which are the obligation of tenants or occupants to Borrower, (iii) the fair market rental value of any portion of the Property which is occupied by Borrower, and (iv) any other amounts payable to Borrower or to any Affiliate of Borrower pursuant to leases. 12 WCSR 3847963 (4) If Lender determines at any time that any part of the Property is located in an area identified on a Flood Hazard Boundary Map or Flood Insurance Rate Map issued by the Federal Emergency Management Agency as having special flood hazards except for Flood Zones B, C or X and flood insurance has been made available, Borrower will maintain a flood insurance policy meeting the requirements of the current guidelines of the Federal Insurance Administration with a generally acceptable insurance carrier, in an amount not less than the lesser of (i) "Full Replacement Cost", or (ii) the maximum amount of insurance which is available under the National Flood Insurance Act of 1968, the Flood Disaster Protection Act of 1973 or the National Flood Insurance Reform Act of 1994, as amended from time to time. (5) During the period of any construction or renovation or alteration of the Improvements, a so-called "Builder's All Risk" insurance policy in non -reporting form for any Improvements under construction, renovation or alteration including, without limitation, for demolition and increased cost of construction or renovation, in an amount approved by Lender including an Occupancy endorsement and Worker's Compensation Insurance covering all persons engaged in the construction, renovation or alteration in an amount at least equal to the minimum required by statutory limits of the State. (6) Workers' Compensation insurance, subject to the statutory limits of the State, and employer's liability insurance with a limit of at least $500,000 per accident and per disease per employee, and $500,000 for disease in the aggregate in respect of any work or operations on or about the Property, or in connection with the Property or its operations (if applicable). (7) Boiler & Machinery, or Equipment Breakdown Coverage insurance covering the major components of the central heating, air conditioning and ventilating systems, boilers, other pressure vessels, high pressure piping and machinery, elevators and escalators, if any, and other similar equipment installed in the Improvements, in an amount equal to one hundred percent (100%) of the full replacement cost of all equipment installed in, on or at the Improvements, with a maximum deductible of $250,000.00. These policies shall insure against physical damage to and loss of occupancy and use of the Improvements arising out of an accident or breakdown. (8) Insurance ("Terrorism Insurance") from and against losses, damages, costs, expenses, claims and liabilities related to or arising from acts of terrorism, of such types, in an amount equal to the full replacement cost of the Improvements, with such deductibles, issued by such companies, and on such forms of insurance policies as may from time to time be reasonably required by Lender in accordance with the requirements of Section 3.01(c) below. (The foregoing provision, however, shall not affect Borrower's right to provide such terrorism coverage through a blanket policy covering additional assets). (9) Business Automobile Insurance with a combined single limit of not less than $1,000,000 per occurrence for bodily injury and property damage arising out of the use of owned, non -owned, hired and/or leased automotive equipment when such equipment is operated by Borrower, Borrower's employees or Borrower's agents in connection with the Property. 13 WCSR 3847963 insurance program in which at least 90% of the coverage is provided by A.M. Best "Excellent" rated companies with a financial size of "X" and the balance of the coverage is provided by carvers with an A.M. Best rating of at least "Excellent" and a financial size of "VIII" so long as the primary layer and first excess layer are provided entirely by A.M. Best "Excellent" rated carriers with a financial size of "X". So called "Cut -through" endorsements shall not be permitted. If there are any Securities (as defined in Section 12.01) issued with respect to this Loan which have been assigned a rating by a credit rating agency approved by Lender (a "Rating Agency"), the insurance company shall have a claims paying ability rating by such Rating Agency equal to or greater than the rating of the highest class of the Securities. Borrower shall deliver evidence satisfactory to Lender of payment of premiums due under the insurance policies no later than fifteen (15) days before the dates upon which any insurance premiums would become delinquent. (d) Certified copies of the policies, and any endorsements, shall be made available for inspection by Lender upon request. If Borrower fails to obtain or maintain insurance policies and coverages as required by this Section 3.01 ("Required Insurance") then Lender shall have the right but shall not have the obligation immediately to procure any Required Insurance at Borrower's cost. (e) Borrower shall be required during the term of the Loan to continue to provide Lender with original renewal policies or replacements of the insurance policies referenced in Section 3.01 (a). Lender may accept Certificates of Insurance evidencing insurance policies referenced in subsections (a)(2), (a)(4), and (a)(6) of this Section 3.01 instead of requiring the actual policies. The Certificates of Insurance must be issued on an Acord 28 (2003/10), Acord 27 (3/93) or Acord 27 (2004/04) form. The Certificates of Insurance may also be issued on a proprietary form, as long as it does not include the language found on the Acord 28 (2006/07), or any similar language limiting the rights conferred to the certificate holder. Lender shall be provided with renewal Certificates of Insurance, or Binders, not less than fifteen (15) days prior to each expiration. The failure of Borrower to maintain the insurance required under this Article III shall not constitute a waiver of Borrower's obligation to fulfill these requirements. (f) All binders, policies, endorsements, certificates, and cancellation notices are to be sent to the Lender's Address for Insurance Notification as set forth in the Defined Terms until changed by notice from Lender. Section 3.02. ADJUSTMENT OF CLAIMS. Borrower is hereby authorized and empowered (unless an Event of Default exists hereunder) and using Borrower's discretion, to settle, adjust or compromise any claims of less than (x) $2,000,000 if the amount of the Loan is greater than or equal to $40,000,000.00 or (y) $1,000,000.00 if the amount of the Loan is greater than or equal to $20,000,000.00, but less than $40,000,000.00 or (z) $250,000.00 if the amount of the Loan is less than $20,000,000.00, for damage to, or loss or destruction of, all or a portion of the Property, regardless of whether there are Insurance Proceeds available or whether any such Insurance Proceeds are sufficient in amount to fully compensate for such damage, loss or destruction. For any such claims greater than the applicable amounts in the preceding sentence, however, Borrower is hereby only authorized and empowered to settle, adjust or compromise the same upon consultation with and with the prior consent (which consent shall not be unreasonably withheld, delayed or conditioned) of Lender. 15 WCSR 3847963 Section 3.03. ASSIGNMENT TO LENDER. In the event of the foreclosure of this Security Instrument or other transfer of the title to the Property in extinguishment of the Secured Indebtedness, all right, title and interest of Borrower in and to any insurance policy, or premiums or payments in satisfaction of claims or any other rights under these insurance policies and any other insurance policies covering the Property shall pass to the transferee of the Property. ARTICLE IV BOOKS, RECORDS AND ACCOUNTS Section 4.01. BOOKS AND RECORDS. Borrower shall keep adequate books and records of account in accordance with generally accepted accounting principles ("GAAP"), or in accordance with other methods acceptable to Lender in its sole discretion, consistently applied and furnish to Lender: (a) certified rent rolls signed and dated by Borrower, detailing the names of all tenants of the Improvements, the portion of Improvements occupied by each tenant, the base rent and any other charges payable under each Lease (as defined in Section 5.02) and the term of each Lease, including the expiration date, together with tenant sales reports (if such tenant sales reports are available and not subject to confidentiality protections), and any other information as is reasonably required by Lender, within forty-five (45) days after the end of each quarter; (b) a quarterly operating statement of the Property and year to date operating statements detailing the total revenues received, total expenses incurred, total cost of all capital improvements and total debt service, to be prepared and certified by Borrower in the form reasonably required by Lender, and if available, any quarterly operating statement, certified by an officer of the Borrower (or prepared by an independent certified public accountant, if Lender has a reasonable basis to request the same) within forty-five (45) days after the close of each quarter of Borrower; (c) an annual balance sheet and profit and loss statement of Borrower and Liable Party in the form reasonably required by Lender, prepared and certified by Borrower or Liable Party, as the case may be (and if required by Lender, the most recent existing (if any) audited and unaudited (but only if such audited or unaudited statements have actually been prepared) financial statements for Borrower or any Liable Party prepared by PriceWaterhouse Coopers or such other independent certified public accountant acceptable to Lender) within one hundred twenty (120) days after the close of each fiscal year of Borrower, or the Liable Party, as the case may be; and (d) an annual operating budget presented on a monthly basis consistent with the annual operating statement described above for the Property including all proposed capital replacements and improvements at least fifteen (15) days prior to the start of each calendar year. Section 4.02. PROPERTY REPORTS. Upon reasonable request from Lender or its representatives and designees (made no more frequently than semi-annually), Borrower shall furnish in a timely manner to Lender: (a) intentionally deleted. 16 WCSR 3847963 (b) an accounting of all security deposits held in connection with any Lease of any part of the Property. Section 4.03. ADDITIONAL MATTERS. (a) Borrower shall furnish Lender with such other additional financial or management information (including State and Federal tax returns) as may, from time to time, be reasonably requested by Lender or the rating agencies in form and substance satisfactory to Lender or the rating agencies. (b) Borrower shall furnish Lender and its agents convenient facilities at either the Property or Borrower's principal office for the examination and audit of any such books and records. (c) Lender and its representatives shall have the right upon ten (10) days prior written notice to examine and audit the records, books, management and other papers of Borrower and its Affiliates or any guarantor or indemnitor which reflect upon their financial condition and/or the income, expenses and operations of the Property, at the Property or at any office regularly maintained by Borrower and its Affiliates or any guarantor or indemnitor where the books and records are located during normal business hours. Lender shall have the right (at its cost) upon notice to make copies and extracts from the foregoing records and other papers. ARTICLE V LEASES AND OTHER AGREEMENTS AFFECTING THE PROPERTY Section 5.01. BORROWER'S REPRESENTATIONS AND WARRANTIES. As of the Execution Date, Borrower represents and warrants to Lender as follows: (a) To the knowledge of Borrower, there are no leases or occupancy agreements affecting the Property except those leases and amendments listed on the Rent Roll (the "Rent Roll") attached to the Certificate of Rent Roll delivered by Borrower to Lender of even date and to the knowledge of Borrower, Borrower has delivered to Lender true, correct and complete copies of all leases, including amendments (collectively, "Existing Leases") and all guaranties and amendments of guaranties given in connection with the Existing Leases (the "Guaranties"). (b) Borrower has not sent or received any written notice of default under the Existing Leases and Guaranties which has not been cured or waived. To the knowledge of Borrower, the Existing Leases and the Guaranties are in full force and effect. (c) To the best knowledge of Borrower, none of the tenants now occupying 10% or more of the Property or having a current lease affecting 10% or more of the Property is the subject of any bankruptcy, reorganization or insolvency proceeding or any other debtor - creditor proceeding. (d) No Existing Leases in excess of 30,000 square feet may be terminated or canceled unilaterally by a tenant and no tenant may be released from its obligations, except as set forth in any such Existing Leases. 17 WCSR 3847963 (e) The leases previously delivered to Lender in connection with the Loan, whether in written or electronic form, constitute all leases in the possession of Borrower and, to the knowledge of Borrower, are true and complete copies of all of the leases covering the Property. Section 5.02. ASSIGNMENT OF LEASES. In order to further secure payment of the Secured Indebtedness and the performance of Borrower's obligations under the Loan Documents, Borrower absolutely, presently and unconditionally grants, assigns and transfers to Lender all of Borrower's right, title, interest and estate in, to and under (i) all of the Existing Leases and Guaranties affecting the Property and (ii) all of the future leases, lease amendments, guaranties and amendments of guaranties and (iii) the Rents and Profits. Borrower acknowledges that it is permitted to collect, use and distribute the Rents and Profits and exercise all rights as landlord under the Leases pursuant to a revocable license unless and until Borrower receives notice from Lender or its designee that an Event of Default has occurred. Such license shall be reinstated when all Events of Default have been cured in Lender's reasonable discretion. The Existing Leases and Guaranties and all future leases, lease amendments, guaranties and amendments of guaranties are collectively referred to as the "Leases". Section 5.03. PERFORMANCE OF OBLIGATIONS. (a) Borrower shall perform all obligations under any and all Leases. If any of the acts described in this Section are done without the written consent of Lender, at the option of Lender, they shall be of no force or effect and shall constitute a default under this Security Instrument. (b) Borrower agrees to furnish Lender executed copies of all future Leases at least quarterly at or before the date quarterly operating statements are due under Section 4.01(b) hereof. Borrower shall not, without the express written consent of Lender, (i) enter into or extend any Lease unless the Lease complies with the "Leasing Guidelines" (as defined below), or (ii) cancel or terminate any Leases of more than 30,000 square feet of net leasable area or any Leases which would result in the Property being less than 85% leased and occupied after such lease termination, or (iii) modify or amend any Leases in any material way or reduce the rent thereunder, or (iv) consent to an assignment of the tenant's interest or to a subletting of the demised premises under any Lease, unless the tenants remain liable under the Leases or unless required by the Lease (or unless Borrower is obligated to do so under an express provision of the Lease), or (v) accept payment of advance rents in an amount in excess of one month's rent, or (vi) enter into any options to purchase the Property; provided, however, that notwithstanding the foregoing, the Borrower may take the actions described in (i) — (iv) above in the ordinary course of its operation of the Property in accordance with prevailing market terms, without Lender's prior approval as long as the Lease (or any extension, cancellation, modification or assignment relating thereto) following such action is or remains in compliance with the Leasing Guidelines (as defined below); and if Lender's approval is required, then such approval shall not be unreasonably withheld; and, provided further, that there will be no additional restrictions (i.e., other than the restrictions and limitations imposed above and in the Leasing Guidelines set forth below) on leasing of any portion of any Property to non -Affiliates so long as the nature, quality and character of the Property remains the same. With respect to any Lease or action described above requiring Lender's approval, Lender shall have 7 Business 18 WCSR 3847963 Days from receipt of a Lease or information as to the proposed action accompanied by a notice as described below to comment and in the event Lender does not respond within such 7 Business Day period the Lease" or such action will be deemed approved. The notice accompanying the Lease or such information must clearly state in bold type that failure to respond within 7 Business Days will result in a deemed approval of the accompanying Lease or such action. Any payment received by Borrower in connection with termination of a tenant's lease of 30,000 square feet or more shall be deposited with Lender in an interest- bearing account and shall be paid to Borrower to reimburse Borrower, from time to time, for re -tenanting costs on terms customarily required by Lender in such circumstances so long as no Event of Default exists. "Business Day" shall mean any day excluding Saturdays, Sundays and any day that is, in New York, New York, a legal holiday or a day on which banking institutions are required or authorized by law or other governmental actions to close. (c) "Leasing Guidelines" shall mean the guidelines approved in writing by Lender, from time to time, with respect to the Leasing of the Property and Affiliate Loan Properties; provided, however, Lender shall not change such Leasing Guidelines or impose additional guidelines or restrictions on the leasing of the Property (other than as set forth in this Section 5.03) without Borrower's consent. The following are the initial Leasing Guidelines: (i) All Leases shall have a term (including options) of not more than 15 years; (ii) None of the Leases shall be for more than 30,000 square feet of net leasable area; (iii) All Leases shall be on market terms; (iv) No Leases shall be entered into if an Event of Default has occurred and is continuing; (v) All payments of rent, additional rent or any other amounts due from a tenant to a landlord under any Lease shall be made in money of the United States of America that at the time of payment shall be legal tender for the payment of all obligations; (vi) Lender's approval also shall be required to terminate any Leases of more than 30,000 sq. ft. of net leasable area or any Leases which would result in the Property being less than 85% leased and occupied after such lease termination. Section 5.04. SUBORDINATE LEASES. Each future Lease affecting the Property shall be absolutely subordinate to the lien of this Security Instrument and shall also contain a provision, reasonably satisfactory to Lender, to the effect that in the event of the judicial or non judicial foreclosure of the Property, at the election of the acquiring foreclosure purchaser, the particular Lease shall not be terminated and the tenant shall attorn to the purchaser. If requested to do so, the tenant shall agree to enter into a new Lease for the balance of the term upon the same terms and conditions. The requirements in the preceding two sentences may be effectuated either by self - operative provisions within the Lease or by way of a subordination, non -disturbance and attornment agreement in a commercially reasonable form acceptable to Lender subject to the form requirements set forth below. If Lender requests, Borrower shall use its commercially reasonable 19 WCSR 3847963 efforts to cause a tenant or tenants to enter into subordination and attomment agreements or nondisturbance agreement with Lender on one of the two forms described below. Lender shall, upon the written request of Borrower, provide non -disturbance protection (pursuant to the form designated by Lender in the side letter of even date herewith between Lender and Borrower's Property Manager or such other form approved by Lender (including a form agreed to by Lender with the same tenant in the State where the Property is located within the previous one year period), which approval shall not be unreasonably withheld, conditioned or delayed; provided, however, it would be reasonable for Lender to withhold its approval of any subordination, non- disturbance and attornment agreement which would result, upon foreclosure, in Lender becoming liable under any indemnity not customarily accepted by Lender in its ownership of similar properties) to any tenant whose Lease is permitted pursuant to Section 5.03(b) and is on the form Lease or a national tenant form approved by Lender with no material changes. Borrower agrees to pay the reasonable costs and expenses of Lender's counsel in connection with (a) the review of any Lease requiring a non -disturbance agreement (or for which a non -disturbance agreement is requested), and (b) the preparation and negotiation of a non -disturbance agreement in connection with any Lease. Lender agrees that the foregoing is not intended to grant Lender any greater lease approval rights in those instances where a non -disturbance agreement is not being requested other than those as set forth in Section 5.03(b) of this Security Instrument, except that Borrower acknowledges and agrees that Lender shall not be required to furnish a non -disturbance agreement for any Lease that has not been approved by Lender except as provided for in this Section 5.04. Section 5.05. LEASING COMMISSIONS. Borrower covenants and agrees that all contracts and agreements relating to the Property requiring the payment of leasing commissions, management fees or other similar compensation shall (i) provide that the obligation will not be enforceable against Lender and (ii) be subordinate to the lien of this Security Instrument. Lender will be provided evidence of Borrower's compliance with this Section upon request. ARTICLE VI ENVIRONMENTAL HAZARDS Section 6.01. REPRESENTATIONS AND WARRANTIES. Borrower hereby represents, warrants, covenants and agrees to and with Lender that (i) except as disclosed in Environmental Site Assessment obtained by Lender in connection with the Loan with respect to the Property (the "Environmental Report"), neither Borrower nor, to the Borrower's knowledge, any tenant, subtenant or occupant of the Property, has at any time placed, suffered or permitted the presence of any Hazardous Materials (as defined in Section 6.05) at, on, under, within or about the Property except as expressly approved by Lender in writing (and except for nominal amounts of cleaning solvents and other similar materials used by tenants in the ordinary course of their business and otherwise in compliance with the Requirements of Environmental Laws), and (ii) except as disclosed in the Environmental Report, all operations or activities upon the Property, and any use or occupancy of the Property by Borrower are presently and shall in the future be in compliance with all Requirements of Environmental Laws (as defined in Section 6.06), (iii) Borrower will use commercially reasonably efforts to assure that any tenant, subtenant or occupant of the Property shall in the future be in compliance with all Requirements of Environmental Laws, (iv) except as disclosed in the Environmental Report, all operations or activities upon the Property are presently and shall in the future be in compliance with all Requirements of Environmental Laws, (v) except as disclosed in the Environmental Report, Borrower does not know of, and has not received, any 20 WCSR 3847963 written or oral notice from any person or entity (including, without limitation, a governmental entity) relating to Hazardous Materials or Remedial Work pertaining thereto, of possible liability of any person or entity pursuant to any Requirements of Environmental Laws, other environmental conditions in connection with the Property, or any actual administrative or judicial proceedings in connection with any of the foregoing, (vi) Borrower shall not knowingly do or allow any tenant or other user of the Property to do any act that materially increases the dangers to human health or the environment, poses an unreasonable risk of harm to any person or entity (whether on or off the Property), is contrary to any requirement of any insurer, constitutes a public or private nuisance, constitutes waste, or violates any covenant, condition, agreement or easement applicable to the Property, and (vii) Borrower has truthfully and fully provided or made available to Lender, in writing, any and all information relating to environmental conditions in, on, under or from the Property that is known to Borrower and that is contained in Borrower's files and records, including, without limitation, any reports relating to Hazardous Materials in, on, under or from the Property and/or to the environmental condition of the Property. Section 6.02. REMEDIAL WORK. In the event any investigation or monitoring of site conditions or any clean-up, containment, restoration, removal or other remedial work (collectively, the "Remedial Work") is required under any Requirements of Environmental Laws, Borrower shall perform or cause to be performed the Remedial Work in compliance with the applicable law, regulation, order or agreement. All Remedial Work shall be performed by one or more contractors, selected by Borrower and approved in advance in writing by Lender (not to be unreasonably withheld, delayed or conditioned), and under the supervision of a consulting engineer, selected by Borrower and approved in advance in writing by Lender (not to be unreasonably delayed or conditioned). All costs and expenses of Remedial Work shall be paid by Borrower including, without limitation, the charges of the contractor(s) and/or the consulting engineer, and Lender's reasonable attorneys' fees and costs incurred in connection with monitoring or review of the Remedial Work. In the event Borrower shall fail to timely commence, or cause to be commenced, or fail to diligently prosecute to completion, the Remedial Work, Lender may, but shall not be required to, cause such Remedial Work to be performed, subject to the provisions of Sections 11.05 and 11.06. Section 6.03. ENVIRONMENTAL SITE ASSESSMENT. Lender shall have the right, at any time during the continuance of an Event of Default and from time to time if Lender reasonably believes there is an adverse environmental condition, to undertake, at the expense of Borrower, an environmental site assessment on the Property, including any testing that Lender may determine, in its sole and reasonable discretion, is necessary or desirable to ascertain the environmental condition of the Property and the compliance of the Property with Requirements of Environmental Laws, provided, however, that Borrower is not obligated to pay for subsequent environmental testing or environmental site assessments unless an independent third party consultant determines they are reasonably necessary, or Lender has other reason to believe a change in the environmental condition of a Property has occurred, or an Event of Default exists. Borrower shall cooperate fully with Lender and its consultants performing such assessments and tests. Section 6.04. UNSECURED OBLIGATIONS. No amounts which may become owing by Borrower to Lender under this Article VI or under any other provision of this Security Instrument as a result of a breach of or violation of this Article VI shall be secured by this Security Instrument. The obligations shall continue in full force and effect and any breach of 21 WCSR 3847963 this Article VI shall constitute an Event of Default. The lien and security title of this Security Instrument shall not secure (i) any obligations evidenced by or arising under the Indemnity Agreement ("Unsecured Obligations"), or (ii) any other obligations to the extent that they are the same or have the same effect as any of the Unsecured Obligations. The Unsecured Obligations shall continue in full force, and any breach or default of any such obligations shall constitute a breach or default under this Security Instrument but the proceeds of any foreclosure sale shall not be applied against Unsecured Obligations. Nothing in this Section shall in any way limit or otherwise affect the right of Lender to obtain a judgment in accordance with applicable law for any deficiency in recovery of all obligations that are secured by this Security Instrument following foreclosure, notwithstanding that the deficiency judgment may result from diminution in the value of the Property by reason of any event or occurrence pertaining to Hazardous Materials or any Requirements of Environmental Laws. Section 6.05. HAZARDOUS MATERIALS. "Hazardous Materials" shall include without limitation: (a) Those substances included within the definitions of "hazardous substances," "hazardous materials," "toxic substances," or "solid waste" in the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 as amended, 42 U.S.C. Sections 9601 et seq., the Resource Conservation and Recovery Act of 1976, 42 U.S.C. Sections 6901 et seq., and the Hazardous Materials Transportation Act, 49 U.S.C. Sections 5101 et seq., and in the regulations promulgated pursuant to said laws; (b) See Special State Provisions, Section 15.01(a) below; (e) Those chemicals known to cause cancer or reproductive toxicity, as published pursuant to any applicable laws; (d) Those substances listed in the United States Department of Transportation Table of Hazardous Materials and Special Provisions (49 CFR 172.101 and amendments thereto) or by the Environmental Protection Agency (or any successor agency) as hazardous substances (40 CFR Part 302 and amendments thereto); (e) Any material, waste or substance which is (A) petroleum, (B) asbestos, (C) polychlorinated biphenyls, (D) designated as a "hazardous substance" pursuant to Section 311 of the Clean Water Act, 33 U.S.C. Section 1251 et seq. (33 U.S.C. Section 1321) or listed pursuant to Section 307 of the Clean Water Act (33 U.S.C. Section 1317); (E) a chemical substance or mixture regulated under the Toxic Substances Control Act of 1976, 15 U.S.C. Sections 2601 et seq.; (F) flammable explosives; or (G) radioactive materials; and (f) Such other substances, materials and wastes which are or become regulated as hazardous or toxic under applicable local, state or federal law, or the United States government, or which are classified as hazardous or toxic under federal, state, or local laws or regulations. Section 6.06. REQUIREMENTS OF ENVIRONMENTAL LAWS. "Requirements of Environmental Laws" means all requirements of environmental, ecological, health, or industrial hygiene laws or regulations or rules of common law related to the Property, including, without limitation, all requirements imposed by any environmental permit, law, rule, 22 WCSR 3847963 order, or regulation of any federal, state, or local executive, legislative, judicial, regulatory, or administrative agency, which relate to (i) exposure to Hazardous Materials; (ii) pollution or protection of the air, surface water, ground water, land; (iii) solid, gaseous, or liquid waste generation, treatment, storage, disposal, or transportation; or (iv) regulation of the manufacture, processing, distribution and commerce, use, or storage of Hazardous Materials. ARTICLE VII CASUALTY, CONDEMNATION AND RESTORATION Section 7.01. BORROWER'S REPRESENTATIONS. As of the Execution Date, Borrower represents and warrants as follows: (a) Except as expressly approved by Lender in writing, no casualty or damage to any part of the Property which would cost more than $100,000 to restore or replace has occurred which has not been fully restored or replaced. (b) No part of the Property is subject to any condemnation or other similar proceeding or transferred in lieu of condemnation, nor has Borrower received written notice of any proposed condemnation or other similar proceeding affecting the Property. (c) There is no pending proceeding for the total or partial condemnation of the Property. Section 7.02. RESTORATION. (a) Borrower shall give prompt written notice of any casualty to the Property to Lender which would cost more than $100,000 to restore or replace has occurred which has not been fully restored or replaced whether or not required to be insured against. The notice shall describe the nature and cause of the casualty and the extent of the damage to the Property. Borrower covenants and agrees to commence and diligently pursue to completion the Restoration. (b) Borrower assigns to Lender all Insurance Proceeds which Borrower is entitled to receive in connection with a casualty whether or not such insurance is required under this Security Instrument. The foregoing notwithstanding, in the event of any damage to or destruction of the Property, and provided (1) an Event of Default does not currently exist, and (2) Lender has determined (acting in its sole but reasonable judgment) that (i) there has not been an Impairment of the Security (as defined in Section 7.02 (c)), and (ii) the repair, restoration and rebuilding of any portion of the Property that has been partially damaged or destroyed (the "Restoration") can be accomplished in full compliance with all Requirements to the same condition, character and general utility as nearly as possible to that existing prior to the casualty and at least equal in value as that existing prior to the casualty, the Net Insurance Proceeds shall be applied to the Cost of Restoration in accordance with the terms of this Article. In the event of a casualty involving less than (x) $1,000,000, if the Loan is in excess of $25,000,000 or (y) $250,000, if the Loan is less than $25,000,000 (the "Insurance Threshold"), Borrower shall have the right to receive the Net Insurance Proceeds and apply the same to the cost of Restoration. In the event of a casualty involving more than the Insurance Threshold, Lender shall hold and disburse the Insurance Proceeds less the cost, if 23 WCSR 3847963 Section 7.03. CONDEMNATION. (a) If the Property or any part of the Property is taken by reason of any condemnation or similar eminent domain proceeding, or by a grant or conveyance in lieu of condemnation or eminent domain ("Condemnation"), Lender shall be entitled to all compensation, awards, damages, proceeds and payments or relief for the Condemnation ("Condemnation Proceeds"). At its option, Lender shall be entitled to commence, appear in and prosecute in its own name any action or proceeding or upon consultation with Borrower to make any compromise or settlement in connection with such Condemnation (provided, however, that in no event shall Lender be obliged to consult with Borrower if an Event of Default has occurred and is continuing). Upon the occurrence and continuance of an Event of Default, and with prior notice to Borrower, Borrower hereby irrevocably constitutes and appoints Lender as its attorney-in-fact, which appointment is coupled with an interest, to commence, appear in and prosecute any action or proceeding or to make any compromise or settlement in connection with any such Condemnation. (b) Borrower assigns to Lender all Condemnation Proceeds which Borrower is entitled to receive. Notwithstanding the foregoing, or Section 7.03(a), in the event of any Condemnation, and provided (1) an Event of Default does not currently exist, and (2) Lender has determined (acting in a commercially reasonable manner) that (i) there has not been an Impairment of the Security, and (ii) the Restoration of any portion of the Property that has not been taken can be accomplished in full compliance with all Requirements to the same condition, character and general utility as nearly as possible to that existing prior to the taking and at least equal in value as that existing prior to the taking, then Borrower shall commence and diligently pursue to completion the Restoration. In the event of a condemnation involving less than (x) $500,000, if the Loan is in excess of $25,000,000 or (y) $250,000, if the Loan is less than $25,000,000 ("Condemnation Threshold"), Borrower shall have the right to receive the Net Condemnation Proceeds and apply the same to the Restoration. In the event of a condemnation involving more than the Condemnation Threshold, Lender shall hold and disburse the Condemnation Proceeds less the cost, if any, to Lender of recovering the Condemnation Proceeds including, without limitation, reasonable attorneys' fees and expenses, and adjusters' fees (the "Net Condemnation Proceeds") to the Restoration. Any Net Condemnation Proceeds held by Lender shall be placed in an interest bearing account, with accrued interest thereon being applied to the Restoration. (c) In the event the Net Condemnation Proceeds are to be used for the Restoration, Borrower shall comply with Lender's Requirements For Restoration as set forth in Section 7.04 below. Upon Borrower's satisfaction and completion of the Requirements For Restoration and upon confirmation that there is no Event of Default then existing, Lender shall pay any remaining Restoration Funds (as defined in Section 7.04 below) (including any interest thereon) then held by Lender to Borrower. (d) In the event that the conditions for Restoration set forth in this Section have not been met, Lender may, at its option, apply the Net Condemnation Proceeds to the reduction of the Loan in such order as Lender may determine and Lender may declare the entire Loan immediately due and payable (without payment of the Prepayment Fee, if no Event of Default exists (nor any event which, with notice or the passage of time or both, would constitute an Event of Default), but in any case with the payment of the Additional Partial Release Principal Payment). After payment in full of the Loan (but subject to the requirements 25 WCSR 3847963 of Section 10.06(c) to make the Additional Partial Release Principal Payment upon condemnation or deed in lieu of condemnation), any remaining Net Condemnation Proceeds shall be applied to the extent of and in the same manner as an Additional Partial Release Principal Payment would have been applied if a partial release had occurred under Section 10.06 and any excess, if no Event of Default exists, shall be paid to Borrower. Section 7.04. REQUIREMENTS FOR RESTORATION. Unless otherwise expressly agreed in a writing signed by Lender, the following are the Requirements For Restoration: (a) If the Net Insurance Proceeds or Net Condemnation Proceeds are to be used for the Restoration, prior to the commencement of any Restoration work (the "Work"), Borrower shall provide Lender for its review and written approval (not to be unreasonably withheld, delayed or conditioned) (i) complete plans and specifications for the Work which (A) have been approved by all required governmental authorities, (B) have been reasonably approved by an architect reasonably satisfactory to Lender (the "Architect") and (C) are accompanied by Architect's signed statement of the total estimated cost of the Work (the "Approved Plans and Specifications"); (ii) the amount of money which Lender reasonably determines will be sufficient when added to the Net Insurance Proceeds or Condemnation Proceeds to pay the entire cost of the Restoration (collectively referred to as the "Restoration Funds"); (iii) evidence that the Approved Plans and Specifications and the Work are in compliance with all Requirements; (iv) an executed contract for construction with a contractor satisfactory to Lender (the "Contractor") in a form reasonably approved by Lender in writing; and (v) if the Net Insurance Proceeds or Net Condemnation Proceeds, as the case may be, exceed $1,000,000, a surety bond or guarantee of payment with respect to the completion of the Work. The bond or guarantee shall be reasonably satisfactory to Lender in form and amount and shall be signed by a surety or other entities that are reasonably acceptable to Lender. (b) Borrower shall not commence the Work, other than temporary work to protect the Property or prevent interference with business, until Borrower shall have complied with the requirements of subsection (a) of this Section 7.04. So long as there does not currently exist an Event of Default and the following conditions have been complied with or, in Lender's discretion, waived, Lender shall disburse the Restoration Funds in monthly increments to Borrower as the Work progesses on the following terns and conditions: (i) Architect shall be in charge of the Work. (ii) Lender shall disburse the Restoration Funds directly or through escrow with a title company selected by Borrower and reasonably approved by Lender, upon not less than ten (10) days' prior written notice from Borrower to Lender and Borrower's delivery to Lender of (A) Borrower's written request for payment (a "Request for Payment") accompanied by a certificate by Architect in a form reasonably satisfactory to Lender which states that (i) all of the Work completed to that date has been completed in compliance with the Approved Plans and Specifications and in accordance with all Requirements, (ii) the amount requested has been paid or is then due and payable and is properly a part of the cost of the Work, and (iii) when added to all sums previously paid by Lender, the requested amount does not exceed the value of the Work completed to the date of such certificate; and (B) evidence reasonably satisfactory to Lender that the balance of the Restoration Funds remaining after making the payments shall be sufficient to pay the balance of the cost of the Work. Each Request for Payment shall be accompanied by (x) waivers of liens covering that part of the Work previously paid for (unless 26 WCSR 3847963 said request is for a payment of $5,000 or less but in no event shall the Requests for Payment made by Borrower without a lien waiver exceed $100,000 in the aggregate), if any (y) a title search or by other evidence reasonably satisfactory to Lender that no mechanic's or materialmen's liens or other similar liens for labor or materials supplied in connection with the Work have been filed against the Property and not discharged of record or bonded -off, and (z) an endorsement to Lender's title policy insuring that no encumbrance exists on or affects the Property other than the Permitted Exceptions and other exceptions expressly permitted pursuant to the terms of this Security Instrument. (iii) The final Request for Payment shall be accompanied by (i) if requested by Lender, acting reasonably, a final certificate of occupancy or other evidence of approval of appropriate governmental authorities for the use and occupancy of the Improvements, (ii) evidence that the Restoration has been completed in accordance with the Approved Plans and Specifications and all Requirements, (iii) evidence that the costs of the Restoration have been paid in full (or will be paid in full with such final payment), and (iv) evidence that no mechanic's or similar liens for labor or material supplied in connection with the Restoration are outstanding against the Property or have been bonded -off to Lender's satisfaction, including final waivers of liens covering all of the Work and an endorsement to Lender's title policy insuring that no encumbrance exists on or affects the Property other than the Permitted Exceptions and other exceptions expressly permitted pursuant to the terms of this Security Instrument. (c) If (i) within one hundred and eighty (180) days after the occurrence of any damage, destruction or condemnation requiring Restoration, Borrower fails to submit to Lender and receive Lender's approval (not to be unreasonably withheld) of plans and specifications or fails to deposit with Lender the additional amount necessary to accomplish the Restoration as provided in subparagraph (a) above, or (ii) after such plans and specifications are approved by all such governmental authorities and Lender, Borrower fails to commence promptly or diligently continue to completion the Restoration, or (iii) Borrower becomes delinquent in payment to mechanics, materialmen or others for the costs incurred in connection with the Restoration unless a bona fide dispute has arisen, or (iv) there exists an Event of Default, then, in addition to all of the rights herein set forth and after ten (10) days' written notice of the non -fulfillment of one or more of these conditions, Lender may apply the Restoration Funds to reduce the Secured Indebtedness in such order as Lender may determine, and at Lender's option and in its sole discretion, Lender may declare the Secured Indebtedness immediately due and payable (without payment of a prepayment fee if the conditions for Restoration set forth in this Section have not been met through no fault of Borrower, as reasonably determined by Lender). ARTICLE VIII REPRESENTATIONS OF BORROWER Section 8.01. ERISA. Borrower hereby represents, warrants and agrees that: (i) as of the Execution Date, it is acting on its own behalf and that it is not an employee benefit plan as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA''), which is subject to Title l of ERISA, nor a plan as defined in Section 4975(e)(1) of the Internal Revenue Code of 1986, as amended (each of the foregoing hereinafter referred to collectively as a "Plan"); (ii) as of the Execution Date, Borrower's assets do not constitute "plan assets" of one or more such Plans within the meaning of Department of Labor Regulation Section 2510.3-101; (iii) it will not be reconstituted as a Plan or as an entity whose assets 27 WCSR 3847963 constitute "plan assets", (iv) Borrower will not engage in any transaction which would cause any obligation hereunder to be a non-exempt prohibited transaction under ERISA; and (v) Borrower will deliver to Lender such certifications or other evidence of its compliance with this Section from time to time throughout the Loan as Lender may request. Section 8.02. NON -RELATIONSHIP. Neither Borrower nor any general partner, director, member or officer of Borrower nor, to Borrower's knowledge, any person who is a Borrower's Constituent (as defined in Section 8.03) is (i) a director or officer of Metropolitan Life Insurance Company ("MetLife"), (ii) a parent, son or daughter of a director or officer of MetLife, or, to Borrower's knowledge, a descendent of any of them, (iii) a stepparent, adopted child, stepson or stepdaughter of a director or officer of MetLife, or (iv) a spouse of a director or officer of MetLife. Section 8.03. NO ADVERSE CHANGE. Borrower represents and warrants that, as of the Execution Date: (a) there has been no material adverse change from the conditions shown in the application submitted for the Loan by Borrower and Borrower's Affiliates (the "Application") or in the materials submitted in connection with the Application in the credit rating or financial condition of Borrower, the general partners, shareholders or members of Borrower or any entity which is a general partner, shareholder or member of Borrower, respectively as the case maybe (collectively, "Borrower's Constituents"). (b) Borrower has delivered to Lender true and correct copies of all Borrower's organizational documents and except as expressly approved by Lender in writing, there have been no changes in Borrower's Constituents since the date that the Application was executed by Borrower. (c) Neither Borrower, nor any of the Borrower's Constituents, is involved in any bankruptcy, reorganization, insolvency, dissolution or liquidation proceeding, and to the best knowledge of Borrower, no such proceeding is contemplated or threatened. (d) Borrower has received reasonably equivalent value for the granting of this Security Instrument. (e) Borrower is not involved in any litigation, arbitration, or other proceeding or governmental investigation pending which if determined adversely would materially adversely affect Borrower's ability to perform in accordance with the Loan Documents, except as expressly set forth otherwise in the Omnibus Borrowers' Closing Certificate delivered by Borrower and Borrower's Affiliates contemporaneously with the delivery hereof. Section 8.04. FOREIGN INVESTOR. Neither Borrower nor any member of Borrower is, and no legal or beneficial interest in a member of Borrower (other than shareholders of publicly traded entities) is or will be held, directly or indirectly by, a "foreign person" within the meaning of Sections 1445 and 7701 of the Internal Revenue Code of 1986, as amended. Section 8.05. US PATRIOT ACT. Neither Borrower nor any partner, member or stockholder of Borrower is, and no legal or beneficial interest in a partner, member or stockholder of Borrower is or will be held, directly or indirectly by a person or entity that 28 WCSR 3847963 appears on a list of individuals and/or entities for which transactions are prohibited by the US Treasury Office of Foreign Assets Control or any similar list maintained by any other governmental authority, with respect to which entering into transactions with such person or entity would violate the US Patriot Act or regulations or any Presidential Executive Order or any other similar applicable law, ordinance, order, rule or regulation. For the avoidance of doubt, the foregoing does not apply to any shareholders of publicly -held entities. ARTICLE IX EXCULPATION AND LIABILITY Section 9.01. LIABILITY OF BORROWER. (a) Upon the occurrence of an Event of Default, except as provided in this Section 9.01 and similar provisions in any Loan Document or Affiliate Loan Document, Lender will look solely to the Property, the Assignment and the other security under the Loan Documents and the Affiliate Loan Documents for the repayment of the Loan and will not seek or enforce a deficiency judgment against Borrower or its members. However, nothing contained in this section shall limit the rights of Lender to proceed against Borrower and/or the Liable Party (i) to enforce any Leases entered into by Borrower or its Affiliates as tenant, guarantees, or other agreements entered into by Borrower in a capacity other than as Borrower; (ii) to recover damages for fraud, intentional material misrepresentation, intentional material breach of warranty or intentional physical waste; (iii) to recover any Condemnation Proceeds or Insurance Proceeds or other similar funds which have been misapplied by Borrower or which, under the terms of the Loan Documents, should have been paid to Lender; (iv) to recover any tenant security deposits, tenant letters of credit or other deposits (which have not been properly applied by Borrower, as landlord, following a tenant default) or fees paid to Borrower that are part of the collateral for the Loan or prepaid rents for a period of more than 30 days which have not been delivered to Lender; (v) to recover Rents and Profits received by Borrower after the first day of the month in which an Event of Default occurs and prior to the date Lender acquires title to the Property which have not been applied to the Loan or in accordance with the Loan Documents to operating and maintenance expenses of the Property; (vi) to recover damages, costs and expenses arising from, or in connection with Article VI of this Security Instrument pertaining to hazardous materials or the Indemnity Agreement; (vii) to recover all out-of-pocket expenses incurred by Lender after the occurrence of an Event of Default in realizing upon the Property or any other collateral for the Loan to the extent such expenses are incurred as a consequence of the acts of Borrower in resisting or interfering with the foreclosure process; or (viii) to recover damages arising from Borrower's failure to comply with Section 8.01 of this Security Instrument pertaining to ERISA; and/or (ix) to recover any Impositions or Premiums not paid by Borrower to the extent Borrower is not required to pay Impositions or Premiums directly to Lender pursuant to Section 2.05 of this Security Instrument (but only to the extent there was available cash flow generated by the Property during the period of time that such deposits were not required under said Section 2.05 as long as such Impositions and Premiums were treated with first priority out of such available cash flow). (b) The limitation of liability set forth in this Section 9.01 shall not apply and the Loan shall be fully recourse to the Borrower and the Liable Party in the event that Borrower commences a voluntary bankruptcy or insolvency proceeding or an involuntary bankruptcy or insolvency proceeding is commenced against Borrower (other than by Lender or 29 WCSR 3847963 a party acting at the request of Lender) and is not dismissed within 90 days of filing. In addition, this agreement shall not waive any rights which Lender would have under any provisions of the U.S. Bankruptcy Code to file a claim for the full amount of the Secured Indebtedness or to require that the Property shall continue to secure all of the Secured Indebtedness. Furthermore, the limitation of liability set forth in this Section 9.01 shall not apply and the Loan shall be fully recourse to Borrower, the Liable Party and any mediate or immediate transferee of the proceeds of a prohibited Transfer or prohibited Subordinate Financing in the event that prior to the repayment of the Secured Indebtedness, in the event of a Transfer (as hereinafter defined in Section 10.01(a)) or Subordinate Financing (as hereinafter defined in Section 10.02) except as expressly permitted in the Loan Documents or as may otherwise be approved in writing by Lender (which consent may be given or withheld in the exercise of Lender's sole and absolute discretion). (c) Notwithstanding anything to the contrary in any Loan Document or Affiliate Loan Document, no Exculpated Person shall have any personal liability (whether by suit for deficiency judgment or otherwise) under the Loan Documents, all such liability, if any, being expressly waived by Lender. For purposes hereof the term "Exculpated Person" shall mean any person other than the Liable Party, Borrower's Affiliates and Borrower, including without limitation in the term Exculpated Person each and all of the following (whether a natural person or otherwise): (i) DDR, (ii) any Affiliate or subsidiary of, or fund managed by, DDR, other than the Borrower, Borrower's Affiliates and the Liable Party and (iii) each direct and indirect shareholder, beneficiary, trustee, member, officer, director, independent director, agent, manager, independent manager, employee, limited partner, investment advisor and investment manager of any of the foregoing. ARTICLE X CHANGE IN OWNERSHIP, CONVEYANCE OF PROPERTY RIGHT OF SUBSTITUTION Section 10.01. CONVEYANCE OF PROPERTY CHANGE IN OWNERSHIP AND COMPOSITION. (a) Except as permitted in this Article X, Borrower shall not cause or permit directly or indirectly: (i) the Property or any interest in the Property, to be conveyed, transferred, assigned, encumbered, sold or otherwise disposed of, or (ii) any transfer, assignment or conveyance of any interest in Borrower or in the partners, or stockholders, or members or beneficiaries of, or the constituent entities owning, directly or indirectly, interests in Borrower, or (iii) any merger, reorganization, dissolution or other change in the ownership structure of Borrower or any of the members of Borrower, including, without limitation, any conversion of Borrower or any member of Borrower from a limited liability company to a limited partnership or a limited liability partnership (collectively, "Transfers"). However, these prohibitions will not apply to Transfers of ownership (a) as a result of the death, or in connection with estate planning, of a natural person to a spouse, son or daughter or descendant of either, or to a stepson or stepdaughter or descendant of either or (b) by any shareholders of publicly -held entities. Borrower shall pay all costs and expenses, including reasonable attorneys fees and disbursements, incurred by Lender in connection with any Transfer. The Borrower represents and warrants that on the date of this Security Instrument, Borrower is wholly owned, either directly or indirectly, by DDR. 30 WCSR 3847963 (b) Notwithstanding anything to the contrary set forth in Section 10.01(a) above, Transfers of any or all of the Property and/or Affiliate Loan Properties or of interests in Borrower and Borrower's Affiliates or in any entity which is a general partner, shareholder or member of Borrower or Borrower's Affiliates will be permitted without transfer fees or Lender's consent so long as (1) the Transfers are among the original members of the Borrower and Borrower's Affiliates or the original general partners, shareholders or members of Borrower and Borrower's Affiliates, or (2) Transfers are by a Permitted Owner of all or a portion of its interest to other Permitted Owners; provided, however, that Transfers of all of the Property and Affiliate Loan Properties or of interests by a Permitted Owner in all of Borrower and Borrower's Affiliates to a joint venture in which a Permitted Owner retains at least a 51 % majority interest and remains as managing member, general partner or otherwise directly or indirectly controls such joint venture, shall also be permitted without transfer fees or Lender's consent. Borrower and Borrower's Affiliates will pay any Lender out of pocket expenses incurred in connection with such a Transfer to a joint venture. All other transfers shall require Lender's prior written consent and, except as expressly provided otherwise in this Section 10.01, payment of a transfer fee equal to one percent (1.0%) of the outstanding amount of the Total Loan. "Permitted Owner" shall mean DDR, or an entity that is 100% directly and/or indirectly owned by DDR. (c) So long as no Event of Default has occurred and is continuing, Borrower and Borrower's Affiliates may transfer interests in all (but not less than all) of the Property and Affiliate Loan Properties to a joint venture in which DDR retains at least a 10% ownership interest and remains as the managing member, general partner or otherwise directly or indirectly controls such joint venture. Transfers are permitted pursuant to this subparagraph 10.01(c) subject to (1) Borrower and Borrower's Affiliates payment of a transfer fee of 0.25% of the then outstanding amount of the Total Loan and (2) Lender's approval of the transferee in its sole discretion. Borrower and Borrower's Affiliates will pay any Lender out-of-pocket expenses incurred in connection with any such Transfers. (d) Transfers of interests permitted pursuant to subsections 10.01(b) and (c) above shall additionally require that either DDR or an Affiliate of DDR remains the property manager for the Property and Affiliate Loan Properties or Borrower and Borrower's Affiliates retain a Qualified Manager approved by Lender. In addition, if a Transfer under subsection 10.01(b) or 10.01(c) above is a Transfer of the title to a Property (instead of a Transfer of interests in a Borrower or Borrower's Affiliate), then the transferee shall execute such assumption documents as Lender shall reasonably require and provide such title updates and endorsements pertaining to the change of ownership and the assumption as Lender may reasonably require. (e) Notwithstanding anything to the contrary contained herein, Borrower and Borrower's Affiliates shall have a one-time right to transfer all of the Property and Affiliate Loan Properties (collectively, but not individually) to a third party pursuant to a sale of the Property and Affiliate Loan Properties or transfer of ownership interests, and the Loan and Affiliate Loans may be assumed by such transferee upon 30 days written notice to Lender by Borrower and/or Borrower's Affiliates so long as: (i) no Event of Default has occurred and is continuing; (ii) Lender has received the same type of due diligence information with respect to the transferee as it received with respect to Borrower and Borrower's Affiliates; (iii) Lender has approved the transferee based on the underwriting and credit criteria then being used by Lender in approving similar loans (with approval not to be unreasonably withheld) or the proposed transferee is a Qualified Transferee; (iv) the transferee shall be able to make the 31 WCSR 3847963 ERISA representations set forth in Section 8.01 of this Security Instrument, and the representations set forth in Article VIII of this Security Instrument; (v) DSCR (as hereinafter defined) as of the date of the Transfer, as determined by Lender in a commercially reasonable manner, derived from the Property and Affiliate Loan Properties shall be no less than the DSCR on the date of this Security Instrument, (vi) the loan to value ratio of the Property and Affiliate Loan Properties as of the date of the Transfer, as determined by Lender in its sole discretion, shall not be greater than the loan to value ratio on the date of this Security Instrument, (vii) Borrower and Borrower's Affiliates or the transferee shall pay a fee equal to one percent (1%) of the outstanding principal balance of the Total Loan at the time of the assumption, (viii) the transferee shall expressly assume the Loan Documents and Affiliate Loan Documents and the applicable Indemnity Agreements in a manner reasonably satisfactory to Lender and Liable Parties reasonably acceptable to Lender shall execute a Guaranty with respect to events arising or occurring from and after the date of the Transfer, which additional Liable Parties (in the aggregate if more than one) must be a Qualified Transferee, (ix) the transferee must be a Qualified Transferee or a special purpose entity wholly owned by a Qualified Transferee, (x) the transferee must be experienced in the ownership, management and leasing of properties similar to the Property and Affiliate Loan Properties, (xi) Borrower and Borrower's Affiliates or transferee shall pay all costs and expenses incurred by Lender in connection with the Transfer, including title insurance premiums, documentation costs and reasonable attorneys' fees and (xii) if the Total Loan has been securitized, Lender shall have received confirmation that the assumption of the Total Loan by the transferee will not result in an adverse change in the rating of the Securities by the Rating Agency. Upon such transfer, Borrower shall release Lender and Lender shall release Borrower, Borrower's Affiliates, and the Liable Party from any claims and obligations with respect to the Loan and Affiliate Loans and all liabilities in respect of any Loan Document and Affiliate Loan Documents relating to such Loan and Affiliate Loans, the non-recourse carveout guaranty and any environmental indemnity; provided that Borrower and Borrower's Affiliates and Liable Party will not be released from any claims which result from acts or omissions which occurred in whole or in part prior to the date of transfer. (f) Notwithstanding anything in the foregoing to the contrary except for Transfers permitted pursuant to Section 10.01(b), any Transfers pursuant to this Section 10.01 shall be effected such that (x) the interests in all (but not less than all) of the Borrower and Borrower's Affiliates are directly or indirectly owned by the same ownership entities in the same proportionate interests and (y) such Borrower and Borrower's Affiliates (i.e., the Borrower and Borrower's Affiliates identified in (x) above) own all (but not less than all) of the Property and Affiliate Loan Properties. (g) Borrower and Borrower's Affiliates shall provide Lender with at least 30 days prior notice of any Transfer pursuant to this Section 10.01 along with information identifying the proposed new ownership structure which is sufficient to enable Lender to determine whether or not Lender's consent to the Transfer is needed. (h) Qualified Transferee shall mean any one of the following: (a) a pension fund, pension trust or pension account that as of the date of the Transfer has a net worth of at least five hundred million dollars ($500,000,000), has total real estate assets of at least one billion dollars ($1,000,000,000) (exclusive of the Property and Affiliate Loan 32 WCSR 3847963 Properties) and has gross assets of at least two billion dollars ($2,000,000,000); or (b) an insurance company which is subject to supervision by the insurance commissioner, or a similar official or agency, of a state or territory of the United States (including the District of Columbia) (i) with a net worth, as of a date no more than six (6) months prior to the date of the Transfer of at least five hundred million dollars ($500,000,000), (ii) who, immediately prior to such Transfer, has investments in real estate assets of at least one billion dollars ($1,000,000,000) and (iii) who, immediately prior to such Transfer, has gross assets of at least two billion dollars ($2,000,000,000); or (c) a corporation organized under the banking laws of the United States or any state or territory of the United States (including the District of Columbia) with a combined capital and surplus of at least five hundred million dollars ($500,000,000), has investments in real estate assets of at least one billion dollars ($1,000,000,000) and has gross assets of at least two billion dollars ($2,000,000,000); or (d) Subject to Lender's reasonable approval, any person (i) with a long-term unsecured debt rating from one of the Rating Agencies of at least investment grade and is regularly engaged (itself or through a subsidiary) in making commercial real estate loans or owning commercial real estate or (ii) who (A) owns or operates, together with Affiliates, properties comparable to the Property and Affiliate Loan Properties totaling at least two million five hundred thousand (2,500,000) square feet of gross leasable area of space comparable to the Properties and Affiliate Loan Properties, (B) has a net worth, as of a date no more than six (6) months prior to the date of the Transfer, of at least five hundred million dollars ($500,000,000), (C) immediately prior to the Transfer, owns (itself or through a subsidiary) real estate assets of at least one billion dollars ($1,000,000,000) and (D) immediately prior to such Transfer, has gross assets of at least two billion dollars ($2,000,000,000). (i) As used in this Security Instrument, the following capitalized terms have the meanings set forth below: (i) "Affiliate Loans" shall mean the loans evidenced by the Affiliate Notes. (ii) "Affiliate Loan Documents" shall mean all documents executed by the Borrower's Affiliates and the Liable Party in connection with the Affiliate Loans, including, without limitation, the Affiliate Guaranty Agreements. (iii) "Affiliate Loan Properties" shall mean all of the property encumbered by the Affiliate Loan Documents in connection with the Affiliate Loans. 33 WCSR 3847963 Borrower and Borrower's Affiliates and the Property and the Affiliate Loan Properties are not a part of, or a party to, or subject to, respectively, the mezzanine financing described above; and (y) the Corporate Borrowings shall include the interest in all (but not less than all) of the Borrowers and Borrower's Affiliates. Lender shall reasonably cooperate with Borrower and Borrower's Affiliates, at Borrower's and Borrower's Affiliates expense, in connection with such Subordinate Financing and Corporate Borrowings, and Lender and Borrower shall each have the right to require an intercreditor agreement with the mezzanine lender in form and substance satisfactory to Lender consistent with other intercreditor agreements that Lender customarily requires in comparable transactions. Section 10.03. RESTRICTIONS ON ADDITIONAL OBLIGATIONS. During the term of the Loan, Borrower shall not, without the prior written consent of Lender, become liable with respect to any indebtedness or other obligation except for (i) the Loan, (ii) Leases entered into in the ordinary course of owning and operating the Property for the Use, (iii) other liabilities incurred in the ordinary course of owning and operating the Property for the Use but excluding any loans or borrowings, (iv) liabilities or indebtedness disclosed in writing to and approved by Lender on or before the Execution Date, or (v) the Affiliate Loans. Section 10.04. STATEMENTS REGARDING OWNERSHIP. Borrower agrees to submit or cause to be submitted to Lender within one hundred twenty (120) days after December 31st of each calendar year during the term of this Security Instrument and ten (10) days after any written request by Lender, a sworn, notarized certificate, signed by an authorized (i) individual who is Borrower or one of the individuals comprising Borrower, (ii) member of Borrower, (iii) partner of Borrower or (iv) officer of Borrower, as the case may be, stating whether (x) any part of the Property, or any interest in the Property, has been conveyed, transferred, assigned, encumbered, or sold, and if so, to whom; (y) any conveyance, transfer, pledge or encumbrance of any interest in Borrower has been made by Borrower and if so, to whom; or (z) there has been any change in the individual(s) comprising Borrower or in the partners, members stockholders' or beneficiaries of Borrower from those on the Execution Date, and if so, a description of such change or changes. Section 10.05. LIMITED RIGHT OF SUBSTITUTION. Borrower and Borrower's Affiliates shall have the right from time to time to substitute another property for the Property or Affiliate Loan Properties, as the case may be, provided each of the following terms and conditions are satisfied: (a) Borrower and/or Borrower's Affiliates shall give Lender at least sixty (60) days written notice of any such proposed substitution. (b) Any proposed substitution of the Property or Affiliate Loan Properties will be subject to Lender's approval, in Lender's sole discretion, and the proposed substitute property shall have attributes similar or superior to the Property or Affiliate Loan Properties, as the case may be. Attributes of the proposed substitute property to be considered by Lender when deciding whether to approve of the proposed substitute property include, without limitation the (i) the quantity, quality, stability and duration of projected income stream from the proposed substitute property, (ii) tenant quality, including tenants' use of the substitute property, diversification and the creditworthiness of the tenants at the proposed substitute property, (iii) the 35 WCSR 3847963 environmental condition of the proposed substitute property, (iv) the product type, age, building construction, design and location of the proposed substitute property, and (v) insurance and other risks associated with the proposed substitute property. (c) The LTV (as hereinafter defined), as determined by Lender in its sole discretion, after the substitution, shall be no more than the LTV on the date of this Security Instrument and the DSCR (as hereinafter defined), as determined by Lender acting in a commercially reasonable manner, after the substitution shall be no less than the DSCR on the date of this Security Instrument. The Borrower and Borrower's Affiliates shall, upon Lender's request, obtain and pay for any appraisals in connection with such substitution as requested by Lender. (d) In no event will more than three (3) properties (in the aggregate of all substitutions of the Property and Affiliate Loan Properties) be subject to a substitution. (e) In no event will further substitutions be permitted if the aggregate allocated portion of the Total Loan amount of all of the Property and Affiliate Loan Properties substituted exceeds 50% of the original principal balance of the Total Loan. (f) Borrower will pay a non-refundable processing fee of $50,000 for each Property or Affiliate Loan Property proposed to be substituted. (g) In addition, in the event any portion of the Total Loan is securitized, the substitution of such Property or Affiliate Loan Property shall not (1) be a "significant modification" of any portion of the Total Loan within the meaning of Treasury Regulations Section 1.860G -2b or (2) cause any portion of the Total Loan to cease to be a "qualified mortgage" within the meaning of Section 860G(a)(3) of the Internal Revenue Code. (h) Borrower shall have satisfied, with respect to the proposed substitute property, all of the Lender's customary due diligence and closing requirements in effect at the time of substitution for similar loans secured by similar properties and which would be similar and nature and scope to the Closing Conditions attached as Exhibit A to the Application, at least fifteen (15) days prior to the date of the proposed substitution. The modification of the Loan Documents and the Affiliate Loan Documents evidencing and effectuating the substitution of the Property or Affiliate Loan Properties must be satisfactory to Lender in all respects. (i) Lender shall have received, with respect to the proposed substitute property, a mortgagee title insurance policy and applicable endorsements meeting all of the Lender's customary closing requirements for similar loans secured by similar properties, and Lender shall receive title endorsements reasonably satisfactory to Lender for the existing title insurance policies for the Loan and Affiliate Loans confirming that the existing policies remain in full force and effect, and the insurance on such policies remains in effect unimpaired as of the original date. (j) Borrower must pay all of Lender's reasonable out-of-pocket expenses, including reasonable attorneys' fees, incurred in connection with evaluating and documenting any proposed substitution of the Property or Affiliate Loan Properties, 36 WCSR 3847963 (k) There must be no uncured default under the Loan Documents, the Indemnity Agreement or the Guaranty, or under any of the Affiliate Loan Documents, at the time of the proposed substitution. (1) Leasehold property may not be substituted for a Property or Affiliate Loan Property owned in fee. (m) Each substituted property shall be both a separate subdivided and tax parcel and neither the operation of, or any rights enjoyed by, the remaining Property or Affiliate Loan Properties shall be affected by the release of a replaced property. (n) In addition to any of the requirements and conditions relating to a substitution or substitutions of any Property or Affiliate Loan Properties pursuant to this Section 10.05, the Borrower and Borrower's Affiliates agree that they shall be solely responsible for all costs, including, but not limited to, attorneys' fees or fees related to appraisers, engineers, architects and counsel, in connection with any such substitution or substitutions. Section 10.06. LIMITED RIGHT OF RELEASE. Borrower and Borrower's Affiliates shall have the right, following the expiration of the Prepayment Lockout Period (as hereinafter defined), to obtain a release of the Property or Affiliate Loan Properties from this Security Instrument and/or the Affiliate Loan Documents, as the case may be, provided each of the following terms and conditions are satisfied: (a) Borrower or Borrower's Affiliates shall give Lender at least sixty (60) days written notice of any such proposed release. (b) The LTV (as hereinafter defined), as determined by Lender in its sole discretion, after the release, shall be no more than the LTV on the date of this Security Instrument and the DSCR (as hereinafter defined), as determined by Lender acting in a commercially reasonable manner, after the release shall be no less than the DSCR on the date of this Security Instrument. (c) Borrower or Borrower's Affiliates pays in full the applicable Note or Affiliate Note, as the case may be, which is allocated to each released Property or Affiliate Loan Property, as the case may be, plus the applicable Additional Partial Release Principal Payment provided for below plus the Prepayment Fee as provided in the Note and Affiliate Notes. As used herein, the term "Additional Partial Release Principal Payment" shall mean an amount calculated as follows: If the Property or Affiliate Loan Property being released constitutes one of the 115% Properties (as defined below), then the Additional Partial Release Principal Payment shall be 15% of the applicable Released Loan Amount (as defined below); and if the Property or Affiliate Loan Property being released constitutes one of the 105% Properties (as defined below), then the Additional Partial Release Principal Payment shall be 5% of the applicable Released Loan Amount; and provided further, that a condemnation or deed in lieu of condemnation of an entire Property or Affiliate Loan Property, as the case may be, shall also require the payment of the Additional Partial Release Principal Payment with respect to the applicable Property or Affiliate Loan Property subject to such condemnation or deed in lieu of condemnation. The application of the Additional Partial Release Principal Payment to the applicable Note or Affiliate Note, as the case maybe be, shall also require 37 WCSR 3847963 concurrent payment of the associated Prepayment Fee in such Note or Affiliate Note, as the case may be (subject, however, to the provisions of such Note or Affiliate Note, including, without limitation, the last sentence of paragraph 9 thereof regarding condemnation). (d) Lender shall receive title endorsements reasonably satisfactory to Lender for the existing title insurance policies for the Loan and Affiliate Loans confirming that the existing policies remain in full force and effect, and the insurance on such policies remains in effect unimpaired as of the original date. (e) Borrower must pay all of Lender's reasonable out-of-pocket expenses, including reasonable attorneys' fees, incurred in connection with any proposed release of the Property or Affiliate Loan Properties. (f) There must be no uncured Event of Default under the Loan Documents, the Indemnity Agreement or the Guaranty, or under any of the Affiliate Loan Documents, at the time of the proposed release. (g) The remaining outstanding principal balance of the Total Loan after any such release shall be greater than or equal to 50% of the original outstanding principal amount of the Total Loan on the date of closing of the Total Loan. (h) If any such release occurs under this section 10.06, then the monthly interest payments payable under the remaining Note and Affiliate Notes, as the case may be, shall be adjusted to reflect the application of the Additional Partial Release Principal Payments, as applicable, to the outstanding principal balance of such Note or Affiliate Notes. (i) No release of the Property or Affiliate Loan Properties shall release Borrower or Borrower's Affiliates from their obligations under the applicable Loan Documents for the released Property or Affiliate Loan Property or applicable Indemnity Agreement for the released Property or Affiliate Loan Property with respect to events arising or occurring in whole or in part prior to the date of the release, but otherwise Lender shall release Borrowers and Liable Parties from such obligations. Section 10.07. ADDITIONAL DEFINITIONS. The following terms shall have the following meanings: "Prepayment Lockout Period" shall have the meaning ascribed in the Note. "DSCR" shall mean "NOI" divided by "Debt Service" on all of the Property and Affiliate Loan Properties. "NOI" shall mean the actual net operating income of the Property and Affiliate Loan Properties calculated in accordance with GAAP, after adjustment for removal of straight line rents, for the prior 6 months, annualized, inclusive of an imputed management fee of 3% of gross revenues and a capital reserve of $.I0 per rentable square foot, as reasonably approved by Lender. "Debt Service" shall mean the actual annual debt service due under the Total Loan. "Individual DSCR" shall mean the DSCR calculated for an individual Property or individual Affiliate Loan Property, as the case may be, but calculated using only the NOI for 38 wCSR 3847963 such individual Property and the Debt Service for the Loan or Affiliate Loan allocated to such individual Property. "Individual LTV" shall mean with respect to an individual Property or individual Affiliate Loan Property, as the case may be, the loan to value ratio of the Loan or Affiliate Loan allocated to such property to the value of such property. "LTV" shall mean the loan to value ratio of the Total Loan to the value of all of the Property and Affiliate Loan Properties. "Released Loan Amount" shall mean the outstanding principal amount of the Note or Affiliate Note, as the case may be, which is paid in full in connection with a release of the Property or an Affiliate property under Section 10.06 hereof. "105% Properties" shall mean the following properties which are part of the Property and the Affiliate Loan Properties: Aspen Grove, Littleton, Colorado; Meridian Crossroads, Meridian, Idaho; or University Centre, Wilmington, North Carolina. "115% Properties" shall mean the following properties which are part of the Property and the Affiliate Loan Properties: Plaza Escorial, Carolina, Puerto Rico; Plaza Rio Hondo, Bayamon, Puerto Rico; or Paseo Colorado, Pasadena, California. ARTICLE XI DEFAULTS AND REMEDIES Section 11.01. EVENTS OF DEFAULT. Any of the following shall be deemed to be a material breach of Borrower's covenants in this Security Instrument and shall constitute a default ("Event of Default"): (a) The failure of Borrower to pay any installment of principal, interest or principal and interest or any required escrow deposit within seven (7) days of the due date of such payment; (b) The failure of Borrower to pay any other sum required to be paid under any Loan Document (other than set forth in subparagraph (a) above), whether to Lender or otherwise, within thirty (30) days after receipt of written notice of such failure; (c) To the extent applicable, the existence of an Event of Default under that certain Indemnity Agreement dated of even date herewith by Borrower and Liable Party for the benefit of Lender. (d) The failure of Borrower to perform or observe any term, provision, covenant, condition or agreement under any Loan Document not otherwise provided for in this Section 11.01 for a period of more than thirty (30) days after receipt of written notice of such failure (unless such default cannot with due diligence be cured within thirty (30) days, in which case, no Event of Default shall be deemed to exist so long as Borrower shall have commenced to cure the default within thirty (30) days and shall thereafter diligently prosecute the same to completion within a reasonable period of time, not to exceed an additional 120 days in any event); 39 WCSR 3847963 (e) The filing by Borrower or the Liable Party (an "Insolvent Entity") of a voluntary petition or application for relief in bankruptcy, the filing against an Insolvent Entity of an involuntary petition or application for relief in bankruptcy which is not dismissed within ninety (90) days, or an Insolvent Entity's adjudication as a bankrupt or insolvent, or the filing by an Insolvent Entity of any petition, application for relief or answer seeking or acquiescing in any reorganization, arrangement, composition, readjustment, liquidation, dissolution or similar relief for itself under any present or future federal, state or other statute, law, code or regulation relating to bankruptcy, insolvency or other relief for debtors, or an Insolvent Entity's seeking or consenting to or acquiescing in the appointment of any trustee, custodian, conservator, receiver or liquidator of an Insolvent Entity or of all or any substantial part of the Property or of any or all of the Rents and Profits, or the making by an Insolvent Entity of any general assignment for the benefit of creditors, or the admission in writing by an Insolvent Entity of its inability to pay its debts generally as they become due; (f) If any warranty, representation, certification, financial statement or other information made or furnished at any time pursuant to the terms of the Loan Documents by Borrower, or by any person or entity otherwise liable under any Loan Document shall be materially false or misleading; provided, however, as long as such matter was not intentional and is capable of being cured, then an Event of Default shall not be deemed to exist as long as Borrower cures such false or misleading matter within thirty (30) days after receipt of written notice by Lender of such false or misleading matter (unless such default cannot with due diligence be cured within thirty (30) days, in which case, no Event of Default shall be deemed to exist so long as Borrower shall have commenced to cure the false or misleading matter within thirty (30) days and shall thereafter diligently prosecute the same to completion within a reasonable period of time, not to exceed an additional one hundred twenty (120) days in any event); (g) If Borrower shall suffer or permit the Property, or any part of the Property, to be used in a manner that would with the passage of time (1) impair Borrower's title to the Property, (2) create rights of adverse use or possession, or (3) constitute an implied dedication of any part of the Property; (h) To the extent applicable, if there shall be a default under the Guaranty and the Guaranty (Note), executed in connection with the Loan in favor of Lender; or (i) if there shall be a default (uncured beyond any applicable notice and grace periods) under any of the Affiliate Loan Documents. Section 11.02. REMEDIES UPON DEFAULT. Upon the happening of an Event of Default, the Secured Indebtedness shall, at the option of Lender, become immediately due and payable, without further notice or demand, and Lender may undertake any one or more of the following remedies: (a) Foreclosure. Institute a foreclosure action in accordance with the law of the State, or take any other action as may be allowed, at law or in equity, for the enforcement of the Loan Documents and realization on the Property or any other security afforded by the Loan Documents. In the case of a judicial proceeding, Lender may proceed to final judgment and execution for the amount of the Secured Indebtedness owed as of the date of the judgment, 40 WCSR 3847963 together with all costs of suit, reasonable attorneys' fees and interest on the judgment at the lesser of (i) the Default Rate (as defined in the Note) or (ii) the maximum rate permitted by law from the date of the judgment until paid. if Lender is the purchaser at the foreclosure sale of the Property, the foreclosure sale price shall be applied against the total amount due Lender; and/or (b) Power of Sale. See Special State Provisions, Section 15.01(b) below; and/or (c) Entry. To the extent permitted by applicable law, enter into possession of the Property, lease the Improvements, collect all Rents and Profits and, after deducting all costs of collection and administration expenses, apply the remaining Rents and Profits in such order and amounts as Lender, in Lender's sole discretion, may elect to the payment of Impositions, operating costs, costs of maintenance, restoration and repairs, Premiums and other charges, including, but not limited to, costs of leasing the Property and fees and costs of counsel and receivers, and in reduction of the Secured Indebtedness; and/or (d) Receivership. Have a receiver appointed to enter into possession of the Property, lease the Property, collect the Rents and Profits and apply them as the appropriate court may direct. Lender shall be entitled to the appointment .of a receiver without the necessity of proving either the inadequacy of the security or the insolvency of Borrower or any of the Liable Party. Borrower and Liable Party shall be deemed to have consented to the appointment of the receiver. The collection or receipt of any of the Rents and Profits by Lender or any receiver shall not affect or cure any Event of Default; and/or (e) Uniform Commercial Code Remedies. Exercise all rights and remedies of a "Secured Party" as provided in the applicable Uniform Commercial Code; and/or (f) Specific Performance. Institute an action for specific performance of any covenant contained herein or in aid of the execution of any power herein granted; and/or (g) Other. Take such other action and exercise such rights and remedies, procedural and substantive, as may be allowed now or in the future by statutory or case law, or in equity. Lender shall be entitled in its sole discretion to exercise all or any of the rights and remedies herein or in the Loan Documents provided, or which may be provided by statute, law, equity, or otherwise in such order and manner as Lender shall elect without impairing Lender's lien in, or rights to, any of such Loan Documents and without affecting the liability of any person, firm, corporation or other entity for the sums secured by the Loan Documents. Section 11.03. APPLICATION OF PROCEEDS OF SALE. In the event of a sale of the Property pursuant to Section 11.02 of this Security Instrument, to the extent permitted by law, the Lender shall determine in its sole discretion the order in which the proceeds from the sale shall be applied to the payment of the Secured Indebtedness and other obligations all in accordance with the applicable law of the State of Idaho. To the extent permitted by applicable law, the application to the Secured Indebtedness shall include without limitation, the expenses of the sale and of all proceedings in connection with the sale, including a commission for the Trustee's services as provided in Section 11.02 and including reasonable attorneys' fees and expenses; the reimbursement of the Lender for all sums expended or incurred by the Lender 41 WCSR 3847963 under the terms of this Security Instrument or to establish, preserve or enforce this Security Instrument or to collect the Secured Indebtedness (including, without limitation, reasonable attorneys' fees as provided herein or in the Note and Affiliate Notes); Impositions (except that the Trustee may sell the Property subject to ad valorem taxes and assessments without paying them out of the proceeds), Premiums, liens, and other charges and expenses; the outstanding principal balance of the Secured Indebtedness; any accrued interest; any Prepayment Fee; any other unpaid portion of the Secured Indebtedness; and any other amounts owed under any of the Loan Documents and Affiliate Loan Documents. Section 11.04. WAIVER OF JURY TRIAL. To the fullest extent permitted by law, Borrower and Lender HEREBY WAIVE THEIR RESPECTIVE RIGHT TO TRIAL BY JURY in any action, proceeding and/or hearing on any matter whatsoever arising out of, or in any way connected with, the Note, this Security Instrument or any of the Loan Documents, or the enforcement of any remedy under any law, statute, or regulation. Neither party will seek to consolidate any such action in which a jury has been waived, with any other action in which a jury trial cannot or has not been waived. Each party has received the advice of counsel with respect to this waiver. Section 11.05. LENDER'S RIGHT TO PERFORM BORROWER'S OBLIGATIONS. Borrower agrees that, if Borrower fails to perform any act or to pay any money which Borrower is required to perform or pay under the Loan Documents within any applicable notice or grace period, Lender may make the payment or perform the act at the cost and expense of Borrower and in Borrower's name or in its own name. Any money paid by Lender under this Section 11.05 shall be reimbursed to Lender in accordance with Section 11.06. Section 11.06. LENDER REIMBURSEMENT. All payments reasonably made, or funds reasonably expended or reasonably advanced by Lender pursuant to the provisions of any Loan Document, shall (1) become a part of the Secured Indebtedness, (2) bear interest at the Interest Rate (as defined in the Note) from the date such payments are made or funds expended or advanced, (3) become due and payable by Borrower upon demand by Lender, and (4) bear interest at the Default Rate (as defined in the Note) from the date of such demand. Borrower shall reimburse Lender within ten (10) days after receipt of written demand for such amounts. Section 11.07. FEES AND EXPENSES. If Lender becomes a party (by intervention or otherwise) to any action or proceeding affecting, directly or indirectly, Borrower, the Property or the title thereto or Lender's interest under this Security Instrument, or employs an attorney to collect any of the Secured Indebtedness or to enforce performance of the obligations, covenants and agreements of the Loan Documents; Borrower shall reimburse Lender in accordance with Section 11.06 for all expenses, costs, charges and legal fees incurred by Lender (including, without limitation, the fees and expenses of experts and consultants), whether or not suit is commenced. Section 11.08. WAIVER OF CONSEQUENTIAL DAMAGES. Borrower covenants and agrees that in no event shall Lender be Iiable for consequential damages, and to the fullest extent permitted by law, Borrower expressly waives all existing and future claims that it may have against Lender for consequential damages. 42 WCSR 3847963 Section 11 .09. WAIVER OF REDEMPTION RIGHTS, EXEMPTIONS, ETC. Any sale of any or all the Property pursuant to the power of sale or judicial sale provided for herein or in realization of the security interest granted herein shall be made free from the equity of redemption, statutory right of redemption, homestead, downer, curtesy, exemption rights, and all other rights and interest of Borrower, all of which are hereby expressly waived. Section 11.10. INDEMNIFICATION OF TRUSTEE. Except for gross negligence and willful misconduct, Trustee shall not be liable for any act or omission or error of judgment. Trustee may rely on any document believed by it in good faith to be genuine. All money received by Trustee shall be held in trust, but need not be segregated (except to the extent required by law), until used or applied as provided in this Security Instrument. Trustee shall not be liable for interest on the money. Borrower shall protect, indemnify and hold harmless Trustee against all liability and expenses which Trustee may incur in the performance of its duties. Section 11.11. ACTIONS BY TRUSTEE. At any time, upon written request of Lender and presentation of this Security Instrument, and without affecting the personal liability of any entity or the Liable Party for payment of the Secured Indebtedness or the effect of this Security Instrument upon the remainder of the Property, Trustee may take such actions as Lender may request which are permitted by this Security Instrument or by applicable law. Section 11.12. SUBSTITUTION OF TRUSTEE. Lender has the power and shall be entitled, at any time and from time to time, in its sole discretion and without cause, to remove Trustee or any successor trustee and to substitute and appoint another trustee or trustees (either corporate or individual) in the place and stead of Trustee or any successor trustee, by written instrument duly executed and recorded in the Office of the Register of Deeds of the county or counties where the Property is situated, which instrument shall be conclusive proof of the proper substitution and appointment of such successor trustee or trustees, who shall have all the rights, title, estate, powers, duties and privileges of the predecessor trustee, without the necessity of any conveyance from such predecessor. ARTICLE XIl BORROWER AGREEMENTS AND FURTHER ASSURANCES Section 12.01. PARTICIPATION AND SALE OF LOAN. (a) Lender may, at any time, sell, transfer or assign the Loan and the Affiliate Loans, or any portion thereof and its servicing rights with respect to the Loan and the Affiliate Loans, grant participations in the Loan and the Affiliate Loans or issue mortgage pass-through certificates or other securities evidencing a beneficial interest in the Loan and the Affiliate Loans in a rated or unrated public offering or private placement (the "Securities"). Notwithstanding the foregoing, no such transfer shall result in a material change of the obligations of Borrower or Borrower's Affiliates under the Loan or Affiliate Loans. Lender may forward to each purchaser, transferee, assignee, servicer, participant, investor or prospective investor in such Securities (collectively, the "Investor"), or any "Rating Agency" rating or assigning value to such Securities, or prospective Investor all documents and information Lender has with respect to the Loan and the Affiliate Loans. Borrower shall provide an estoppel certificate or any other documents to the Investor or the Rating Agency as may be reasonably requested by Lender within fourteen (14) Business Days after Lender's 43 WCSR 3847963 either that no known offsets or defenses exist against the Secured Indebtedness, or if any offsets or defenses are alleged to exist, their nature and extent, (iii) whether any default then exists under the Loan Documents or any event has occurred and is continuing, which, with the lapse of time, the giving of notice, or both, would constitute such a default, and (iv) any other matters as Lender may reasonably request. If Borrower does not furnish an estoppel certificate within the fourteen (14) Business Day period, Borrower appoints Lender as its attorney-in-fact to execute and deliver the certificate on its behalf, which power of attorney shall be coupled with an interest and shall be irrevocable by death or otherwise. Section 12.04. FURTHER ASSURANCES. Borrower shall, without expense to Lender and/or Trustee, execute, acknowledge and deliver all further acts, deeds, conveyances, mortgages, deeds to secure debt, deeds of trust, assignments, security agreements, and financing statements as Lender and/or Trustee shall from time to time reasonably require, to assure, convey, assign, transfer and confirm unto Lender and/or Trustee the Property and rights conveyed or assigned by this Security Instrument or which Borrower may become bound to convey or assign to Lender and/or Trustee, or for carrying out the intention or facilitating the performance of the terms of this Security Instrument or any of the other Loan Documents, or for filing, refiling, registering, reregistering, recording or re-recording this Security Instrument. If Borrower fails to comply with the terms of this Section, Lender may, at Borrower's expense, perform Borrower's obligations for and in the name of Borrower, and Borrower hereby irrevocably appoints Lender as its attorney-in-fact to do so. The appointment of Lender as attorney-in-fact is coupled with an interest. Section 12.05. SUBROGATION. Lender shall be subrogated to the lien of any and all encumbrances against the Property paid out of the proceeds of the Loan and to all of the rights of the recipient of such payment. Section 12.06 SINGLE PURPOSE ENTITIES. (a) Borrower shall be a single purpose entity and the Loan Documents and its organizational documents shall provide that Borrower shall not, without the prior consent of Lender: (i) engage in business other than owning and operating the Property; (ii) acquire or own a material asset other than the Property and incidental personal property; (iii) maintain assets in a way difficult to segregate and identify or commingle its assets with the assets of any other person or entity; (iv) fail to hold itself out to the public as a legal entity separate from any other; (v) fail to conduct business solely in its name or fail to maintain separate records, or fail to hold funds in bank accounts separate from the funds of any other person or entity (other than, with respect to such bank accounts, the Borrower's Affiliates); (vi) file or consent to a petition pursuant to applicable bankruptcy, insolvency, liquidation or reorganization statutes, or make an assignment for benefit of creditors without the unanimous consent of its partners or members, as applicable; (vii) incur additional indebtedness except for trade payables in the ordinary course of business of owning and operating the Property, provided that such indebtedness is paid within ninety (90) days of when incurred (unless being contested in good faith); (viii) dissolve, liquidate, consolidate, merge or sell all or substantially all of its assets; or (ix) modify, amend or revise its organizational documents with regard to any of the foregoing provisions. In furtherance of the foregoing with respect to bank accounts, Borrower agrees that any permitted prepayment of any portion of the Total Loan pursuant to and in accordance with the terms, provisions, covenants and conditions of the Loan Documents and/or Affiliate Loan Documents which results in any one or more of the separate mortgages and/or deeds of trust comprising the Affiliate Loan Documents, as the case 45 WCSR 3847963 may be, being discharged and any one or more of the respective Affiliate Loan Properties being released, that the respective Borrowers owning the respective Affiliate Loan Properties so released shall no longer utilize the same bank account(s) as Borrower or any of the other remaining Borrower's Affiliates, it being the intention of the Borrower and Lender that at no time during the term of this Security Instrument shall any tenants or other parties from any properties other than the Property and the Affiliate Loan Properties securing repayment of the Loan and encumbered by the Loan Documents pay any rents or other monies to any such bank accounts, nor shall any such other rents or other monies be at any time deposited, or otherwise commingled with any funds held, in any such bank accounts. ARTICLE XIII SECURITY AGREEMENT Section 13.01. SECURITY AGREEMENT. THIS SECURITY INSTRUMENT CREATES A LIEN ON THE PROPERTY. IN ADDITION, TO THE EXTENT THE PROPERTY IS PERSONAL PROPERTY OR FIXTURES UNDER APPLICABLE LAW, THIS SECURITY INSTRUMENT CONSTITUTES A SECURITY AGREEMENT UNDER THE UNIFORM COMMERCIAL CODE OF THE STATE IN WHICH THE PROPERTY IS LOCATED (THE "U.C.C.") AND ANY OTHER APPLICABLE LAW AND IS FILED AS A FIXTURE FILING WITH RESPECT TO FIXTURES INCLUDED WITHIN THE PROPERTY AND IS EFFECTIVE AS A FINANCING STATEMENT WITH RESPECT TO ANY OTHER PORTION OF THE PROPERTY AS TO WHICH A SECURITY INTEREST MAY BE PERFECTED BY THE FILING OF A FINANCING STATEMENT. UPON THE OCCURRENCE OF AN EVENT OF DEFAULT, LENDER MAY, AT ITS OPTION, PURSUE ANY AND ALL RIGHTS AND REMEDIES AVAILABLE TO A SECURED PARTY WITH RESPECT TO ANY PORTION OF THE PROPERTY, AND/OR LENDER MAY, AT ITS OPTION, PROCEED AS TO ALL OR ANY PART OF THE PROPERTY IN ACCORDANCE WITH LENDER'S RIGHTS AND REMEDIES WITH RESPECT TO THE LIEN CREATED BY THIS SECURITY INSTRUMENT. THIS FINANCING STATEMENT SHALL REMAIN IN EFFECT AS A FIXTURE FILING AND A FINANCING STATEMENT UNTIL THIS SECURITY INSTRUMENT IS RELEASED OR SATISFIED OF RECORD. THE RESPECTIVE MAILING ADDRESSES OF BORROWER (AS DEBTOR) AND LENDER (AS SECURED PARTY) ARE AS SET FORTH IN THE DEFINED TERMS OF THIS SECURITY INSTRUMENT. A CARBON, PHOTOGRAPHIC OR OTHER REPRODUCTION OF THIS SECURITY INSTRUMENT OR ANY FINANCING STATEMENT RELATING TO THIS SECURITY INSTRUMENT SHALL BE SUFFICIENT AS A FINANCING STATEMENT FOR ANY OF THE PURPOSES REFERRED TO IN THIS SECTION. Section 13.02. REPRESENTATIONS AND WARRANTIES. Borrower warrants, represents and covenants as follows: (a) As of the Execution Date, Borrower owns the Personal Property free from any lien, security interest, encumbrance or adverse claim, except as otherwise expressly approved by Lender in writing. Borrower will notify Lender of, and will protect, defend and indemnify Lender against, all claims and demands of all persons at any time claiming any rights or interest in the Personal Property. 46 WCSR 3847963 (b) The Personal Property has not been (as of the Execution Date) used and shall not be used or bought for personal, family, or household purposes, but shall be bought and used solely for the purpose of carrying on Borrower's business. (c) Borrower will not remove the Personal Property without the prior written consent of Lender, except the items of Personal Property which are obsolete or which are consumed or worn out in ordinary usage and are promptly replaced by Borrower, to the extent reasonably necessary or desirable for the operation of the Land and Improvements and the business conducted thereon, with other Personal Property of value equal to or greater than the value of the replaced Personal Property. (d) Borrower authorizes Lender to file Uniform Commercial Code Financing Statements in any applicable recording or filing office covering any Property or collateral described in this Security Instrument or in any of the other Loan Documents. Borrower is the type of entity and organized in the jurisdiction set forth on the cover pages hereof and Borrower's organizational identification number under the laws of such jurisdiction is set forth on the cover pages hereof. Section 13.03. CHARACTERIZATION OF PROPERTY. The grant of a security interest to Lender in this Security Instrument shall not be construed to limit or impair the lien of this Security Instrument or the rights of Lender with respect to any property which is real property or which the parties have agreed to treat as real property. To the fullest extent permitted by law, everything used in connection with the production of Rents and Profits is, and at all times and for all purposes and in all proceedings, both legal and equitable, shall be regarded as real property, irrespective of whether -or not the same is physically attached to the Land and/or Improvements. Section 13.04. PROTECTION AGAINST PURCHASE MONEY SECURITY INTERESTS. It is understood and agreed that in order to protect Lender from the effect of U.C.C. Section 9-334, as amended from time to time and as enacted in the State, in the event that Borrower intends to purchase any goods which may become fixtures attached to the Property, or any part of the Property, and such goods will be subject to a purchase money security interest held by a seller or any other party: (a) Before executing any security agreement or other document evidencing or perfecting the security interest, Borrower shall obtain the prior written approval of Lender. All requests for such written approval shall be in writing and contain the following information: (i) a description of the fixtures; (ii) the address at which the fixtures will be located; and (iii) the name and address of the proposed holder and proposed amount of the security interest. Notwithstanding the foregoing, the Lender's approval shall not be required for a purchase money security interest in goods or fixtures related to the Property that are in compliance with the following parameters: (i) no Event of Default shall exist at the time of incurring such purchase money security interest; and (ii) the amount of such purchase money security interest, when combined with the outstanding amount of any previous purchase money security interests shall not exceed (x) $100,000.00 if the amount of the Loan is greater than or equal to $40,000,000.00 or (y) $50,000.00 if the amount of the Loan is greater than or equal to $20,000,000.00, but less than $40,000,000.00 or (z) $25,000.00 if the amount of the Loan is less than $20,000,000.00. 47 WCSR 3847963 (b) Borrower shall pay all sums and perform all obligations secured by the security agreement. A default by Borrower under the security agreement shall constitute a default under this Security Instrument. If Borrower fails to make any payment on an obligation secured by a purchase money security interest in the Personal Property or any fixtures, Lender, at its option, may pay the secured amount and Lender shall be subrogated to the rights of the holder of the purchase money security interest. (c) Lender shall have the right to acquire by assignment from the holder of the security interest for the Personal Property or fixtures, all contract rights, accounts receivable, negotiable or non-negotiable instruments, or other evidence of indebtedness' and to enforce the security interest as assignee. (d) The provisions of subparagraphs (b) and (c) of this Section 13.04 shall not apply if the goods which may become fixtures are of at least equivalent value and quality as the Personal Property being replaced and if the rights of the party holding the security interest are expressly subordinated to the lien and security interest of this Security Instrument in a manner satisfactory to Lender. ARTICLE XIV MISCELLANEOUS COVENANTS Section 14.01. NO WAIVER. No single or partial exercise by Lender and/or Trustee, or delay or omission in the exercise by Lender and/or Trustee, of any right or remedy under the Loan Documents shall preclude, waive or limit the exercise of any other right or remedy. Lender shall at all times have. the right to proceed against any portion of, or interest in, the Property without waiving any other rights or remedies with respect to any other portion of the Property. No right or remedy under any of the Loan Documents is intended to be exclusive of any other right or remedy but shall be cumulative and may be exercised concurrently with or independently from any other right and remedy under any of the Loan Documents or under applicable law. Section 14.02.NOTICES. All notices, demands and requests given or required to be given by, pursuant to, or relating to, this Security Instrument shall be in writing. All notices shall be deemed to have been properly given if mailed by United States registered or certified mail, with return receipt requested, postage prepaid, or by United States Express Mail or other comparable overnight courier service to the parties at the addresses set forth in the Defined Terms (or at such other addresses as shall be given in writing by any party to the others) and shall be deemed complete upon receipt or refusal to accept delivery as indicated in the return receipt or in the receipt of such United States Express Mail or courier service. Section 14.03. HEIRS AND ASSIGNS• TERMINOLOGY, REASONABLE_ LEGAL FEES. (a) This Security Instrument applies to Lender, Trustee, Liable Party and Borrower, and their heirs, legatees, devisees, administrators, executors, successors and assigns. The term "Borrower" shall include both the original Borrower and any subsequent owner or owners of any of the Property. The term "Liable Party" shall include both the original Liable Party and any subsequent or substituted Liable Party. The term "Lender" shall mean Lender and any successor and/or assign of Lender. The term "Trustee" shall include both the original 48 wCSR 3847963 Trustee and any subsequent successor or additional trustee(s) acting under this Security Instrument. (b) In this Security Instrument, whenever the context so requires, the masculine gender includes the feminine and/or neuter, and the singular number includes the plural. (c) Whenever in this Security Instrument Borrower is required to pay "reasonable" attorney's fees, Borrower shall be required to pay the actual attorney's fees billed at standard hourly rates, and the term "reasonable" shall not be interpreted to mean a percentage of principal and interest and shall be computed without regard to any statutory presumption. Section 14.04. SEVERABILITY. If any provision of this Security Instrument should be held unenforceable or void, then that provision shall be separated from the remaining provisions and shall not affect the validity of this Security Instrument except that if the unenforceable or void provision relates to the payment of any monetary sum, then, Lender may, at its option, declare the Secured Indebtedness immediately due and payable. Section 14.05. APPLICABLE LAW. This Security Instrument shall be construed and enforced in accordance with the laws of the State of Idaho. Section 14.06. CAPTIONS. The captions are inserted only as a matter of convenience and for reference, and in no way define, limit, or describe the scope or intent of any provisions of this Security Instrument. Section 14.07. TIME OF THE ESSENCE. Time is of the essence with respect to all of Borrower's obligations under this Security Instrument and the other Loan Documents. Section 14.08. NO MERGER. In the event that Lender should become the owner of the Property, there shall be no merger of the estate created by this Security Instrument with the fee estate in the Property. Section 14.09. NO MODIFICATIONS. This Security Instrument may not be changed, amended or modified, except in a writing expressly intended for such purpose and executed by Borrower and Lender. Section 14.10. WAIVER. BY EXECUTION OF THIS SECURITY INSTRUMENT, BORROWER EXPRESSLY: (A) WAIVES ANY AND ALL RIGHTS WHICH BORROWER MAY HAVE UNDER THE CONSTITUTION OF THE UNITED STATES (INCLUDING THE FIFTH AND FOURTEENTH AMENDMENTS THEREOF), THE VARIOUS PROVISIONS OF THE CONSTITUTIONS OF THE SEVERAL STATES, OR BY REASON OF ANY OTHER APPLICABLE LAW, CONCERNING THE APPLICATION, RIGHTS OR BENEFITS OF ANY STATUTE OF LIMITATION OR ANY MORATORIUM, REINSTATEMENT', MARSHALLING, FORBEARANCE, APPRAISEMENT, VALUATION, STAY, EXTENSION, HOMESTEAD, EXEMPTION OR REDEMPTION LAWS; (B) ACKNOWLEDGES THAT BORROWER HAS READ THIS SECURITY INSTRUMENT AND ANY AND ALL QUESTIONS REGARDING THE LEGAL EFFECT OF THIS SECURITY INSTRUMENT AND ITS PROVISIONS HAVE BEEN EXPLAINED FULLY TO BORROWER AND BORROWER HAS CONSULTED WITH COUNSEL OF BORROWER'S CHOICE PRIOR TO EXECUTING THIS SECURITY INSTRUMENT; AND (C) 49 WCSR 3847963 ACKNOWLEDGES THAT ALL WAIVERS OF THE AFORESAID RIGHTS OF BORROWER HAVE BEEN MADE KNOWINGLY, INTENTIONALLY AND WILLINGLY BY BORROWER AS PART OF A BARGAINED -FOR LOAN TRANSACTION AND THAT THIS SECURITY INSTRUMENT IS VALID AND ENFORCEABLE BY BORROWER AGAINST BORROWER IN ACCORDANCE WITH ALL THE TERMS AND CONDITIONS HEREOF. Section 14.11. CROSS DEFAULT. Subject to the terms of this Security Instrument and the Note (including, but not limited to, the last sentence of Section 1.03 of this Security Instrument and Sections 10.05 and 10.06 of this Security Instrument, Borrower acknowledges and agrees that the Loan and the Affiliate Loans are cross -defaulted. Section 14.12. FUTURE ADVANCES. This Security Instrument is given to secure both present and future obligations of the Borrower to the Lender. The period in which future obligations may be incurred and secured by this Security Instrument is the period between the date hereof and that date which is fifteen (15) years from the date hereof. The amount of present obligations secured by this Security Instrument is $350,000,000.00, and the maximum principal amount, including present and future obligations, which may be secured by this Security Instrument at any one time is $700,000,000.00. Any additional amounts advanced by Lender pursuant to the provisions of this Security Instrument shall be deemed necessary expenditures for the protection of the security. Each future advance need not be evidenced by a written instrument or notation signed by Lender stipulating that such advance is secured by this Security Instrument. All future obligations shall be considered to be made pursuant to the requirements of applicable laws of the State. ARTICLE XV SPECIAL STATE PROVISIONS Section 15.01. SPECIAL STATE PROVISIONS. The following special State provisions are hereby added to this Security Instrument. (a) The following provision is inserted as Section 6.05(b): "(b) Those substances defined as "hazardous substances," "hazardous materials," or "toxic substances" in the Idaho Environmental Protection and Health Act (Idaho Code §§ 39-101 to 39-130), Idaho Code Title 39, Chapter 30 Radiation and Nuclear Material (Idaho Code §§ 39-3020 to 39-3029), Idaho Code Title 39, Chapter 36 Water Quality (Idaho Code §§ 39-3601 to 39-3639), the Hazardous Waste Management Act of 1983 (Idaho Code §§ 39-4401 to 39-4432), the Idaho Hazardous Substance Response Act (Idaho Code §§ 39-7101 to 39-7115), the Idaho Petroleum Clean Water Trust Fund Act (Idaho Code §§ 41-4901 to 41- 4946), the Idaho Land Remediation Act (Idaho Code §§ 39-7201 to 39-7211), the Idaho Solid Waste Facilities Act (Idaho Code §§ 39-7401 to 39-7420), Idaho Code Title 39, Chapter 70 Sale and Disposal of Batteries (Idaho Code §§ 39-7001 to 39-7004), and in the regulations promulgated pursuant to said laws, all as amended,". (b) The following provision is inserted as Section I I.02(b): "(b) Power of Sale. Institute a non judicial foreclosure proceeding in compliance with applicable law in effect on the date foreclosure is commenced for the Trustee to sell the Property either as a whole or in separate parcels as Lender may determine at public 50 WCSK 3847963 sale or sales to the highest bidder for cash, in order to pay the Secured Indebtedness, If the Property is sold as separate parcels, Lender may direct the order in which the parcels are sold. Trustee shall deliver to the purchaser a Trustee's deed or deeds without covenant or warranty, express or implied. Trustee may postpone the sale of all or any portion of the Property by i public announcement at the time and place of sale, and from time to time may further postpone the sale by public announcement in accordance with applicable law; and/or" (c) The Real Property either is located within an incorporated city or village, or does not exceed forty (40) acres. (d) If more than one party constitutes Borrower or Grantor, subject to Section 9.01 hereof, the obligations of each party shall be joint and several. (e) NOTICE: The obligations secured hereby may provide for the interest rate, payment terms, or balance due to be indexed, adjusted, renewed or renegotiated. [REMAINDER OF PAGE INTENTIONALLY LEFT BLANK.] 51 WCSR 3847963 State: Idaho Property: Meridian Crossroads IN WITNESS WHEREOF, Borrower has executed this Security Instrument; or has caused this Security Instrument to be executed by its duly authorized representative(s), as an instrument under seal. BORROWER: GS II MERIDIAN CROSSROADS LLC. a Delaware limited liability company (SEAL) By: u2 ClawL� (SEAL) Print Name:_ F;AAX14E 14AAIP'T" "Title: Ti2E��'�� `� VP FjiJR�^E TFCM ASSOCIATES. LLC. a Utah limited liability company (SEAL) �J�Y>Ql (SEAL) Print N inN e RRA /,Q��L�,IIVJDT- Bv: Title:IypFiN�i i NNTSK 3817963 State: Idaho Property: Meridian Crossroads STATE OF �� ) ss. Count._, of ) On this day- of2008. before met e undersigned. a no arry public in and for the State of fig(() , personally appeared known or identified mem _(or proved to e on the oath of _ ) to be the �f GS 11 Meridian Crossroads LLC, and the person who subscribed said entity names to the foregoing instr unent, and acknowledged to me that such person executed the same on behalfof such entities and in said limited liabilitN• company, name. IN WITNESS WHEREOF. I have hereunto set my hand and affixed nry official seal the day and year in this certificate first above written. O TONISHA SMITH Notary Public, State of Ohio Lic Cuyahoga County My Commission Expires My C January 22, 2011 PUBLIC] FOR • . , STATE OF (04 in ) Coulliv of �,�jrl) ss. On this t�day of 2008. before me the undersigned, a no ar); public in and for the State of .(� personally appeared 4��+1(A _, know" or Identified nic (or proved to me on the oath of ) to be the IL of TFCM Associates. LLC; and the person who subscribed said entity names to the foregoing instrument. and acknowledged to me that such person executed the same on behalf of such entities and in said limited liability compairy name. IN WITNESS WHEREOF. i have hereunto set in.- hand and affixed my official seal the da-, and vcar in this certificate first above writ 1� S j/••F9 TONISHA+ SMITH NO RY P BLI FO Notary Public, State Of Ohio Rcsidin L 7 00 i Cuyahoga County My Commission Expires 11D;cl� —2c( My Commission Expires January 22, 2011 \N'CSR 3847963 EXHIBIT A Parcel I: A parcel of land located in the West half of the Northwest Quarter of Section 9, Township 3 North, Range 1 East, Boise Meridian, Ada County, Idaho, more particularly described as follows: Commencing at the corner common to Sections 4, 5, 8 and the said Section 9, from which the Quarter corner common to said Sections 8 and 9 bears South 01°08'42" West, 2649.45 feet; thence South 01108142" West, 1595.21 feet (formerly described as South 01108'10" West, 1594.13 feet) to a point; thence South 88°51150" East, 70.00 feet to the Northwest corner of Lot 1 in Block 2 of Crossroads Subdivision No. 1, according to the official plat thereof, filed in Book 65 of Plats at Pages 6644 and 6645, records of Ada County, Idaho, said point being the REAL POINT OF BEGINNING; thence along the Easterly right-of-way of N. Eagle Road (State Highway 55) North 01°08142" East, 569.42 feet to a point; thence South 88151'50" East, 660.17 feet to the intersection with the Westerly exterior boundary line of Crossroads Subdivision No. 4, as recorded in Book 73 of Plats, at Pages 7519 and 7520, records of said Ada County; thence South 01°08113" West along the Westerly boundary of said Crossroads Subdivision No. 4 and the Westerly boundary of said Crossroads Subdivision No. 1, a distance of 826.62 feet to a point on the Northerly right-of-way of E. Presidential Drive; thence 205.24 feet along said right-of-way and the arc of a non -tangent curve to the left, having a radius of 258.82 feet, a central angle of 45°26102" and a long chord bearing North 66°08'49" West, 199.90 feet to a point; thence continuing along said right-of-way North 88151'50" West, 395.36 feet to the Southeast corner of said Lot 1, Block 2 of Crossroads Subdivision No. 1; thence along the exterior boundary of said Lot I North 01108'10" East, 10.00 feet to a point; thence 31.42 feet along the are of a curve to the left, having a radius of 20.00 feet, a central angle of 90°00'00" and a long chord bearing North 43°51'50" West, 28.28 feet to a point; thence North 88°51'50" West, 10 feet to a poont; thence 31.42 feet along the are of a curve to the right, having a radius of 20.00 feet, a central angle of 90°00'00" and a long chord bearing North 43°51'50" West, 28.28 feet to a point; thence North 01108'10" East, 110.00 feet to a point; thence 31.42 feet along the arc of a curve to the left, having a radius of 20.00 feet, a central angle of 90°00100" and a long chord bearing North 43°51'50" West, 28.28 feet to a point; thence North 88°51'50" West, 10.49 feet (formerly described as 10.00 feet) to the REAL POINT OF BEGINNING. TOGETHER WITH the rights, benefits and easements as set forth in the Amended and Restated Declaration of Conditions, Covenants, Restrictions and Grant of Easements, recorded August 23, 1999, as Instrument No. 99084344, in the Official Records of Ada County, Idaho. TOGETHER WITH the rights, benefits and easements as set forth in the Easements with Covenants and Restrictions Affecting Land ("ECR"), recorded May 18, 2000, as Instrument No. 100038094, as modified by Instrument No. 105095158, recorded July 14, 2005, in the Official Records of Ada County, Idaho. Parcel II: A parcel of land located in the Northwest Quarter of the Northwest Quarter of Section 9, Township 3 North, Range 1 East, Boise Meridian, Ada County, Idaho, more particularly described as follows: Commencing at the corner common to Sections 4, 5, 8 and the said Section 9, from which the quarter corner common to said Sections 4 and 9 bears South 89°22110" East, 2659.63 feet; thence South 89°22110" East, 1017.87 feet to a point; thence South 01108113" West, 60.00 feet to a point on the Southerly right-of-way of Fairview Avenue (as described in Exhibit `B" of Warranty Deed, Instrument No. 99072864, of Official Records) said point being the REAL POINT OF BEGINNING; thence continuing South 01°08113" West, 889.79 feet to an angle point on the exterior boundary line of Crossroads Subdivision No. 4 as filed in Book 73 of Plats at Pages 7519 and 7520, records of Ada County, Idaho; thence along said exterior boundary line North 88151147" West, 287.81 feet to an angle point thereon; thence continuing along said exterior boundary line South 01°08113" West, 85.00 feet to a point thence leaving said exterior boundary line North 88051150" West, 660.17 feet to a point on the Easterly right-of-way of N. Eagle Road (State Highway 55); thence along said right-of-way North 01°08142" East, 870.30 feet to a point; thence North 58°10131" East, 134.35 feet to a point on the Southerly right-of-way of Fairview Avenue; thence along said right-of-way South 89°22'10" East, 317.30 feet to a point; thence continuing along said right-of-way North 87°53102" East, 500.81 feet to a point; thence continuing along said right-of-way South 89°22110" East, 17.84 feet to the REAL POINT OF BEGINNING, TOGETHER WITH the rights, benefits and easements reserved in the Quitclaim Deed, recorded November 25, 1988, as Instrument No. 8857970, as amended in that certain Exchange Deed, recorded April 8, 1994, as Instrument No. 94032501, in the Official Records of Ada County, Idaho. TOGETHER WITH the rights, benefits and easements as set forth in the Amended and Restated Declaration of Conditions, Covenants, Restrictions and Grant of Easements, recorded August 23, 1999, as Instrument No. 99084344, in the Official Records of Ada County. Idaho. TOGETHER WITH the rights, benefits and easements as set forth in the Easements with Covenants and Restrictions Affecting Land ("ECR"), recorded May 18, 2000, as Instrument No. 100038094, as modified by Instrument No. 105095158, recorded July 14, 2005, in the Official Records of Ada County, Idaho. Parcel III: A parcel of land located in the North half of the Northwest quarter of Section 9, Township 3 North, Range 1 East, Boise Meridian, Ada County, Idaho, more particularly described as follows: Commencing at the corner common to Sections 4, 5, 8 and the said Section 9, from which the quarter corner common to said Section 4 and 9 bears South 89°22110" East, 2659.83 feet; thence South 89122'10" East, 1017.87 feet (formerly described as 1017.88 feet) along the North line of said Section 9 to a point; thence South 01°08'13" West, 60.00 feet to point on the Southerly right-of-way line of Fairview Avenue (as described in Exhibit "B" of Warranty Deed, Instrument No. 99072864, of Official Records, said point being the REAL POINT OF BEGINNING; thence along said Southerly right-of-way line of Fairview Avenue South 89°22'10" East, 936.89 feet to a point on the Westerly right-of-way line of Records Avenue as described in Exhibit "C" of Warranty Deed Instrument No. 99072864, of Official Records; thence along said Westerly right-of-way the following courses and distances; thence South 44°28135" East, 41.07 feet; thence South 00°25100" West, 344.46 feet; thence South 09°55'31" East, 69.63 feet; thence South 00°24'57" West, 241.74 feet to the beginning of a non -tangent curve to the left; thence along said curve 54.02 feet, said curve having a radius of 199.89 feet, a central angle of 15129'04" and a long chord of 53.86 feet, which bears South 08°58150" East; thence South 18°08107" East, 80.48 feet; thence South 07°20'43" East, 10.42 feet to a point on the Northerly boundary line of Crossroads Subdivision No. 5, as filed in Book 75 of Plats at Pages 7779 and 7780, records of Ada County, Idaho; thence leaving said Westerly right-of-way line and along said Northerly boundary line North 89°35'32" West, 228.44 feet to the Northerly most corner common to said Crossroads Subdivision No. 5 and Crossroads Subdivision No. 4 as filed in Book 73 of Plats at Pages 7519 and 7520, records of Ada County, Idaho; thence leaving the Northerly boundary line of said Crossroads Subdivision No. 5 and along the Northerly boundary line of said Crossroads Subdivision No. 4 North 89°35132" West, 796.15 feet; thence leaving said Northerly boundary line North 01*08113" East, 827.28 feet to the REAL POINT OF BEGINNING. TOGETHER WITH the rights, benefits and easements as set forth in the Amended and Restated Declaration of Conditions, Covenants, Restrictions and Grant of Easements, recorded August 23,1999, as Instrument No. 99084344, in the Official Records of Ada County. Idaho. TOGETHER WITH the rights, benefits and easements as set forth in the Easements with Covenants and Restrictions Affecting Land ("ECR"), recorded May 18, 2000, as Instrument No. 100038094, as modified by Instrument No. 105095158, recorded July 14, 2005, in the Official Records of Ada County, Idaho. Parcel IV: Lot 1 in Block 1 of Records East Subdivision, according to the official plat thereof, filed in Book 80 of Plats at Pages 8654-8656, records of Ada County, Idaho. TOGETHER WITH the rights, benefits and easements as set forth in the Easements with Covenants and Restrictions Affecting Land ("ECR"), recorded May 18, 2000, as Instrument No. 100038094, as modified by Instrument No. 105095158, recorded July 14, 2005, in the Official Records of Ada County, Idaho. AFFIDAVIT OF LEGAL INTEREST OHIO STATE OF 1DA1119) CUYAHdGA COUNTY OF r4i A ) David E Weiss. the Executive Vice President of DDR Corp the sole member o1 GS II DOR LLC, the managing member of GS I Meridian Crossroads LLC, a Delaware limited (name) (address) liability company (the 'Company") having an address of 3300 Enterprise Parkway, Beachwood, OH 44122 (city) (state) being first duly sworn upon, oath, depose and say: the Company g the Company Is grants 1. That tam the record owner of the property described on the attached, and {-gent-rut) permission to: The land Group, Inc. 462 E. Shore Dr., Ste 100, Eagle, ID 83616 (name) (address) to submit the accompanying application(s) pertaining to that property. The Company agrees 2. 1 wgr-a to Indemnify, defend and hold the City of Meridian and its employees harmless from any claim or liability resulting from any dispute as to the statements contained herein or as to the ownership of the property which is the subject of the application. The Company hereby grants 3. ' heieby am permission to City of Meridian staff to enter the subject property for the purpose of site inspections related to processing said application(s). Dated this _day of MW 20� GS II Meridian Crosroads LLC, a Delaware limited liability company By: GS II DDR LLC, Its Managing Member RBDDR 1 errtL By: Dave E clss (Signature) Executive Vice President SUBSCRIBED AND SWORN to before me the day and year first above written. 2 L14;gf 'pPV"'. (Notary Public foridrAw) 9" t/��,� DEBRACASPIO ON *= Notary Public, State of Ohio Residingat: Oh/o My Commission Expires March 6, 2019 My Commission Expires:ao/ j Community Development v Planning Division w 33 E. Broadway Avenue, Ste. 102 Meridian, Idalto 83642 Phone: 208-884-5533 rux: 208-888.6854 meridian r jL1 ora. pinnning Attachment to Affidavit of Legal Interest - GS II Meridian Crossraods LLC EXHIBIT A Parcel 11: P.1 o f 2 - A parcel of land located in the Northwest Quarter of the Northwest Quarter of Section 9, Township 3 North, Range 1 East, Boise Meridian, Ada County, Idaho, more particularly described as follows: Commencing at the corner common to Sections 4, 5, 8 and the said Section 9, from which the quarter corner common to said Sections 4 and 9 bears South 89022110" East, 2659.63 feet; thence South 89°22110" East, 1017.87 feet to a point; thence South 01108'13" West, 60.00 feet to a point on the Southerly right -of --way of Fairview Avenue (as described in Exhibit "B" of Warranty Deed, Instrument No. 99072864, of Oficial Records) said point being the REAL POINT OF BEGINNING; thence continuing South 01*08113" West, 889.79 feet to an angle point on the exterior boundary One of Crossroads Subdivision No. 4 as filed in Book 73 of Plats at Pages 7519 and 7520, records of Ada County, Idaho; thence along said exterior boundary line North 88051147' West, 287.81 feet to an angle point thereon; thence continuing along said exterior boundary line South 01 °08113" West, 85.00 feet to a point thence leaving said exterior boundary line North 88051150" West, 660.17 feet to a point on the Easterly right-of-way of N. Eagle Road (State Highway 55); thence along said right-of-way North 01109142" East, 870.30 feet to a point; thence North 58*10'31" East,134.35 feet to a point on the Southerly right-of-way of Fairview Avenue, thence along said right-of-way South 89022110" East, 317.30 feet to a point; thence continuing along said right-of-way North 87053102" East, 500.81 feet to a point; thence continuing along said right-of-way South 89°22110" East, 17.84 feet to the REAL POINT OF BEGINNING. Parcel III: Aparcel of land located in the North half of the Northwest quarter of Section 9, Township 3 North, Range 1 East, Boise Meridian, Ada County, Idaho, more particularly described as follows: Commencing at the corner common to Sections 4, 5, 8 and the said Section 9, from which the quarter corner common to said Section 4 and 9 bears South 89022110" East, 2659.83 feet; thence South 89122110" East, 1017.87 feet (formerly described as 1017.88 feet) along the North line of said Section 9 to a point; thence South 01008113" West, 60.00 feet to point on the Southerly right-of-rvay line of Fairview Avenue (as described in Exhibit "B" of Warranty Deed, Instrument No. 99072864, of Official Records, said point being the REAL POINT OF BEGINNING; thence along said Southerly right -or -way line of Fairview Avenue South 89°22110" East, 936.89 feet to a point on the Westerly right-of-way line of Records Avenue as described in Exhibit "C" of Warranty Deed Instrument No. 99072864, of Official Records; thence along said Westerly right-of-way the following courses and distances; thence South 44°28135" East, 41.07 feet; thence South 00125100" West, 344.46 feet; thence South 09°55,31" East, 69.63 feet; thence South 00024157" West, 241.74 feet to the beginning of a non -tangent curve to the left; thence along said curve 54.02 feet, said curve having a radius of 199.89 feet, a central angle of 15029104" and a long chord of 53.86 feet, which bears South 08°68150" East; thence South 18°08107" East, 80.48 feet; thence South 07120143" East, 10.42 feet to a point on the Northerly boundary line of Crossroads Subdivision No. 5, as filed in Book 75 of Plats at Pages 7779 and 7780, records of Ada County, Idaho; thence leaving said Westerly right-of-way line and along said Northerly boundary line North 89035132" West, 228.44 feet to the Northerly most corner common to said Crossroads Subdivision No. 5 and Crossroads Subdivision No. 4 as filed in Book 73 of Plats at Pages 7519 and 7520, records of Ada County, Idaho; thence leaving the Northerly boundary line of said Crossroads Subdivision No. 5 and along the Northerly boundary line of said Crossroads Subdivision No. 4 North 89°35132" West, 796.15 feet; thence leaving said Northerly boundary line North 01008113" East, 827.28 feet to the REAL POINT OF BEGINNING. Ul O 4-J L. C: in E O Q oV =a L C� G Q 0 ca 0 0 o W N W V• w N � N 0 UR W o 0 N Ll o H r -I p z rm rn Id N a N io m m w Q QO`' tai GD w 4� \-N Y N U Z Q w Z J a 5 O w w O N ON 31OV3 N (Ia 31f)V3 N w a N4 ry l l w Q w z a w LL BrAV- H _. SIH: 76 c 0 E4i L 0 L u 0 0 `1-' a1 �p L C3) aJ — � a✓ aj inLn C: E o u 4J N o v c o n3 � > c la M 0 >, -i6 c o 4-1a m m E a a) L r Q. 0 U y Q C 00 0 o� 0- a o L —° 0- (a �_j- O N '- r -I O a CL ° a Ln 4/3/17 Address Verification: Crossroads Redevelopment Note: Grocery store and drive-through pharmacy to occupy previous Shopko location Address: 3499 E FAIRVIEW AVE, MERIDIAN, ID 83642 Save Reset Cancel Help Parcel Detail District Parcel # • Parcel Status Primary S1109223007 I Enabled Yes V Lot Block Subdivision —� 3N 1E 09 Terri Ricks I Addressing Specialist City of Meridian I Community Development Department 33 E. Broadway Ave., Meridian, Idaho $3642 Phone: 208-489-03181 Fax: 208-887-1297 Email: tricksOmerldiancity.orit CiWE IDR � Built for Business, Designed for Living www. opportunitvmeridion. orp ©®©013 All e-mail messages sent to or received by City of Meridian e-mail accounts are subject to the Idaho law, In regards to both release and retention, and may be released upon request, unless exempt from disclosure by Jaw, sp¢oa ssoa3 ueipipaaw *### uoijuai�ddd egg r MOIAaa u6�sap / �Z9 MOIAaa UDIsau / 3n �, tt v }uawdoIanapaa IeiaaawwoO ue1d ajIS pasodoad '�'� N N L/ _ _ = 0HUHHH H++H''I _ {I}I IµI Iy'IIIIIII I = DHI'1111 IIII HI O = IIS Q 1 OH++H+ql oHHf+H� O+HH+i�I 9 DHHH-� i OH+� 7$ _ SII 01+III+ II II i'I�H III+ Y"iy IIIIIIII IIII IIIII O 0 I l lel 11 II 111I1*4 v - I OI I I 9l u-� e IIII IU'Uo e o o y 0 0 0 0 _ o - - o q ,0000,Qo IIII I -- d r1� C=3 [�U a HE 1 11 - o �- y o�o - '!I; II IIIIIIII IIIIII IIIII IIIII1111 IIIIJLIV OVOH 31OV3 H1HON I 9 a IIID 0 1I I I,: _ O+H++4}IH+O oHH+H+ ,"I" ,+Ho ' Illolll Q D IIIIIII�I T IIIII NN��''`` nlnlnlnnnlllllllrn all, IIIIIIIIIIIIIIII V 0 off+H+I++H+H�++H=MID =_ _~0wIll11lII�o Q 1 OH++H+ql oHHf+H� O+HH+i�I 9 DHHH-� i OH+� 7$ _ SII 01+III+ II II i'I�H III+ Y"iy IIIIIIII IIII IIIII O 0 I l lel 11 II 111I1*4 v - I OI I I 9l u-� e IIII IU'Uo e o o y 0 0 0 0 _ o - - o q ,0000,Qo IIII I -- d r1� C=3 [�U a HE 1 11 - o �- y o�o - '!I; II IIIIIIII IIIIII IIIII IIIII1111 IIIIJLIV OVOH 31OV3 H1HON I 9 a ..1poW speoa ssoao ueippo w mainaa uGisap / 3Z3 }uawdolanapaa 1e1aaawwoO ueld odeespuel 19 Mid OMS uoileailddtl moinaa uGisaa / 3Z3 ueld a}is posodoad a _ N co m a a W W= O WR zR Mmi �I N �y�y� MID 5LL 9� >a9 E LLs�d� MHz �_�_� <F� ff<s m I I7 .es �'UE8s �g fiaaff>L afr a _ N co m a a W W= O WR zR Mmi �I N speoa ssoaa uRpiaaw uogeanddd hit m81Aaa u6isaa / 3Z9 mainaa Asea / ON�%, 1 v ;uawdolampab jeiaaawwoa siie}aa ade3spue7 pasoftd `�" r SSA-,- m- w g W I O• •o I • 3a� � < �� W - €�o d �r L! of �. a8�nss�o oast pminim! !1 Sm� � m 11 Mill g_ i 3 1 3 3 3 3 65 �' j:M1 lull 3 1 � 1' N .'4. >c NO ball _ � 1 c1 sy < e fr � lull K' w iw h n G lullw�a� S $ tlh : 1 5 1! 1F =y c <y I lull! 111H 5 $`y" lull l 1 p €� � I"! !gamyFgd �o1t�o .so w- DIR'M 11ao g inn in AN Jul oB� naw <� "�1 s1 yyIHN��!U�u 11 wie o"H>1110s1'DN IoW �y'bl NNO Hill =s u�i ��s a z y e�u�wme os� M ni 101y:�o� s=ssw��<s"= �m "no a y y < a WERE�.� r7� •�•a7 1 ;[ !, ;:� ;; P , r \ \�f \ — --_ w� M (\ / / ) . m \ ) © $$ I \ \ j §' r j = } M,. mi / Z i./_ = /j ƒ e $ m- p- \ -- z- : 0 § I§ ( / } \ j • § , _ »� < - \ \ %j %•� » ` \ - ®� _ .! 1 - \ - ; r ) 8 \ > J \ \§G ; T R \ _ . L B. L 0ldl'l ) > 2 < 7\ = z = -n m = o Cu > « . ! , \ . r § , p ~RrP@« Exterior Elevations C2ZDesign Review ~ CommercialRedevelopment c&ZDesign Review !;; AA2um Meridian Crossroads _ _ 128'-0' T.O. WALL ADJACENT BUILDING FRONT PERSPECTIVE T.O. WALL 112'-0" — — B.O. CANOPY — FINISH FLOOR PHARMACY FRONT ELEVATION DRIVE THRU ADJACENT BUILDING h 127-4" T.O. "ALL too• -o° = - FINISH FLOOR LEFT EL REAR ELEVATION h K L V T.O. ROOF %A K MATCH DEEP 3N-- BROWN PAINT T.O. ROOF E.I.F.S.-PAINTTO D MATCH LIGHT 120120' — 8,0. CANOPY VERTICAL FIBER Y3' CEMENT BOARD B.O. CANOPY VENEER 100'-0" TILEVENEER FINISH FLOOR RIGHT El MATERIALS & FINISHES •k- A STONE VENEER —_ E.LF.S.-PAINT TO MATCH DEEP BROWN PAINT E.I.F.S.-PAINTTO C MATCH LIGHT ACCENT PAINT VERTICAL FIBER D CEMENT BOARD VENEER E TILEVENEER F (E) CMU DEEP BROW N PAINT - G DEEP BROWN PAINT HMEDIUM BROWN PAINT JLIGHT ACCENT PAINT KWARM GREY PAINT L PRE -FINISHED LOWERS MCLEAR GLAZING NLIGHTTINT GLAZING /it W ya r= 3 � o ECL � c ao co CC r� C =O D 07 b - c 'y Q C O EN•CC= G O ci e h C O 7 co W � O i O C � EL d! Ey .Q WG CL. d v O N C� O wwL LE THE LAND GROUP wlNfm�wry PE^SES Eccref4pp5 ALi�a135.1�b! mlea na: 71e1 p.kd1— 04.11.17 DftWed trf• z D.kld b. w sN*fb.: Al