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Jesse S. Ishikawa, Shareholder, Reinhart Boerner Van Deuren, Madison, Wis.

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10527518

INTRODUCTION TO EASEMENTS

IRWA - Wisconsin Chapter Quarterly Meeting December 5, 2013

Jesse S. Ishikawa Reinhart Boerner Van Deuren s.c. 22 East Mifflin Street, Suite 600

Madison, WI 53703 (608) 229-2208

jishikaw@reinhartlaw.com

© 2013 by Jesse S. Ishikawa All Rights Reserved

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I. WHAT IS AN EASEMENT?

A. Definition. A good working definition states that an easement is a nonpossessory interest in land owned by another to use the land for a specific purpose without profit. Elements:

1. Nonpossessory.

2. Interest in land.

3. Owned by another.

4. To use the land for a specific purpose.

5. Without profit.

B. Benefits and burdens. Every easement has a benefit and a burden.

1. The benefit consists of the easement rights granted to the easement holder over somebody else's land.

2. The burden is the obligation imposed on the owner of the land that is subject to the easement.

3. Examples:

a. Where Parcel A is served by an access easement over Parcel B, Parcel A benefits from the easement in that the owner of Parcel A has the right to drive over Parcel B. Parcel B is burdened by the easement since the Parcel A owner can drive over Parcel B.

b. The telephone company has an easement to put an overhead line over a farmer's property. The telephone company enjoys the benefit of this easement and the farmer is subject to the burdens of this easement.

c. Where there is a party wall easement that provides for joint maintenance of a common wall between two buildings, the owner of each building is both burdened and benefited by the easement.

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C. Easements appurtenant vs. easements in gross.

1. Easements appurtenant are easements where the benefit of the easement runs with a particular piece of property.

a. For every easement appurtenant, there is a "benefited" property and a "burdened" property. With an easement appurtenant, when you transfer the benefited property, the easement goes along with the property even if it is not specifically mentioned in the deed. All who possess, or who succeed to title to the benefited property become, by virtue of the fact of possession, entitled to the benefit of the easement.

b. There can be no conveyance of the easement right apart from the conveyance of the benefited property.

c. Example: a driveway over Parcel B for the benefit of Parcel A.

2. Easements in gross. With an easement in gross, there is no "benefited property." There is only a benefited easement holder.

a. An easement in gross runs to a named easement holder who can assign these rights to some other party irrespective of whether the beneficiary owns any particular land.

b. Example: a utility easement runs to the utility, not to the owner of any particular lands.

3. There is a judicial preference in favor of easements appurtenant over easements in gross.

D. Easements are used for numerous purposes, such as:

1. Pedestrian and vehicular ingress/egress.

2. Utilities.

3. View corridors.

4. Building setbacks.

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5. Temporary construction.

6. Subjacent and lateral support.

7. Party walls.

8. Use of airspace.

a. Avigation easements near airports.

b. Tower crane "overswing" rights.

II. CREATION OF EASEMENTS.

A. There are a number of ways in which easements are created.

1. Express grant.

2. Implied easements.

3. Necessity.

4. Prescription.

5. Notations on plats and certified survey maps.

6. Condemnation.

7. Vacation of streets.

B. Express grants are the easiest and most common way in which to create an easement.

1. An express easement must be granted by the owner of the property that will be burdened by the easement.

2. Since an express grant is an interest in land, the statute of frauds applies (Section 706.05, Wis. Statutes).

a. The general rule, 706.05(2m)(a), is that an easement must have a full legal description.

b. But: Section 706.05(2m)(b) provides an exception to the general rule, and states that the requirement of a full legal description does not apply to descriptions of easements for the construction, operation or

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maintenance of electric, gas, railroad, water, telecommunications or telephone lines or facilities.

3. An easement may be a separate document or it may be created by the addition of easement language to a deed.

C. Implied easements are easements that are created where the actions of all of the parties suggest that everybody intended that an easement should have been created, but that everybody simply forgot to write it down. An implied easement may be created when the following circumstances exist:

1. The grantor owns a piece of property that is served by a common improvement--such as a roadway or a utility conduit.

2. The grantor then slices off a chunk of the property and conveys it to a grantee but forgets to grant an easement for the common improvement.

3. The rule in Wisconsin is that for an implied easement to exist, the easement must be so absolutely necessary that without the easement, the grantee cannot enjoy the use of the property granted. Bullis v. Schmidt, 5 Wis.2d 457 (1959).

4. Implied easements are also called "quasi-easements" and are disfavored. There are some old cases in Wisconsin that say that implied easements simply don't exist in Wisconsin. Scheeler v. Dewerd, 256 Wis. 428 (1950). However, more recent cases say that they do exist. Stoesser v. Shore Drive Partnership, 172 Wis.2d 660 (1993); Bullis v. Schmidt, 5 Wis.2d 457 (1959).

D. Ways of Necessity.

1. A way of necessity may be created when the grantor conveys lands that have no outlet to a public road except over the remaining lands of the seller. The grantee will then have the right to go across the grantor's lands to get to the road at a location which is reasonably convenient to both parties.

2. This is a little different from an implied easement because with an implied easement, the location of the easement is known. Remember that an implied easement always involves

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some preexisting physical improvement, such as a road. A way of necessity doesn't require a physical improvement.

3. Also, a way of necessity will cease to exist when the necessity ceases to exist.

4. Is an easement by necessity created when the act of landlocking a parcel of land is the act of the owner of the landlocked parcel rather than the owner of the parcel lying between the landlocked parcel and the public right of way? According to McCormick v. Schubring, 267 Wis. 2d 141 (Wis. 2003), it depends on "balancing the equities" of the two sides. Note, though, that the Wisconsin Supreme Court, in AKG v. Kosterman, rejected equitable considerations and balancing tests in express easements.

E. Easements by Prescription. Prescription is the fancy legal term for "squatter's rights." Just as the law recognizes squatter’s rights as they apply to fee simple title, they also recognize squatter’s rights as they apply to easements. To establish an easement by prescription in Wisconsin, you must have:

1. Adverse use that is hostile or inconsistent with the exercise of the title holder's rights. The opposite of a hostile use is a permissive use. County of Langlade v. Kaster, 202 Wis.2d 449 (Wis.App.1996).

2. Such use must be visible, open and notorious. This means that you can't acquire a right to a walkway easement by using a path in the middle of the night when nobody can see you. County of Langlade, supra.

3. There must be an open claim of right.

4. The adverse use must be continuous and uninterrupted for a period of 20 years.

5. But: if the squatter is a domestic corporation organized to furnish telegraph or telecommunications service or transmit heat, power or electric current to the public or for public purposes, or a cooperative organized to furnish telegraph or telecommunications service or to transmit heat, power or electric current to its members, the period is shortened to 10

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years. Section 893.28(2), Wisconsin Statutes. Furthermore, this shorter period applies to permissive uses. Williams v. American Transmission Company, 306 Wis.2d 181 (Wis. App. 2007). In that case, an agreement that permitted an electric utility to construct and maintain electrical poles and transmission lines on a landowner's property made that right s revocable upon 30 days' written notice. The Court of Appeals held that the agreement met the terms of 893.28(2), and that use by the utility of the property for more than 10 years established the prescriptive use.

F. Easements Created by Plat. Easements can be created by the placement of notations on the plat.

1. If a plat shows easements, streets, rights of way, and common areas, and the plat is recorded, this automatically gives each person who purchases a lot the right to use all of the easements, streets, rights of way, and common areas that are shown on the plat. Threedy v. Brennan, 131 F.2d 488 (C.C.A. Wis.1943).

2. Under Section 236.293 of the Wisconsin Statutes, if any municipality or governmental authority requires that a note be placed on a plat as part of the plat approval process, then the note is deemed to be for the benefit of that authority and can be altered only with the consent of the authority that required the note to be put on the plat. This has the effect of making easements on plats not only easements appurtenant, in that they run in favor of all of the other lots on the plat, but easements in gross, in that they run to the various governmental authorities as well.

G. Condemnation. Easements can be created by condemnation by authorities that have the power of condemnation. These include just about all governmental authorities (the state, cities, villages, townships, school districts, vocational school districts) and public utilities (sewerage districts, power companies, pipeline companies, telephone companies, gas companies).

H. Vacation of Streets. Easements can be created by the opening of streets, installation of public utilities within the streets, and the subsequent vacation of streets. This is how it works:

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1. Under Sections 86.16 and 66.1005(2) of the Wisconsin Statutes, any person may, with the consent of the department of transportation (in the case of state highways), or with the written consent of local authorities (in the case of highways under their jurisdiction), construct and operate telegraph, telephone or electric lines, or pipes or pipelines for the purpose of transmitting messages, water, heat, light or power along, across or within the limits of the highway.

2. Under Section 66.1005(2) of the Wisconsin Statutes, whenever any public highway is vacated, the easements and rights incidental thereto acquired by or belonging to any county, school district, town, village or city, or to any utility or person in any underground or above-ground structures, and all rights of entrance, maintenance, construction and repair of the same shall continue, unless:

a. the holder of such rights consents to the discontinuance or the order of vacation;

b. the discontinuance of the easements and rights by the owner thereof is a part of the discontinuance resolution (in which case the owner of such rights is entitled to damages); or

c. the owner of such rights fails to use the same for a period of four years from the time that the public highway was vacated.

In short, a utility can acquire easement rights by installing improvements within a public highway. Once the highway is vacated the easement rights remain unless separately terminated.

III. INTERPRETATION ISSUES.

A. Overburdening the easement.

1. By increasing the intensity of the use. Suppose, for example, that the easement is a farm road in favor of a 40-acre parcel. 30 years later, development has moved closer to the 40-acre parcel and the benefited owner wants to subdivide the parcel into 60 lots. There are no Wisconsin cases on point. What

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may have been contemplated as a road serving a single farmette can end up being used to serve a 40-lot subdivision, and in that case, is the increase in the burden reasonable? Cases from other jurisdictions state that the parties are assumed to have intended a scope that would reasonably serve the purposes of the grant and to have foreseen reasonable changes in the use of the burdened property. What's important is the reasonable expectations of the parties at the time the easement is entered into.

2. By extending its use to other lands.

a. General rule: an easement for a right of way cannot be enlarged to benefit additional lands without the consent of the burdened owner. Sicchio v. Alvey, 10 Wis. 2d 528 (1960).

b. What happens if benefited owner acquires additional adjacent lands?

i. Gojmerac v. Mahn, 2002 WI App 22, 250 Wis. 2d 1: "an easement cannot be enlarged to include property acquired after creation of the dominant estate."

ii. Millen v. Thomas, 204 Wis. 2d 321 (Ct. App. 1996): subsequent acquisition of property adjacent to a benefited parcel does not, in itself, overburden the easement to the point that the easement should be extinguished.

iii. Grygiel v. Monches Fish & Game Club, Inc., 328 Wis.2d 436 (Wis. 2010): travel between benefited parcel and nonbenefited parcel held to overburden easement and give rise to an action for trespass.

iv. Nettesheim v. S.G. New Age Products, Inc., 2005 WI App 169: a benefited lot was subdivided and conveyed to owners of an adjacent lot. Court says, nice try, but no.

3. By making improvements to it.

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a. Beneficiary has the right to make reasonable repairs and improvements. Knuth v. Vogels, 265 Wis. 341 (1953).

b. Beneficiary may even have a duty to repair and maintain an easement. Shanak v. City of Waupaca, 185 Wis. 2d 568 (Ct. App. 1994).

B. Right to relocate the easement.

1. Common law rule: court cannot change location because of changed needs. Guse v. Flohr, 195 Wis. 139 (1928).

2. Third Restatement: burdened owner should be allowed to relocate the easement if:

a. The relocation does not substantially interfere with the use and enjoyment of the easement by the benefited owner, and

b. The benefited owner pays for relocation costs.

3. AKG v. Kosterman: sticks to common law rule. Also, rejects balancing test. 296 Wis. 2d 1 (2006).

C. Purpose of easement.

1. "Access." Atkinson v. Mentzel, 211 Wis. 2d 628. Said "access for all purposes excluding retail sales" includes utility access as well as pedestrian and vehicular access.

2. Ingress and egress.

D. Location and width.

1. If the location of a right of way is indefinitely described, the conduct of the parties can determine where the location will be. F. W. Woolworth Co. v. Vogelsang, 176 Wis. 366 (1922).

2. If document is unambiguous, the court will not go outside the four corners of the document. Eckendorf v. Austin, 239 Wis. 2d 69 (Ct. App. 2000).

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3. What if there's a discrepancy between the written document and the actual use of easement?

a. Eckendorf: although actual use of a 30-foot right of way was 24 feet in width, benefited party could remove obstructions within the entire 30-foot strip.

b. What if easement covers 40-acre parcel? or 300-foot wide strip?

E. Interference with the easement.

1. Landowner cannot unreasonably interfere with the use of the easement by the easement holder. An obstruction or disturbance of an easement is anything which wrongfully interferes with the privilege to which the owner of the easement is entitled by making its use less convenient and beneficial than before; obstructions or disturbances are unauthorized and constitute nuisances. Hunter v. McDonald, 78 Wis. 2d 338 (1977).

2. Figliuzzi v. Carcajou Shooting Club of Lake Koshkonong, 184 Wis. 2d 572 (Wis. 1994): hunt club that had rights to hunt and fish on the burdened property successfully enjoined condominium construction that would have interfered with its activities.

3. What if there are no actual damages? Jacque v. Steenberg Homes, Inc., 209 Wis. 2d 605 (1997) upheld an award of $100,000 in punitive damages where actual damages were only $1.00.

F. Easements for riparian rights

1. Background.

a. Riparian owner: "one who holds title to land abutting a body of water."

b. Riparian rights: the right of access to the water, the right to construct piers from their lands into the water, and the right to use the shore for bathing, boating or kindred purposes.

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2. Common law rules.

a. An easement to use shorelands did not make the easement holder a riparian owner.

b. BUT: the courts recognized that a riparian owner could grant riparian rights to non-riparian owners via easement.

3. Statutory modifications to common law rules.

a. In 1990, Section 30.131, Wis. Stats. was enacted. This section allows a non-riparian owner to maintain a wharf or a pier based on an easement for water access that was recorded before December 31, 1986, provided that certain conditions are met.

b. In 1994, Section 30.133 was enacted. This section states that no owner of riparian land that abuts a navigable water may convey, by easement or by a similar conveyance, any riparian right in the land to another person, except for the right to cross the land in order to have access to the water. This right to cross the land may not include the right to place any structure or material in the navigable water.

c. In 2007, Section 30.1335 was enacted to prohibit use of "marina condominiums" after June 1, 2007. A "marina condominium" is one in which the common elements, limited common elements, or condominium units consist of, or include, boat docking facilities, and to which either or both of the following apply:

i. One or more of the boat docking facilities is not appurtenant to a dwelling.

ii. None of the condominium units are dwellings.

4. There can be multiple riparian owners (tenants in common, owners of condominium units).

5. All pier rights are subject to DNR rules and regulations.

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6. Anchor Point Condominium Owner's Ass'n v. Fish Tale Properties, LLC, 313 Wis. 2d 592 (Ct. App. 2008) held that the right to "use" a pier was a riparian right that could not be granted by a riparian owner to a nonriparian owner.

G. Easements arising by operation of law: with implied easements and prescriptive easements, the scope of these easements is determined by the use of the property at the time of the inception of their use.

IV. TERMINATION.

A. Wisconsin courts do not favor forfeitures of easements. Vieth v. Dorsch, 274 Wis. 17 (1956). Misuse of an easement may create liability for damages but will usually not result in the court-ordered termination of the easement. Exception: where the easement by its own terms provides the landowner with this remedy.

B. In the case of an easement appurtenant, merger of ownership of burdened and benefited properties.

C. Termination agreement. Needs to follow the same formalities of an express grant--signed by the party who is giving up the easement, compliance with the statute of frauds, compliance with recording niceties, etc. The $64,000 question often is, who are the parties giving up the easement? Particularly with easements created by plat, or with statutory easements, this can be a difficult question to answer.

D. Prescription. Just as you can create an easement by making adverse use of an owner's property, the owner, by taking action that is inconsistent with your use of the easement and continuing to do so openly, notoriously, adversely, and continuously for the requisite number of years, can cause you to lose your prescriptive easement.

E. Condemnation. Easements can be condemned out.

F. Cessation of the necessity (in the case of ways of necessity).

G. Easements created by plats. To remove an easement that has been created by a notation on a plat, you need to determine:

1. Who is the beneficiary of the easement?

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a. If it's "all public utilities," then you need to obtain releases from every public utility serving the area in question.

b. If it could arguably be for the benefit of all of the lots, then you need to have all of the owners and mortgagees and everyone else having an interest in all of the lots grant releases.

2. Was the easement required as a condition to plat approval by one of the approving authorities? If so, you need to have that approving authority consent to the release.

a. This rule makes sense; otherwise the private lot owners could agree amongst themselves to remove an easement that was required because it fulfills some public purpose (such as a detention basin easement).

b. It's not always easy to find the municipal records that give the history of the plat. Thus, you may not be able to find out if the easement was required as a condition to plat approval.

H. Acquisition of title by bona fide purchaser without notice.

1. Section 706.08(1)(a), Wis. Stats. provides that every conveyance (which includes easements) that is not recorded "shall be void as against any subsequent purchaser in good faith and for a valuable consideration of the same real estate or any portion thereof whose conveyance shall first be duly recorded." Purchasers only have to go back 30 years in searching title. Section 706.09(1)(k), Wis. Stats.

2. So: under this general rule, if an easement is more than 30 years old and has not been referred to in a document recorded within the last 30 years, a bona fide purchaser for value who buys the property unaware of the easement takes the property free of the easement.

3. BUT: there is an exception for any outstanding interest in real estate owned, occupied, or used by a public service corporation, water carrier, electrical cooperative, the United

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States, the State of Wisconsin or any subdivision of either. Section 706.09(3), Wis. Stats.

14324436

RECIPROCAL AIRSPACE EASEMENT AND INDEMNIFICATION AGREEMENT (for use of tower crane)

Re: Property described on Exhibits A, B, C and D

Return to: Tax Parcel Nos. : See Exhibits A, B, C and D

THIS RECIPROCAL AIRSPACE EASEMENT AND INDEMNIFICATION

AGREEMENT ("Agreement") is entered into this ____ day of ______________, 20_____, by and among __________________ ("Owner A"), _______________ ("Owner B"), _________________ ("Owner C"), and ("Owner D").

RECITALS A. Owner A is the owner of certain real property located in the City of Madison, Dane County, Wisconsin, as described on the attached Exhibit A ("Owner A Property"). B. Owner B is the owner of certain real property located in the City of Madison, Dane County, Wisconsin, as described on the attached Exhibit B ("Owner B Property").

C. Owner C is the owner of certain real property located in the City of Madison, Dane County, Wisconsin, as described on the attached Exhibit C ("Owner C Property").

D. Owner D is the owner of certain real property located in the City of

Madison, Dane County, Wisconsin, as described on the attached Exhibit D ("Owner D Property").

E. The properties described on Exhibits A, B, C and D are referred to

individually as a "Property" and collectively as the "Properties." F. Owner A, Owner B, Owner C and Owner D (individually a "Party" and

collectively the "Parties") desire to grant each other airspace easement rights over their respective Properties pursuant to the terms of this Agreement.

AGREEMENT

NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are acknowledged, the parties agree as follows:

1. As used in this Agreement, each Party that desires to construct improvements on its Property is referred to as an "Owner," all Parties other than Owner are referred to as "Neighbors," the Property owned by the Owner is referred to as the "Owner's Property," and the property owned by the Neighbors are collectively referred to as the "Neighbors' Property."

2. Each Owner shall have a nonexclusive airspace easement over the

Neighbors' Property and any improvements now or in the future constructed

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thereon to allow for the passage of a construction crane, mobile crane, other lifting device or hanging scaffolding over the Neighbors' Property for the purpose of the construction, maintenance or repair of improvements on the Owner's Property.

3. If two or more Parties desire to simultaneously construct improvements on their respective properties, then the first Party to obtain a building permit shall be deemed the Owner, and the other Party or Parties shall be deemed the Neighbor. In such case, the Neighbor may not exercise the airspace easement over the Owner's Property in any manner that materially delays, prevents, or increases the cost of, the construction of the improvements on the Owner's Property until the Owner completes construction on Owner's Property. If the exercise of the airspace easement by the Neighbor would increase the cost of the construction of improvements on the Owner's Property but would not materially delay or prevent such construction of improvements on the Owner's Property, then the Neighbor shall be permitted to proceed with the exercise of its easement rights provided it reimburses the Owner for such increased costs. The Owner and Neighbor shall cooperate with each other during any simultaneous construction to minimize costs and delays to each other's projects.

4. At all times that any Owner is using the airspace easement as set forth above, the Owner shall maintain liability insurance in the minimum amount of $2,000,000 naming each of the Neighbors as additional insureds covering injury to persons and damage to their Properties resulting from the setting up, standing and operation, and taking down of said construction crane, mobile crane, lifting device, hanging scaffolding and appurtenances thereto. The policy of liability insurance shall provide that said policy cannot be terminated or cancelled without at least thirty (30) days written notice to each additional insured. Prior to the setting up of any construction crane, mobile crane, lifting device, or hanging scaffolding, the Owner shall have provided each of the Neighbors with a copy of said policy of insurance. During any period of time said policy of insurance is not in effect, the airspace easement granted by this document in favor of the Owner shall be and hereby is suspended and no crane used by or for the benefit of the Owner or the construction project shall enter or occupy any airspace above any Neighbor's Property. The $2,000,000 set forth herein shall be increased from time to time to comply with commercially reasonable practices prevalent in Dane County, Wisconsin.

5. Each Owner agrees to indemnify, defend, and hold harmless the Neighbors and the officers, directors, shareholders, members, partners, trustees, trust beneficiaries, agents, successors and assigns of any of the foregoing (collectively the "Neighbor Parties"), from and against any and all claims, causes of action, costs, personal injuries, losses, damages, liabilities, demands, interest, administrative orders and notices, fines, penalties and expenses, including, without limitation, reasonable attorneys fees and expenses, consultants fees and expenses, court costs and all other out-of-pocket expenses, suffered or incurred by the Neighbor Parties as the result of any and all demolition, excavation, maintenance,

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repair or construction activity conducted by or at the request or direction of the Owner. This indemnification includes, without limitation, all claims, losses and demands resulting from any excavation, pile driving, crane accident, from the collapse of any crane, lifting device, scaffolding or any appurtenances thereto, the collision of the crane, lifting device, scaffolding or any appurtenances thereto with any improvements, personal property or persons on each Neighbor's Property, the dropping of any material from the crane, lifting device, scaffolding or any appurtenances thereto onto each Neighbor's Property and the loss or interruption of utility service or access to each Neighbor's Property. If any improvement or personal property on the Neighbor's Property is damaged by or as a result of maintenance, repair or construction activities on the Owner's Property, then the Owner shall, upon written request by the Neighbor, promptly repair such damage. If such repair is not completed within thirty (30) days of such notice (weather permitting) or as needed in case of an emergency, then the Neighbor whose Property has been damaged may make the repairs and the Owner shall, upon demand, pay the Neighbor 1.50 times the cost of repair reasonably incurred by the Neighbor.

6. Each Neighbor agrees to promptly give the Owner written notice of any claims for which the Owner may have an obligation of indemnification under this Agreement and further agrees to reasonably cooperate in the defense of any such claims. The Owner shall reimburse the Neighbor for any out of pocket costs associated with such duty of cooperation.

7. This Agreement constitutes the entire Agreement by and between the Parties relating to airspace easements over each other's Properties.

8. This Agreement shall be binding upon the parties hereto and their respective successors and assigns and shall run with the land. All references to "Owner," "Party," and "Neighbor" shall include the successors and assigns of the Parties hereto. The airspace easements granted hereby are easements appurtenant, shall benefit and burden the Properties described herein, and may not be separated from title to the Properties described herein.

9. Nothing in this agreement limits or precludes construction or vertical expansion of any improvements or appurtenances by any Party on such Party's Property. The airspace easement rights granted in this Agreement are only over the airspace that exists at such times during which the Owner is exercising such rights.

10. This Agreement and any amendments thereto shall be construed in accordance with and governed by the laws of the State of Wisconsin.

[ADD SIGNATURE BLOCKS, ACKNOWLEDGEMENTS,

MORTGAGEE CONSENTS, AND EXHIBITS]

14324532

WIND ENERGY EASEMENT AGREEMENT This Wind Energy Easement Agreement (“Agreement”) is entered into this_______ day of ________________, 20__ (the “Commencement Date”) by and between ___________________________________________. (collectively, jointly and severally, the “Owner”) and __________________, and its successors and assigns (“Grantee”). Capitalized terms used in this Agreement shall, unless otherwise indicated herein, have the meaning specified in Exhibit A attached hereto.

RECITALS

A. Owner is the owner of certain real property located in _________County in the State of _______________________.

B. Grantee desires to obtain certain easements for wind energy purposes, and Owner desires to grant certain easements to Grantee pursuant to and in accordance with the terms of this Agreement.

AGREEMENT

1. Grant of Easement.

1.1 Grant of Easements. For good and valuable consideration, the receipt of which is hereby acknowledged by Owner, Owner hereby grants to Grantee, and Grantee hereby accepts from Owner, subject to the terms and conditions of this Agreement, easements over that certain real property situated in ___________ County, State of _____________, more particularly described in Exhibit B attached hereto and incorporated herein, and to be further limited consistent with the illustration set forth in Exhibit C also attached hereto and incorporated herein (the “Property”) for the purposes described in Sections 1.2 and 1.3 only. Grantee agrees to provide Owner a revised legal description of the Property as limited by Exhibit C within thirty (30) days after the commencement of construction on the Property.

1.2 Wind Power Easement. Owner hereby grants to Grantee the exclusive easement and right to use the Property for Wind Energy Purposes. “Wind Energy Purposes” means converting wind energy into electrical energy, and collecting and transmitting such electrical energy, together with any and all activities related thereto (“Development Activities”), including, without limitation, (a) determining the feasibility of wind energy conversion on the Property, including studies of wind speed, wind direction and other meteorological data, extracting soil samples, and undertaking archeological, environmental and similar studies; (b) constructing, installing, replacing, relocating and removing from time to time, and maintaining and operating, Turbines, underground electrical transmission and communications lines, electric transformers (but not electrical substations), above ground junction boxes, roads, meteorological towers and wind measurement equipment, and related facilities and equipment (collectively, and together with the Transmission Facilities and Access Roads, the “Wind Power Facilities”) on the Property; (c) a major physical overhaul (including removal and replacement)

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of any then existing Wind Power Facilities on the Property (such major physical overhaul referred to herein as a “Repowering”); and (d) undertaking any other activities, whether performed by Grantee or a third party, including any media, research, development, demonstration or compliance activities related to Wind Energy Purposes, that Grantee reasonably determines are necessary, useful or appropriate to accomplish any of the foregoing. Grantee shall not place any signage on any Turbine or Turbine tower which is not related to the safe operation of the Wind Power Facilities or required by state, federal, or local laws, ordinances or safety standards; provided, however, signage indicating the manufacturer or model of the Turbine is expressly permitted hereunder. Grantee shall not locate any equipment on the Property that is unrelated to the operation of the Wind Power Facilities, such as cell phone communication equipment, without the written consent of Owner.

1.3 Ancillary Rights and Easements.

(a) Grant of Access, Construction, Operation and Maintenance Rights. Owner hereby grants to Grantee and Grantee's agents, representatives, employees, contractors and invitees the right of ingress to and egress from any Wind Power Facilities (whether located on the Property, on Adjacent Property or elsewhere) over and across the Property by means of roads and lanes thereon if existing, or otherwise by such route or routes as Grantee or Owner may construct from time to time (“Access Rights”) and the right to construct, reconstruct, replace, relocate, remove, maintain and use any Wind Power Facilities. Owner further grants Grantee the right to film or record (including a webcam showing site activities on the internet) any aspect of the Property for publicity, marketing, research or educational purposes associated with wind development or Grantee’s business.

(b) Grant of Turbine Easement. Owner hereby grants Grantee one or more easements for construction, operation and maintenance of Turbines on, over and across the Property on such portions of the Property as determined by Grantee in consultation with Owner in accordance with Section 2 (the “Turbine Easements”). The Turbine Easements shall contain all of the rights and privileges as set forth in Section 1.3(a) of this Agreement and shall include the following components for each Turbine located on the Property: (i) one circular exclusive use area, which shall be centered around each Turbine and have a diameter of 75 feet (“Exclusive Use Area”), and (ii) one circular non-exclusive use area, which shall be centered around each Turbine and have a diameter of 750 feet, excluding the Exclusive Use Area, for constructing, maintaining and "laying down" the Wind Power Facilities. Grantee may prohibit any activity by Owner within the Exclusive Use Area for any reason which Grantee deems detrimental to Grantee’s use of the Exclusive Use Area. Grantee will, upon the request of Owner, consider permitting Owner to conduct ordinary agricultural activities within the Exclusive Use Area if Grantee determines, it its sole discretion, that such agricultural activities do not interfere with Grantee’s use of the Exclusive Use Area. If within fifteen (15) days after the completion of construction on the Property Owner provides written notice to Grantee requesting that any crane pad constructed on the Property not be removed, then Grantee shall not remove any such crane pad and Owner shall have use of such crane pad for any reason that does not interfere with Grantee’s use of the Property. If Owner makes such a request, Grantee

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shall not be obligated, pursuant to Section 6.3, to return the area occupied by a crane pad to the physical condition existing prior to the commencement of construction.

(c) Grant of Transmission Easements. Owner hereby grants Grantee one or more easements for Transmission Facilities (“Transmission Easements”) on, over and across the Property, on such portions of the Property as determined by Grantee in consultation with Owner in accordance with Section 2. Any such Transmission Easement shall contain all of the rights and privileges as are set forth in Section 1.3(a) of this Agreement. For purpose of this Agreement, a single underground Transmission Easement may accommodate up to three (3) parallel three-phase circuits and accompanying communication lines. Transmission Easements shall be fifty feet (50) feet in width for the initial three circuits and shall extend an additional twenty (20) feet for each additional circuit within the Transmission Easement.

(d) Grant of Access Roads Easements. Owner hereby agrees to grant to Grantee easements for non-exclusive pedestrian and vehicular access by Grantee, and Grantee's agents, representatives, employees, contractors and invitees on, over and across the Property on such portions of the Property as determined by Grantee in consultation with Owner in accordance with Section 2 (“Access Easements”). Such Access Easements may be located on existing roads and lanes on the Property, if existing, or otherwise by such route or routes as Grantee shall construct (such roads, lanes and routes shall be referred to as the “Access Roads”). Access Roads shall be maintained at a width of approximately sixteen (16) feet or narrower, except if the Access Roads need to be wider for purposes of erosion control or in areas requiring a larger turning radius to accommodate construction vehicles. The Access Roads may be temporarily widened for the purpose of maintenance, repair, or the Repowering of the Wind Power Facilities. Owner shall be compensated for any damage to crops outside of the Access Roads in accordance with Section 4.3 (Crop Loss). All Access Easements shall include the right to improve existing roads and lanes. Grantee shall have the right to assign or convey all or any portion of any Access Easement to any Person on an exclusive or nonexclusive basis provided that Grantee shall not take any action that would permit such roads to be deemed public roads. Owner shall be permitted to use Access Roads provided that Owner's use does not interfere with Grantee’s ability to access its Wind Power Facilities. Owner hereby agrees to indemnify Grantee against any damage caused to service roads constructed, improved or maintained by Grantee to the Wind Power Facilities as a result of the use thereof by Owner or any licensee, permittee or grantee of Owner (including any Crop Farmer, as defined below), and any costs to repair any such service road incurred by Grantee as a result of such damages.

(e) Grant of Temporary Easements. Owner hereby agrees to grant to Grantee, its employees, agents and contractors (including governmental agents and inspectors) temporary easements over and across the entire Property (the “Temporary Easements”) to undertake certain temporary activities including, without limitation, feasibility studies, environmental assessments, avian and/or bat assessments, soil tests, site investigation, construction, major repairs, Repowering and Decommissioning of the Wind Power Facilities. The Temporary Easements shall include the right to install, maintain, operate, inspect and

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remove one or more temporary monitoring devices or other equipment necessary to undertake such temporary activities.

2. Consultation with Owner on Location of Wind Power Facilities. Grantee agrees that it shall consult with and consider input from Owner in determining the location of the Turbine(s), Access Road(s) and Construction Area(s) to be located on the Property and with such input shall develop a preliminary site layout plan (“Site Plan”) depicting the location of such facilities. The Site Plan shall be provided to Owner prior to commencement of construction on the Property for Owner’s final review and comment. Grantee shall use commercially reasonable efforts to locate such Turbine(s), Access Road(s) and Construction Area(s) in accordance with the Site Plan and in no case shall deviate by a distance greater than 150 feet from the preliminary location as depicted in the Site Plan, without the prior consent of Owner. Owner acknowledges and agrees that Grantee retains the right in Grantee’s sole discretion to determine the location of Wind Power Facilities on the Property. Construction activities pursuant to this Section 2 shall be limited within an area designated by Grantee as a construction area or areas in the Site Plan (“Construction Area”). After the completion of construction, and upon the written request of Owner, Grantee shall provide Owner a site plan depicting the final locations of all turbines comprising the Project.

3. Term.

3.1 Term of Agreement and Easements. The overall term of this Agreement shall begin upon the Commencement Date and shall continue through the Development Term, the Operating Term and the Renewal Term, or until the expiration or termination of this Agreement, whichever occurs first (“Term”). For the avoidance of doubt, the Turbine Easements, Transmission Easements, Access Easements and Temporary Easements shall run with the Property and shall bind Owner and its transferees, successors and assigns, and shall remain in effect during the Term of this Agreement.

3.2 Development Term. The development term of this Agreement shall run from the Commencement Date until either (i) the Operating Term Use Fee Commencement Date occurs, (ii) _____________, 20___, or (iii) Grantee exercises its right to terminate this Agreement under Section 16, whichever occurs first (“Development Term”).

3.3 Operating Term; Renewal Term. The operating term of this Agreement shall begin upon the Operating Term Use Fee Commencement Date, and shall end on the date falling twenty (20) years after the Commercial Operation Date (the “Operating Term”). The Operating Term may be extended by Grantee for not more than two (2) 10-year terms (each a “Renewal Term”) after the initial Operating Term, for a total potential Operating Term of not more than forty (40) years after the Commercial Operation Date. If Grantee elects to exercise its right to extend the Operating Term (the “Renewal Option”), it shall deliver written notice to Owner no later than four (4) months prior to the expiration of the initial Operating Term or a Renewal Term, as applicable. Each Renewal Term shall begin on the calendar day following the expiration date of the initial Operating Term. The Renewal Term shall contain all of the same terms and conditions as provided in this Agreement.

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4. Use Fees.

4.1 Development Term Use Fees. Grantee shall pay to Owner use fees during the Development Term in an amount equal to _______________ Dollars per acre of Property per calendar year (“Development Term Use Fees”). The Development Term Use Fees shall be increased at the beginning of each calendar year by __________ percent (__________%) per annum. Undisputed Development Term Use Fees for each calendar year shall be paid on or before the last Business Day of the applicable calendar year. Any undisputed Development Term Use Fees for each calendar year not paid when due shall accrue interest at a rate equal to Bank of America’s prime rate plus two percent (2%) per annum (the “Late Payment Rate”).

4.2 Operating Term Use Fees.

(a) Grantee shall begin paying Operating Term Use Fees, as defined below, to Owner upon the commencement of construction of any one of the Access Roads, Turbines or Transmission Facilities depicted in the Site Plan on any property that is subject to a Wind Energy Easement Agreement as part of the Project (the “Operating Term Use Fee Commencement Date”). The first year’s Operating Term Use Fees will be paid to Owner within thirty (30) days of the Operating Term Use Fee Commencement Date, and shall be determined on a pro rata basis for that initial calendar year and the last calendar year, in each case if less than a full year. Payments of Use Fees for each calendar year during the Operating Term after the initial calendar year of the Operating Term shall be due on January 1 for that calendar year. Operating Term Use Fees shall end on the last day of the Operating Term or in accordance with the provisions of Section 6.3(a) of this Agreement, if the Removal Date is before the end of the Operating Term. Operating Term Use Fees shall be paid within thirty (30) days of the date when due. Any Operating Term Use Fees not paid within such 30-day period shall accrue interest at the Late Payment Rate.

(b) “Operating Term Use Fees” shall be calculated as follows:

(i) Turbine Site Use Fees. During the Operating Term the annual Operating Term Use Fees shall be equal to ______________ Dollars ($_________) per megawatt (“MW”) of installed nameplate capacity of Turbine(s) installed entirely on the Property or ___________ Dollars ($____________), whichever is greater (the “Turbine Site Use Fees”); provided, however, that in the event the Use Fee Commencement Date occurs after December 31, 20___, the first Turbine Site Use Fees payment shall be adjusted consistent with the Annual Adjustment thereafter as if the Use Fee Commencement Date had occurred on or before December 31, 20___. The amount of Turbine Site Use Fees payable hereunder for any year shall be prorated based on the actual MW of installed nameplate capacity of Turbines so installed entirely on the Property but in no case shall be less than $____________. The Turbine Site Use Fees shall be increased annually, commencing on the Commercial Operation Date and for each anniversary of the Commercial Operation Date thereafter, by ___________ percent (____ %) per annum (the “Annual Adjustment”). The Turbine Site Use Fees shall constitute full compensation for the Wind Power Facilities, the Turbine Easements, Access Easements, Transmission Easements and Temporary Easements.

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(ii) Lump Sum Payments for Additional Facilities. Upon the Operating Term Use Fee Commencement Date, (A) if Grantee will install four (4) or more underground electrical circuits on the Property, Grantee shall pay Owner a one time lump sum payment equal to the sum of ________________ Dollars ($____________) for the first half mile of underground electrical circuts to be installed on the Property plus ______________ Dollars ($_____) for each quarter mile thereafter of underground electrical circuts to be installed on the Property and (B) if Grantee will construct any Access Road(s) that extend from the Property onto any neighboring or adjacent property, Grantee shall pay Owner a one time lump sum payment equal to the sum of ________________________________ Dollars ($_____) for the first half mile of such Access Road(s) located on the Property plus ____________________ Dollars ($__________) for each quarter mile thereafter of such Access Road(s) located on the Property.

(iii) Permanent Meteorological Tower Use Fees. In the event that Grantee installs a permanent meteorological tower on the Property, Grantee shall pay to Owner _______________________________ Dollars ($____________________) per year for each such permanent meteorological tower installed on the Property if a Turbine is also sited on the Property and _________________ Dollars ($_______) per year for each such permanent meteorological tower installed on the Property if no Turbine is sited on the Property (the “Meteorological Tower Use Fees”). The Meteorological Tower Use Fees shall also be subject to the Annual Adjustment.

During any Renewal Term the annual Operating Term Use Fees shall be calculated in accordance with Section 4.2(b)(i), 4.2(b)(ii) or 4.2(b)(iii) whichever applies, including any Annual Adjustment. In addition, if this Agreement is renewed in accordance with Section 3.3, on the date of such Renewal Term the Operating Term Use Fees shall be adjusted for inflation, based upon the increase, if any, in the Consumer Price Index-Urban, as published by the United States Department of Labor Bureau of Labor Statistics, between the beginning of the initial Operating Term and the date of the commencement of the first Renewal Term for the first Renewal Term and between the beginning of the first Renewal Term and the commencement of the second Renewal Term for the second Renewal Term.

4.3 Crop Loss. Grantee will compensate Owner for crop loss from destruction and/or compaction on the Property due to Grantee’s Development Activities to the extent such crop loss occurs outside the Exclusive Use Area described in Section 1.3(b)(i) and outside the width of the Access Roads as described in Section 1.3(d). Crop damages will be calculated by the following formula: Price x Yield x Percentage of Damage x Acreage = Crop Damages. Crop damage for alfalfa and other perennial crops will be calculated by multiply the foregoing formula times 3 (3 crop years). Prices for destroyed crops will be based on the average of the last previous March 1st and September 1st Chicago Board of Trade prices for that crop. Yield will be the average of the next previous two (2) years’ yields of the same crop as the destroyed crop, according to Owner’s records, as received from and certified by Owner, for the smallest parcel of land that includes the damaged area. If Owner does not have yield records available, the Owner will use FSA records for ___________County, _______________________ (or other

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commonly used yield information available for the area) for the smallest parcel of land which includes the damaged area. The parties hereto shall try in good faith to agree to the extent of damage and acreage affected. If the parties hereto cannot agree, they shall have the area measured and extent of damage assessed by an impartial party such as a crop insurance adjuster or extension agent. If there is reasonable evidence of compaction damages in a subsequent planting season resulting from the same initial event for which crop damages were paid, then Grantee shall also pay Owner for such compaction damages based upon the same formula used for the calculation of crop damages. Such compaction damages, where reasonably evident, shall be paid up to but no more than three (3) planting seasons following the initial event. Payment of crop damages and/or compaction damages shall be made within thirty (30) days after determining the extent of damage.

4.4 Non-Cash Benefits. Unless otherwise agreed by the parties hereto in writing, Owner shall not be entitled to any payment or other benefit accrued from the Wind Power Facilities, including, without limitation, Internal Revenue Code Section 45 “Production Tax Credits”, “Emission Reduction Credits”, “Renewable Energy Credits,” other tax or environmental credits, whether state, federal or local, any rights to electricity, environmental attributes or any other attributes, or any other cash or non-cash payment or benefit.

4.5 Ancillary Use Easements. Prior to the end of the Development Term, Grantee shall notify Owner if no Turbine will be located on the Property. In the event that such notification is given to Owner, but Grantee desires to locate Access Road(s) or Transmission Facilities on the Property, Owner shall be obligated to enter into an Easement(s) for such Access Roads and/or Transmission Facilities (the “Ancillary Use Easements”) substantially in the form attached as Exhibits D and/or E, as applicable. Upon execution of the Ancillary Use Easements, this Agreement shall terminate. Grantee shall however use commercially reasonable efforts to avoid using the Property or limit the amount of the Property subject to the Ancillary Use Easements.

5. Reservation of Certain Rights. Owner expressly reserves the right to use the Property for all other purposes not granted to Grantee under this Agreement, including farming, grazing, oil and gas exploration and production, mineral extraction, ranching and all agricultural uses, hunting and other recreational or residential uses, so long as such uses do not interfere with Grantee’s use of the Property for Wind Energy Purposes under this Agreement.

6. Construction and Removal of Wind Power Facilities.

6.1 Damage to Owner’s Property. Grantee shall not cause damage to the Property beyond what is reasonably necessary for the construction of the Wind Power Facilities and other Wind Energy Purposes. All vehicle and equipment traffic and parking shall be limited to the Construction Area as set forth on the Site Plan. In a reasonable time following the completion of construction of the Wind Power Facilities, Grantee shall remove all construction waste and debris remaining on the Property, and restore areas outside the Exclusive Use Areas and Access Roads to substantially the same physical condition which existed immediately

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before the construction of the Wind Power Facilities, including the replacement of arable top soil.

6.2 Underground Cabling and Tile Repair. Grantee shall install underground transmission cables on the Property at a depth of forty-eight (48) inches or greater (communication cables excepted from this requirement). In addition, within a reasonable time following the Commercial Operation Date, Grantee shall mark the location of underground transmission cables at field ends, property lines and roadways, and deliver as-built surveys of such improvements to Owner. Grantee agrees to repair, replace and/or reroute underground tile lines damaged during construction or operation of the Project within a reasonable period of time utilizing a qualified contractor with experience in tile repair.

6.3 Removal of Wind Power Facilities.

(a) Unless otherwise agreed by the parties hereto in writing, Owner shall have no ownership or other interest in any Wind Power Facilities installed on the Property, and Grantee shall have the express right, at any time and in its sole discretion, to remove one (1) or more previously installed Turbines or other Wind Power Facilities from the Property and have a corresponding reduction in Use Fees. Owner expressly waives any statutory or common law lien to which Owner might be entitled upon the expiration or early termination of the Term.

(b) Within six (6) months after the expiration or early termination of the Term, including, without limitation, pursuant to Section 16 or Section 20 hereof, or upon removal of less than all of the Turbines or other Wind Power Facilities pursuant to Section 6.3(a), Grantee shall remove all physical material pertaining to the Wind Power Facilities from the Property to a depth of at least forty-eight (48) inches beneath the soil surface, and restore the area formerly occupied by the Wind Power Facilities to substantially the same physical condition which existed immediately before the construction of the Wind Power Facilities, including the replacement of arable top soil and clay in a proportion consistent with the surrounding soil (the “Removal Obligations”). Owner shall grant Grantee all necessary or reasonably required easements and access rights (in addition to those constituting party of the Access Easements) to and from the Property in order for Grantee to perform its aforesaid Removal Obligations. Beginning on the Operating Term Use Fee Commencement Date, Grantee shall obtain and deliver to the Landowner Group a security instrument in the form of corporate security bonds, self bonds, collateral bonds, letters of credit, parent company guarantees, cash escrows or any other form of financial assurance mutually agreed to by the Landowner Group and Grantee securing performance of Grantee’s obligation to remove the Wind Power Facilities located on the Property (the “Removal Security”). The Removal Security shall be equal to one and one-half (1.5) times the estimated amount, if any, by which the cost of removing the Wind Power Facilities exceeds the salvage value of such Wind Power Facilities. Grantee shall re-evaluate the value of the Removal Security upon the request of the Landowner Group, but in no event more than once every five (5) years after the Operating Term Use Fee Commencement Date. Upon the issuance of the Removal Security to the Landowner Group and each re-evaluation of the value of the Removal Security, Grantee shall provide the Landowner Group a

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written summary of the estimated costs of removing the Wind Power Facilities and the salvage value of such Wind Power Facilities and, if applicable, the new amount of the Removal Security. The Grantee shall not be required to deliver the Removal Security to the Landowner Group if Grantee has provided decommissioning security, or similar assurance, to any federal, state or local governmental entity in connection with the development, construction or ownership of the Project, which security is intended to cover the costs of decommissioning the Wind Power Facilities located on the Property. Once in place, the Grantee shall keep the Removal Security, or similar financial assurance, in force throughout the term of this Agreement. Grantee shall continue to pay Turbine Site Use Fees consistent with Section 4.2(b)(i) until Grantee’s Removal Obligations under this section are complete.

6.4 Television and Radio Reception. In the event that Windpower Facilities cause perceivable interference with Owner’s reception of television or radio signals, Grantee shall take commercially reasonable efforts to mitigate such interference including but not limited to the addition of signal boosters at the point of reception, adjustment or enhancement of Owner’s television or radio antenna or the purchase and payment for a monthly subscription for basic satellite television service.

7. No Interference. Grantee shall have the exclusive right to convert to energy all of the wind resources on, up, over or across the Owner’s Property, meaning no buildings, structures or trees on the Owner’s Property shall exceed forty (40) feet in height, within a minimum setback of six hundred and fifty (650) feet, and no building structures or trees shall exceed one hundred (100) feet in height within one thousand three hundred (1300) feet from any Turbine. Trees, structures and improvements located on the Owner’s Property as of the Commencement Date shall be allowed to remain and Grantee may not require their removal. Grantee may, at no expense to Owner, construct and maintain security devices on the Property, which Grantee, in its sole and absolute discretion, deems appropriate and necessary for the protection of the Improvements, including, but not limited to, any type of fencing (including, without limitation, maintaining a security fence around any staging area) or other security safeguards. Owner shall, before beginning any trenching, digging or any other activity that could damage or interfere with any of the Windpower Facilities that are located or installed underground (including cables, wires and conduit), give Grantee at least three (3) days prior written notice of the time and location of such activity and permit a representative of Grantee to be present (although Grantee shall not be obligated to have a representative present) during such activity. Neither Owner nor any of its tenants, licensees, contractors, invitees, agents, assigns or anyone else obtaining rights from Owner shall interfere with, impair, delay or materially increase the cost of constructing, maintaining or operating any of the Wind Power Facilities (whether conducted on the Property or elsewhere) or the exercise of any of Grantee’s other rights hereunder.

8. Taxes.

8.1 Grantee’s Obligations. Grantee shall be liable only for any increase in the ad valorem real property taxes on the Property (“Taxes”) which are directly attributable to the

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installation of the Wind Power Facilities. Grantee shall not be liable for (a) Taxes attributable to, (i) the underlying value of the Property prior to any Development Activities of Grantee, (ii) any improvements installed by Owner or other Persons on the Property, or (b) for any increase in Taxes due to any other cause. Owner shall, after Owner receives the tax bill from the ___________ County Tax Collector, but no later than fifteen (15) days prior to the date such Taxes are due, submit such bill to Grantee for payment by Grantee directly to such taxing authority for Grantee’s portion thereof. The parties hereto agree to fully cooperate with each other to obtain any available refunds or abatements of Taxes. In addition, Grantee and Owner agree to make reasonable efforts to cause such taxing authority to issue a separate tax bill for any increase in Taxes which are directly attributable to the installation of the Wind Power Facilities on the Property.

8.2 Owner’s Obligations. Except as set forth in Section 8.1 above, Owner covenants and agrees to pay prior to delinquency all real and personal property and other taxes, general and special assessments, and other charges of every description levied or assessed against the Property.

8.3 Failure to Pay Taxes. Grantee’s or Owner’s failure to pay the taxes for which they are obligated hereunder prior to delinquency shall constitute a default hereunder, provided that Grantee receives the Tax bill from Owner in a timely manner consistent with Section 8.1. In the event of such a default, the non-defaulting party shall have the right, but not the obligation, to cure such default by payment of those Taxes which are due. If the Grantee is the defaulting party, Owner shall be entitled to add such payments to Use Fees due hereunder and such amount shall immediately become due and payable by Grantee, together with interest equal to Bank of America’s prime rate plus five percent (5%) and penalties. If the Owner is the defaulting party, Grantee shall be entitled to offset such payments against Use Fees due hereunder, together with interest plus penalties as calculated above.

8.4 Grantee’s Right to Contest Taxes. Grantee may contest the legal validity or amount of any such Taxes, assessments, or other charges for which it is responsible under this Agreement, and may institute such proceedings as it considers necessary, provided that Grantee shall bear all expenses in pursuing such contest or proceeding. Owner agrees to render to Grantee all reasonable assistance, at no cost or expense whatsoever to Owner, in contesting the validity or amount of any such Taxes, assessments or charges, including joining in the signing of any reasonable protests or pleadings which Grantee may reasonably deem advisable to file.

9. Grantee’s Representations, Warranties and Covenants. Grantee hereby represents, warrants and covenants as follows:

9.1 Insurance. Grantee shall maintain liability insurance insuring Grantee and Owner against loss caused by Grantee’s use of the Property under this Agreement, in an amount not less than Three Million Dollars ($3,000,000) of combined single limit liability coverage, and shall provide certificates of such insurance coverage to Owner prior to the commencement of construction of the Project on the Property; provided, however, Grantee’s failure to provide

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such certificates of insurance coverage shall not be an event of default under this Agreement. Owner shall be named as an additional insured on such policy of insurance.

9.2 Mechanic’s Liens. If any mechanic’s lien arising out of Grantee’s use of the Property pursuant to this Agreement shall be filed against the Property, Grantee shall (a) if Grantee wishes to contest any such lien, within sixty (60) days after it receives notice of filing of the lien, post a bond or provide such other security as reasonably requested by Owner in an amount equal to the lien amount, or (b) remove such lien from the Property pursuant to applicable law.

9.3 No Representation Regarding Wind Power Facilities. Owner acknowledges that (a) Grantee has made no representation or warranty as to the likelihood that Wind Power Facilities will be constructed on the Property, or, if constructed, that they will not be removed from the Property, and (b) any expression by Grantee to the Owner as to the expected number or type of Wind Power Facilities to be constructed on the Property, or the Turbine Site Use Fees to be derived by Owner therefrom, is and was purely an estimate based on the information available to Grantee at the time and is not a covenant or guarantee that any such construction will occur.

9.4 Grantee’s Authority. The Grantee has the unrestricted right and authority to execute this Agreement and to grant to Owner the rights granted hereunder. Each person signing this Agreement on behalf of Grantee is authorized to do so. When executed, this Agreement constitutes a valid and binding agreement enforceable against Grantee in accordance with its terms.

9.5 Conservation Programs. To the extent Grantee's installation or construction of

the Wind Power Facilities requires the removal of any of the Property from participation in the Conservation Reserve Program or similar program in which the Property was enrolled and qualified at the time Grantee's applicable installation or construction began on the Property, and Owner incurs any penalties or reimbursement obligations to the government agency administering such conservation program, Grantee agrees to reimburse Owner the amount of such penalties or pay any such amounts on behalf of Owner. Owner shall notify Grantee of any new areas of the Property that become qualified and enrolled in any such conservation program(s) after the Effective Date within five (5) days of such qualification and enrollment and shall also notify Grantee of any such penalties for which Grantee is responsible under this Section 9.5, together with an accounting and copies of the underlying documentation and billing and receipts within five (5) days after receipt of notice of such penalties.

10. Owner’s Representations, Warranties and Covenants. Owner hereby represents, warrants and covenants as follows:

10.1 Owner’s Authority. Owner is the sole fee simple owner of the Property and has the unrestricted right and authority to sign this Agreement and to grant Grantee the easements and other rights granted in this Agreement. This Agreement constitutes a valid and binding

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agreement enforceable against Owner in accordance with its terms. The Property is not subject to any leases, easements, rights of way, rights of possession or occupancy, or rights to farm the Property or any options or rights of first refusal relating thereto, covenants or restrictions, except as set forth on Exhibit F (said exceptions and the encumbrances set forth in Section 13 collectively called the “Permitted Encumbrances”) nor to any liens, mortgages, deeds of trust, or any other encumbrances or third party interests, except as set forth in Section 13. None of the Permitted Encumbrances (nor the exercise of any rights by any parties pursuant thereto) will interfere with Grantee’s use of the Property hereunder. Owner has not employed any broker or finder who would be entitled to receive any commission, finders’ fee or other consideration as a result of the execution of this Agreement.

10.2 Title Insurance. Owner shall cooperate with the title insurance company (“Title Company”), issuing title insurance insuring (a) Grantee’s easements in the Property and/or (b) any mortgage encumbering such easements, and shall assist Grantee in removing any matters of record that are not shown on Exhibit F and deliver such title affidavits and such other documents reasonably required by the Title Company. The cost of any such title insurance premiums shall be paid by Grantee.

10.3 Hazardous Substances. To Owner’s knowledge and belief, (a) there are no abandoned wells, solid waste disposal sites, or Hazardous Substances, located on the Property (b) the Property does not contain levels of petroleum or Hazardous Substances which require remediation, and (c) the Property is not subject to any judicial or administrative action, investigation or order under any applicable federal or state laws or regulations relating to Hazardous Substances. To Owner’s knowledge and belief, Owner has done nothing to contaminate the Property with Hazardous Substances. The Property does not, and, to the best of Owners’ knowledge, has never contained any underground or above ground storage tanks.

10.4 Negative Covenant. Owner shall not grant, convey, assign or provide any easement, license, permit, lease (including any Crop Lease) or other right for access across or which in any way encumbers Grantee’s use of the Property for Wind Energy Purposes. Notwithstanding the foregoing, Owner shall be permitted to grant, convey, assign or provide any easement, license, permit, lease or other right for access across or which encumbers Owner’s fee simple interest in the Property (all of the foregoing hereinafter called a “Grant"), provided (a) such Grant, including the exercise of any rights provided in the Grant and/or any documentation pursuant to which such Grant is effectuated (collectively, the “Grant Documents”), shall (i) be subject, subordinate and inferior to (A) the rights of Grantee and any Easement Mortgagee provided in this Agreement, and to (B) any mortgage held by any Easement Mortgagee and shall (ii) not in any manner interfere with or result in any diminution of the rights of Grantee or any Easement Mortgagee provided in this Agreement, and (b) all of the parties to such Grant, shall agree to the foregoing in writing, which writing may be included in the Grant Documents.

10.5 Litigation. No litigation is pending and, to Owner’s knowledge, no litigation or administrative actions are proposed, threatened, or anticipated with respect to any matter

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affecting the Property. If Owner learns of any litigation or administrative action proposed, threatened, or instituted with respect to the Property prior to or following the Commencement Date, Owner shall promptly deliver notice thereof to Grantee.

10.6 Compliance with Laws. To Owner’s knowledge, the Property is currently in full and complete compliance with all governmental laws and regulations, including any federal, state or local health or safety laws applicable to the Property. The Property fronts on and has direct and unobstructed access to a public road.

10.7 Mechanic’s Liens. If any mechanic’s liens arising out of Owner’s use of the Property shall be filed against the Property or the Wind Power Facilities, Owner shall (a) if Owner wishes to contest any such lien, within sixty (60) days after it receives notice of filing of the lien, provide a bond or such other security as Grantee may reasonably request, or (b) remove such lien from the Property pursuant to applicable law. In the event that Owner fails to remove any such lien or provide such a bond or security in accordance with this Section 10.7, Grantee shall have the right, but not the obligation, to remove such lien or post such bond or security, and Owner shall reimburse Grantee for the costs thereof promptly upon the receipt of written demand for such reimbursement. If Owner fails to reimburse Grantee, Grantee shall have the right to set-off any such reimbursement amounts due Grantee against any amounts owed by Grantee to Owner hereunder, including any Use Fees.

10.8 Conservation Reserve Program. Owner shall not, following the Commencement Date, propose any portions of the Exclusive Use Areas described in Section 1.3(b) nor the Access Roads described in Section 1.3(d) for the CRP.

10.9 Hunting.

(a) Owner shall not conduct, nor shall Owner permit any third parties to conduct, any hunting activities on Property during which the installation, construction or improvement of the Windpower Facilities is being undertaken on the Property or properties adjacent to the Property.

(b) From and after the Operating Term Use Fee Commencement Date,

Owner may permit hunting activities on the Property; provided, however, for the safety of Grantee’s employees, agents, contractors, and other invitees to the Property, prior to undertaking any such permitted hunting activities, Owner shall provide reasonable notification to Grantee, which notice shall be given either in writing or orally to a contact person to be specified by Grantee and shall specify the following: (i) the specific date(s) and time(s) on which Owner or Owner’s third party invitees will be hunting on the Property, (ii) the general location of the hunting activities, (iii) the number of hunters Owner will be allowing on the Property on such dates and at such times, (iv) the type(s) of game to be hunted, and (v) the type(s) of hunting weapon(s) to be used. In addition, Owner shall use reasonable efforts to obtain, for the benefit of Grantee, a fully executed indemnity and waiver of liability from third parties permitted to hunt on the Property, in the form attached hereto as Exhibit G.; provided,

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however, that if Owner is not able to obtain an executed indemnity and waiver of liability from any individual that is hunting on the Property, Grantee shall have the right to remove such individual from the Property to the extent Grantee determines that the hunting activities threaten the safety of Grantee or Grantee’s employees, agents, contractors, and other invitees to the Property.

(c) Grantee shall notify Owner of any scheduled maintenance of the Project

to occur during any hunting season. If any hunting activities contemplated by Owner or Owner’s invitees are scheduled to occur during any scheduled or unscheduled maintenance of the Project and Grantee believes that such hunting activities will endanger the safety of its employees, agents, contractors or other invitees, Grantee shall notify Owner of the area in which such maintenance activities are being conducted and Owner shall immediately cease all hunting activities in such area identified by Grantee and shall not permit any hunting activities in such area for the duration of such maintenance activities.

(d) Owner shall fully cooperate with and assist Grantee in enforcing the foregoing requirements, including (i) notifying each third party permitted to hunt on the Property of such requirements, and (ii) if any such third party fails or refuses to comply with such requirements, take all such actions reasonably necessary under the circumstances to cause such third party to immediately leave the Property., including notifying Grantee, and at the request of Grantee, lodging complaints with the local authorities and pursuing other legal remedies. Owner hereby acknowledges and agrees that Grantee shall have the right to (1) cause any third party who refuses to comply with the provisions of this Agreement to immediately leave the Property and (2) pursue any legal actions against such third party in the name of Owner.

11. Indemnification.

(a) Grantee shall indemnify, defend and hold harmless each Owner Indemnified Party from and against any and all Liabilities arising out of, relating to or incurred in connection with, or which may be asserted against an Owner Indemnified Party, or which an Owner Indemnified Party may incur or suffer as a result of, (i) the breach or default by the Grantee of any material covenant, representation or warranty made by the Grantee in this Agreement, (ii) any personal injury or damage to persons or the property of such Owner Indemnified Party, in each case to the extent caused by the negligence or willful misconduct of the Grantee or its Agents after the Commencement Date, (iii) the operation and maintenance of the Wind Power Facilities on the Property in such a manner as to create a nuisance to third parties or (iv) the presence or release of Hazardous Substances in, under, on or about the Property or any part thereof, which are brought or permitted to be brought onto the Property or any part thereof by the Grantee or its Agents; provided that any indemnity obligation set forth in this Section 11(a) shall not apply to the extent of any Liabilities caused by any negligent, reckless or willful act or omission on the part of an Owner Indemnified Party.

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(b) Owner shall indemnify, defend and hold harmless each Grantee indemnified Party from and against any and all Liabilities arising out of, relating to or incurred in connection with, or which may be asserted against a Grantee Indemnified Party, or which a Grantee Indemnified Party may incur or suffer as a result of (i) the breach or default by the Owner of any material covenant, representation or warranty made by the Owner in this Agreement, (ii) any personal injury or damage to persons or the property of such Grantee Indemnified Party, in each case to the extent caused by (A) the negligence or willful misconduct of the Owner , its Agents or Owner’s invitees on the Property after the Commencement Date or (B) the hunting activities of Owner, its Agents or Owner’s invitees on the Property after the Commencement Date, (iii) the presence or release of Hazardous Substances in, under, on or about the Property or any part thereof, which are brought or permitted to be brought onto the Property or any part thereof by the Owner, its shareholders, members, officers, directors, agents, trustees, representatives and employees or any thereof or (iv) any damage caused to the Wind Power Facilities that result from the negligent use or willful misconduct of the Property by Owner or any licensee, permittee or grantee of Owner; provided that any indemnity obligation set forth in this Section 11(b) shall not apply to the extent of any Liabilities caused by any negligent, reckless or willful act or omission on the part of a Grantee Indemnified Party.

12. Project Permitting and Zoning Contingency. Owner acknowledges that Grantee may, at its own expense, file applications with federal, state, and local governmental bodies or agencies for grant approvals, zoning changes, Federal Aviation Administration clearance, environmental permits, storm water permits, road permits, and grading, construction, building, operations and any other governmental permits, licenses and approvals (collectively, “Project Permitting and Zoning”). Owner acknowledges and agrees that it is a condition precedent to the payment of any Use Fees that Grantee satisfy itself in its sole and absolute discretion that it can obtain or has obtained the Project Permitting and Zoning. Owner agrees to cooperate and to execute all documents including, if applicable, any waivers or consents, and attend all meetings reasonably necessary to obtain the Project Permitting and Zoning for the Property. Owner hereby agrees to waive any and all setback requirements set forth in any applicable zoning or licensing ordinances, codes and/or other statutes, except that no Turbine shall be placed closer than two hundred (200) feet from the boundary of the Property or Adjacent Property and one thousand (1,000) feet from any residence on the Property or Adjacent Property, unless otherwise agreed to in writing by the parties hereto. For purposes of this Agreement, the distance from any property line, boundary or residence to any Turbine shall be measured from such property line, boundary, or in the case of a residence, the closest outer wall of such residence, to the center of the base of such Turbine. In addition, Owner covenants and agrees to support, and not to contest or oppose, Grantee’s intended or proposed use of the Property and any Adjacent Property in any proceeding or public hearing before any federal, state or local governmental entity. In the event Grantee fails to obtain the Project Permitting and Zoning, Grantee may terminate this Agreement by giving notice of such termination to Owner, whereupon this Agreement shall terminate and neither party hereto shall have any further obligation to the other party hereunder except as expressly set forth herein.

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13. Mortgagee Consent Contingency. To the extent that the Property is subject to a mortgage (“Fee Mortgage”) from a lending institution (the “Fee Mortgagee”), Owner hereby agrees that it shall, within ninety (90) days following the Commencement Date (“Lien Contingency Period”), deliver to Grantee a consent and non-disturbance agreement in a form reasonably satisfactory to Grantee and executed by the Fee Mortgagee, pursuant to which the Fee Mortgagee is subject to this Agreement. If Owner is unable to obtain a satisfactory agreement from the Fee Mortgagee, (a) Grantee may terminate this Agreement by giving ten (10) days’ prior notice of such termination to Owner, whereupon this Agreement shall terminate and neither party hereto shall have any further obligation to the other party hereunder except as expressly set forth herein, or (b) if Grantee elects not to terminate this Agreement, and in the event of Owner’s default under the Fee Mortgage, Grantee shall have the right, but not the obligation, to make payments in fulfillment of Owner’s obligations to the Fee Mortgagee and may offset the amount of such payments from Use Fees and any other amounts due to Owner under this Agreement.

14. Crop Farmer Consent Contingency. To the extent that the Property is farmed in whole or in part by a tenant farmer (“Crop Farmer”) whereby the Crop Farmer has the right to farm and/or harvest certain crops located on the Property subject to a lease, either oral or written (“Crop Lease”), Owner hereby agrees that it shall within the Lien Contingency Period, deliver to Grantee a Consent and Non-Disturbance Agreement (“Non-Disturbance Agreement”) executed by the existing Crop Farmer in a reasonable form provided by Grantee. If Owner is unable to obtain a satisfactory Non-Disturbance Agreement from the existing Crop Farmer, Grantee (i) may terminate this Agreement by giving ten (10) days’ prior notice of such termination to Owner, whereupon this Agreement shall terminate and neither party hereto shall have any further obligation to the other party hereunder except as expressly set forth herein, or (ii) shall, if Grantee elects not to terminate this Agreement, have the right, but not the obligation, to enter into an agreement with the existing Crop Farmer providing for the protection of Grantee’s rights and interests under this Agreement and in and to the Property.

15. Financing. Owner acknowledges that Grantee may, at its own expense, seek equity or debt financing of the Project, including any construction financing (“Financing”). In order to facilitate the Financing, Owner agrees to cooperate and to execute all documents including, if applicable, any title policy affidavits reasonably necessary to obtain the Financing for the Project, provided that the foregoing shall not require Owner to execute any documents that (a) result in Owner incurring liabilities or obligations not contemplated in this Agreement, or (b) encumber Owner’s fee interest in the Property, except to the extent contemplated in this Agreement.

16. Right to Terminate. Grantee shall, on or before the Operating Term Use Fee Commencement Date, notify the Owner if no Wind Power Facilities are proposed to be constructed on the Property. Upon such notice by Grantee, either party hereto may deliver to the other party written notice of its election to terminate this Agreement, whereupon this Agreement shall terminate and neither party hereto shall have any obligation to the other party hereunder except as expressly set forth herein.

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17. Easement Mortgages, Assignments, Licenses and Cure.

17.1 Right to Mortgage and Assign. Grantee and any Assignee (as defined below) shall have the right, without Owner’s prior consent or approval, at any time and from time to time, to mortgage, collaterally assign, or otherwise encumber and grant security interests in all or any part of its interest in this Agreement, the easements granted hereunder, the Grantee’s interest in the Property, or the Wind Power Facilities (holders of these various security interests are referred to as “Easement Mortgagees”) provided that the foregoing shall not entitle Grantee to encumber Owner’s fee interest in the Property, except as provided in this Agreement, and provided that any such assignment by Grantee shall not release Grantee from its obligations hereunder unless Grantee and Assignee expressly agree to such a release in writing. Grantee, any Assignee and any Easement Mortgagee which has succeeded to Grantee’s interests under this Agreement shall also have the right, without Owner’s prior consent or approval, at any time and from time to time, to sell, convey, assign, partially assign or grant licenses over the whole or any portion or portions of its interest in the Property for the uses permitted under this Agreement, or grant, easements, licenses or similar rights (however denominated) to one or more Persons (collectively, “Assignees”). Following any such sale, conveyance, assignment or license, the term “Grantee” shall be deemed to include each “Assignee” then holding Grantee’s interest in this Agreement or the Property, except that, to the extent that Grantee’s consent or approval is required hereunder, Owner shall only be required to obtain consent from the Grantee that is party to this Agreement. However, no Easement Mortgagee, or Assignee shall by virtue of Grantee’s conveyance to it acquire any greater interest in the Property than Grantee then has under this Agreement. Whenever Grantee or any Easement Mortgagee has mortgaged or assigned an interest in this Agreement and/or the Property pursuant to this Section 17.1, or has conveyed a license or other interest in the Property, it will give notice of the mortgage, assignment or conveyance (including the address of the Easement Mortgagee or Assignee for notice purposes) to Owner, provided that failure to give such notice shall not constitute a default under this Agreement. Upon the assignment of Grantee’s interest in this Agreement to an Assignee or upon the sale or conveyance of Grantee’s interest in this Agreement, Grantee shall be automatically and fully released from all of its obligations, responsibilities and liabilities to Owner hereunder, arising after the date of such assignment, sale or conveyance.

17.2 Mortgagee Assignee Obligations. Any Easement Mortgagee or Assignee which does not directly hold an interest in this Agreement, or which holds an interest, lien or security interest in this Agreement solely for security purposes, shall have no obligation or liability under this Agreement prior to the time such Easement Mortgagee or Assignee directly holds an interest in this Agreement, or succeeds to absolute title to such interest, or to this Agreement. Any such Easement Mortgagee or Assignee shall be liable to perform obligations under this Agreement only for and during the period it directly holds such interest or absolute title.

17.3 Certificates, etc. Within fifteen (15) Business Days after written request therefor, Owner shall execute such estoppel certificates (certifying as to such truthful matters as Grantee, Assignees or Easement Mortgagees or any prospective and/or subsequent

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purchaser or transferee may reasonably request, including, without limitation, that no default then exists under this Agreement, if such be the case, and that this Agreement remains in full force and effect), and shall further execute consents to assignment, non-disturbance agreements and other documents as Grantee or any Easement Mortgagee or Assignee may request and rely upon as part of a purchase or transfer of all or part of Grantee’s interest in the Property or Wind Power Facilities.

18. Mortgagee Protection. Any Easement Mortgagee shall, for so long as its mortgage or other security interest is in existence, be entitled to the following protections which shall be in addition to those granted elsewhere in this Agreement.

18.1 Easement Mortgagee’s Right to Acquire and Right to Assign. An Easement Mortgagee shall have the absolute right (without having to obtain Owner’s consent): (a) to assign its security interest, (b) to enforce its lien and acquire title to the Grantee’s easement rights under this Agreement by any lawful means; (c) to operate the Property or any portion thereof in accordance with the terms of this Agreement and to perform all obligations to be performed by Grantee under this Agreement, or to cause a receiver to be appointed to do so; (d) to acquire such easement rights by foreclosure or by an assignment in lieu of foreclosure and thereafter to assign or transfer such easement rights to a third party; and (e) to exercise (or require Grantee to exercise at Easement Mortgagee’s request) the Renewal Option.

18.2 Right to Cure Defaults/Notice of Defaults/Assignee’s Right to New Agreement. To prevent termination of this Agreement or any partial interest in this Agreement, each Easement Mortgagee shall have the right, but not the obligation, at any time prior to termination of this Agreement, to perform any act necessary to prevent or cure any Grantee default and to prevent the termination of this Agreement or any partial interest in this Agreement. As a precondition to exercising any rights or remedies as a result of any alleged default by Grantee, Owner shall give written notice of such default to each Easement Mortgagee for which Owner has received notice pursuant to Section 18.1, concurrently with delivery of notice to Grantee, specifying in detail the alleged event of default and the required remedy. The cure period for each Easement Mortgagee shall begin to run at the end of the cure period given to Grantee in this Agreement and each such Easement Mortgagee shall have the same amount of time to cure the default as to Grantee’s interest in this Agreement as is given to Grantee. Any right of Owner to terminate this Agreement shall be subject to such Easement Mortgagee’s right to cure and any extensions thereof provided for herein.

18.3 Extended Cure Period.

(a) If any default by Grantee under this Agreement cannot be cured without the Easement Mortgagee obtaining possession of all or part of the Property and/or all or part of the Wind Power Facilities and/or all or part of Grantee’s interest in this Agreement, then any such default shall be deemed remedied if: (i) within sixty (60) days after receiving notice from Owner as set forth in Section 18.2, either Easement Mortgagee or its Assignee shall have acquired possession of all or part of the Property and/or all or part of the Wind Power Facilities and/or all or part of such interest in this Agreement, or shall have commenced appropriate

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judicial or nonjudicial proceedings to obtain the same; and (ii) the Easement Mortgagee or its Assignee, as the case may be, shall be in the process of diligently prosecuting any such proceedings to completion; and (iii) after gaining possession of all or part of the Property and/or all or part of the Wind Power Facilities and/or all or part of such interest in this Agreement, the Easement Mortgagee or its Assignee performs all other obligations as and when the same are due in accordance with the terms of this Agreement, but only for the period attributable to its possession of the Property. If an Easement Mortgagee or its Assignee is prohibited by any process or injunction issued by any court or by reason of any action by any court having jurisdiction over any bankruptcy or insolvency proceeding involving Grantee or any defaulting Assignee, as the case may be, from commencing or prosecuting the proceedings described above, the sixty (60) day period specified above for commencing such proceeding shall be extended for the period of such prohibition.

(b) Following acquisition of Grantee’s easement rights by the Easement Mortgagee, its Assignee or designee as a result of either foreclosure or acceptance of an assignment in lieu of foreclosure, or by a purchaser at a foreclosure sale (all of which are included in the term “Assignee”), this Agreement shall continue in full force and effect and the Easement Mortgagee or its Assignee shall, as promptly as reasonably possible, commence the cure of all defaults under this Agreement and thereafter diligently process such cure to completion, whereupon Owner’s right to terminate this Agreement based upon such defaults shall be deemed waived; provided, however, that the Easement Mortgagee or such party acquiring title to Grantee’s easement rights under this Agreement shall not be required to cure those defaults which are not reasonably susceptible of being cured or performed by such party (“Non-curable Defaults”). Non-curable Defaults shall be deemed waived by Owner upon completion of foreclosure proceedings or acquisition of Grantee’s interest in this Agreement by such party.

(c) Any Easement Mortgagee or other party who acquires Grantee’s rights under this Agreement, pursuant to foreclosure or assignment in lieu of foreclosure shall not be liable to perform the obligations imposed on Grantee by this Agreement incurred or accruing after such party no longer has ownership of the rights under this Agreement or possession of the Property.

(d) Neither the bankruptcy nor the insolvency of Grantee shall be grounds for terminating this Agreement as long as all Use Fees and all other monetary charges payable by Grantee under this Agreement are paid by the Easement Mortgagee in accordance with the terms of this Agreement.

18.4 New Agreement.

(a) If this Agreement terminates for any reason, including, without limitation, because of Grantee’s default or if the rights granted under this Agreement are foreclosed, or if this Agreement is rejected or disaffirmed pursuant to bankruptcy law or other law affecting creditor’s rights and, within ninety (90) days after such event, Grantee or any Easement Mortgagee or Assignee shall have arranged to the reasonable satisfaction of Owner

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for the payment of all fees or other charges due and payable to Owner by Grantee as of the date of such event, then Owner shall execute and deliver to such Easement Mortgagee or Assignee or to a designee of one of those parties, as the case may be, a new easement agreement over the Property which (i) shall be for a term equal to the remainder of the Term (or the Renewal Term, if applicable) before giving effect to such rejection or termination; (ii) shall contain the same covenants, agreements, terms, provisions and limitations as this Agreement (except for any requirements that have been fulfilled by Grantee or any Easement Mortgagee or Assignee prior to rejection or termination of this Agreement); and (iii) shall include that portion of the Wind Power Facilities in which Grantee or such other Easement Mortgagee or Assignee, as applicable, had an interest on the date of rejection or termination.

(b) After the termination, rejection or disaffirmation of this Agreement and during the period thereafter during which any Easement Mortgagee or Assignee shall be entitled to enter into a new easement agreement over the Property, Owner will not terminate any assignment, partial assignment or license of Grantee's rights under this Agreement previously made by Grantee, or the rights of any Assignee thereof, unless such Assignee shall be in default under this Agreement.

(c) If more than one Easement Mortgagee makes a written request for a new easement agreement pursuant to this provision, the new easement agreement shall be delivered to the Easement Mortgagee requesting such new easement agreement whose mortgage is prior in lien, and the written request of any other Easement Mortgagee whose lien is subordinate shall be void and of no further force or effect.

(d) The provisions of this Section 18.4 shall survive the termination, rejection or disaffirmation of this Agreement and shall continue in full force and effect thereafter to the same extent as if this Section 18.4 were a separate and independent contract made by Owner, Grantee and each Easement Mortgagee, and, from the effective date of such termination, rejection or disaffirmation of this Agreement to the date of execution and delivery of such new easement agreement, such Easement Mortgagee may use and enjoy said Property without hindrance by Owner or any Person claiming by, through or under Owner and such Easement Mortgagee shall pay Use Fees in accordance with the terms of this Agreement; provided that all of the conditions for a new easement agreement as set forth above are complied with.

18.5 Mortgagee’s Consent to Amendment, Termination or Surrender. Notwithstanding any provision of this Agreement to the contrary, the parties hereto agree that so long as there exists an unpaid Easement Mortgagee, this Agreement shall not be terminated (unless such termination is the result of an uncured event of default, provided all applicable (a) notices provided herein have been delivered to Grantee and Easement Mortgagees, and (b) grace and cure periods provided herein in favor of Grantee and Easement Mortgagees have expired), modified or amended, and Owner shall not accept a surrender of all or any part of the Property or a cancellation or release of this Agreement from Grantee, prior to expiration of the Term (or Renewal Term, if applicable) without the prior written consent of the Easement Mortgagee.

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18.6 No Merger. There shall be no merger of this Agreement, or of the easement rights created by this Agreement, with the fee estate in the Property by reason of the fact that this Agreement or the easement rights or any interest in the easement rights may be held, directly or indirectly, by or for the account of any Person who shall own the fee estate or any interest therein, and no such merger shall occur unless and until all Persons at the time having an interest in the fee estate in the Property, and all Persons (including each Easement Mortgagee) having an interest in this Agreement or in the estate of Owner and Grantee shall join in a written instrument effecting such merger and shall duly record the same.

18.7 Fee Mortgages Subordinate to Agreement. From and after the Commencement Date, any mortgage, deed of trust or other monetary lien placed on the Property by Owner, or permitted by Owner to be placed or to remain on Property, shall be subject and subordinate to this Agreement, to any mortgage then in existence on the Grantee’s easement rights as permitted by this Agreement, to Grantee’s right to encumber such easement rights, and to any and all documents executed or to be executed by Owner in connection with Grantee’s Development Activities with respect to all or any part of the Property. Owner agrees to cause any monetary liens placed on the Property by it in the future to incorporate the conditions of this Section 18.7.

18.8 Damage/Condemnation. The disposition of any condemnation award and/or casualty insurance proceeds shall be governed by the terms of any first priority mortgage encumbering Grantee’s interest in the Property, this Agreement or the Wind Power Facilities. Subject to the foregoing, all sums awarded, including damages and interest in connection with any condemnation of the Property, shall be divided as follows and in order of priority listed: (a) Grantee shall be entitled to receive payment for any cost or loss that Grantee may sustain in the taking, removal and relocation of the Improvements; (b) Owner and Grantee shall be entitled to receive payment for its respective anticipated or lost revenues under this Agreement, allocated on a pro rata basis based on their respective anticipated or lost revenues; (c) Owner shall be entitled to receive payment for the taking of the real property constituting the Property (including any “bonus value” in this Agreement); and (d) all remaining amounts of the award shall be paid to owner or Grantee consistent with state law.

18.9 Further Amendments. At Grantee’s request, Owner shall amend this Agreement to include any provision which may reasonably be requested by a proposed Easement Mortgagee; provided, however, that such amendment does not materially impair any of Owner’s rights under this Agreement or materially increase the burdens or obligations of Owner under this Agreement. Upon the request of any Easement Mortgagee, Owner shall execute any additional instruments reasonably required to evidence such Easement Mortgagee’s rights under this Agreement.

18.10 Beneficiary. Each Easement Mortgagee is a third party benificairy of this Agreement and the provisions of Articles 18 and 19 of this Agreement are for the express benefit of and shall be enforceable by each Easement Mortgagee as if it were a party named in this Agreement.

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19. Default and Termination.

19.1 Owner’s Right to Terminate. Subject to the provisions of Sections 18.2 and 18.3, Owner shall have the right to terminate this Agreement following Grantee’s default hereunder if Owner simultaneously notifies Grantee and all Easement Mortgagees in writing of the default, which notice sets forth in reasonable detail the facts pertaining to the default and (a) a material default in the payment by Grantee of undisputed amounts Use Fees owed to Owner under this Agreement shall have occurred and remains uncured for ten (10) Business Days after such written notice to Grantee, it being understood that any termination rights with respect to such payment default shall only apply as to such part of the Property that the default under this clause (a) hereof affects, or (b) with respect to all other material defaults not described in clause (a) hereof, the default shall not have been remedied within thirty (30) days after Grantee receives such written notice or, if such default is not reasonably capable of being cured within thirty (30) days, if Grantee shall not have commenced to cure the same within such 30-day period and thereafter diligently prosecute the same to completion. Owner shall not terminate this Agreement by reason of the nonpayment of disputed amounts of Use Fees by Grantee.

19.2 Effect of Termination. Upon full or partial termination of this Agreement, whether as to the entire Property or only as to part, Grantee shall as soon as reasonably practicable thereafter, remove all Wind Power Facilities from the Property or portion as to which this Agreement was terminated in compliance with its Removal Obligations, and Owner shall grant Grantee all necessary or reasonably required Access Easements and other rights of ingress and egress to and from the Property in order for Grantee to perform its Removal Obligations. If Grantee fails to remove such Wind Power Facilities within twelve (12) months of full or partial termination of this Agreement, Owner may do so, in which case Grantee shall reimburse Owner for reasonable costs of removal (less salvage) incurred by Owner.

20. Surrender by Grantee.

20.1 Notwithstanding any other provisions of this Agreement, but subject to the requirements of Section 6.3 and to the rights of any Easement Mortgagee, and provided Grantee is then in compliance with all provisions of this Agreement, Grantee shall have the right at any time during the term of this Agreement to quitclaim and surrender to Owner all of Grantee’s right, title and interest in and to the Property by executing and delivering to Owner or placing on record a quitclaim deed and surrendering to Owner all of the Property and, provided Owner is not in default of any of its obligations under this Agreement, by paying to Owner on or before the effective date of such termination all Use Fees and other amounts due to Owner accruing to the time of surrender. Upon such surrender this Agreement shall terminate and neither party hereto shall have any further obligation to the other party hereunder except as expressly set forth herein.

20.2 Notwithstanding any other provisions of this Agreement, but subject to the requirements of Section 6.3 and to the rights of any Easement Mortgagee, and provided Grantee is then in compliance with all provisions of this Agreement, Grantee shall have the

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right at any time during the term of this Agreement to terminate this Agreement upon thirty (30) days' written notice to Owner.

21. Miscellaneous.

21.1 Force Majeure. If performance of this Agreement or of any obligation hereunder is prevented or substantially restricted or interfered with by reason of an event of “Force Majeure” (as defined below), the affected party, upon giving notice to the other party, shall be excused from such performance to the extent of and for the duration of such prevention, restriction or interference. The affected party shall use its reasonable efforts to avoid or remove such causes of nonperformance and shall continue performance whenever such causes are removed. “Force Majeure” means fire, earthquake, flood, tornado, or other acts of God and natural disasters; strikes or labor disputes; war, acts of terrorism, civil strife or other violence; any law, order, proclamation, regulation, ordinance, action, inaction, demand or requirement of any government agency, court or utility; or other act or condition beyond the control of a party. Notwithstanding the foregoing, to the extent that Grantee receives payment under a policy of insurance which is directly allocable to cover Use Fees due hereunder, such amount shall be paid over to Owner in accordance with Article 4 of this Agreement.

21.2 Successors and Assigns. This Agreement shall burden the Property and shall run with the land. The benefits of the easements granted hereunder are easements in gross rather than easements appurtenant. This Agreement shall inure to the benefit of and be binding upon Owner and Grantee, their heirs, successors and assigns (including each Assignee). Owner agrees that the rights of Grantee under this Agreement shall extend to Agents of Lessee. Grantee shall have the right to assign or convey all or any portion of this Agreement, including the Turbine Easements, Access Easements, Temporary Easements and Transmission Easements to any Person on an exclusive or nonexclusive basis without the consent of Owner. In the event of such assignment, Grantee shall notify Owner consistent with the provisions set forth in Section 21.4 below. Grantee shall have the right assign its rights hereunder relating to the construction, operation, repair and/or maintenance of any portion of the Wind Power Facilities.

21.3 Memorandum. Owner and Grantee shall execute in recordable form, and Grantee shall then have the right to record in the Official Records of ________ County, _______________________, a memorandum of this Agreement in the form attached hereto as Exhibit H. Any expenses incurred in the preparation, execution or recording of this memorandum shall be paid for by Grantee.

21.4 Notices. All notices or other communications required or permitted, shall be in writing and, including payments to Owner, shall be deemed given or made five (5) days after deposit in the United States mail, first class, postage prepaid and certified, or two (2) days after deposit with an overnight carrier (including FedEx or UPS):

If to Owner:

________________________

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If to Grantee: _______________________

if to any Assignee:

At the address indicated in the notice to Owner provided under Article 18, above

If to any Easement Mortgagee:

At the address indicated in the notice to Owner provided above

or, if none, at the address in the recorded instrument evidencing its Easement Mortgage

Any party may change its address for purposes of this Section 21.4 by giving written notice of such change to the other parties in the manner provided in this Section 21.4. Notices given before actual receipt of notice of change shall not be invalidated by the change. Grantee shall, as and when available, provide Owner with updated information regarding the Grantee party that Owner may contact for information concerning the Project.

21.5 Entire Agreement/Amendments. This Agreement constitutes the entire agreement between Owner and Grantee respecting its subject matter and it replaces and supersedes any prior agreements, including, without limitation, the Cooperation Agreement. Any agreement, understanding or representation respecting the Property, this Agreement, or any other matter referenced herein not expressly set forth in this Agreement, or a subsequent writing signed by both parties, is null and void. This Agreement shall not be modified or amended except in writing signed by both parties or their lawful successors in interest. Provided that no material default in the performance of Grantee’s obligations under this Agreement shall have occurred and remain uncured, Owner shall cooperate with Grantee in amending this Agreement from time to time to include any provision that may be reasonably requested by Grantee or any Easement Mortgagee or Assignee for the purpose of implementing the provisions contained in this Agreement or for the purpose of preserving the security interest of any Easement Mortgagee or Assignee, provided, however, that such amendment does not materially impair any of Owner’s rights under this Agreement or materially increase the burdens or obligations of Owner under this Agreement.

21.6 Legal Matters. This Agreement shall be governed by and interpreted in accordance with the laws of the State of _______________________. The parties hereto agree to first attempt to settle any dispute arising out of or in connection with this Agreement by good-faith negotiation. If the parties hereto are unable to resolve amicably any dispute arising out of or in connection with this Agreement, either party shall be entitled to bring a cause of action in a court of competent jurisdiction and exercise any and all remedies available to it

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hereunder, at law or in equity, which remedies shall be cumulative. Each party hereto waives all right to trial by jury and specifically agrees that trial of suits or causes of action arising out of this Agreement shall be to the applicable court. Each party hereto acknowledges that it was represented by counsel in connection with the preparation, execution and delivery of this Agreement and that such party’s counsel reviewed and participated in the revision of this Agreement and all Exhibits hereto. The parties hereto agree that any rule of construction to the effect that ambiguities are to be resolved in favor of either party shall not be employed in the interpretation of this Agreement, and is hereby waived.

21.7 Partial Invalidity. Should any provision of this Agreement be held, in a final and non-appealable decision by a court of competent jurisdiction, to be either invalid, void or unenforceable, the remaining provisions hereof shall remain in full force and effect, unimpaired by the holding. Notwithstanding any other provision of this Agreement, the parties agree that in no event shall the Term (or the Renewal Term, if applicable) or the term of any easement granted hereunder be for longer periods than the longest periods therefor permitted by applicable law.

21.8 Quiet Enjoyment. As long as Grantee observes the terms and conditions of this Agreement, within applicable cure and grace periods, it shall peaceably hold and enjoy the Property as provided herein, and any and all rights granted by this Agreement for its entire term without hindrance or interruption by Owner or any other Person lawfully or equitably claiming by, through or under Owner, except as expressly provided in this Agreement.

21.9 Further Assurances. The parties hereto shall at all times hereafter execute any documents and do any further acts that may be necessary or desirable to carry out the purposes of this Agreement.

21.10 Confidentiality. Owner and Grantee each agree to keep confidential (A) the terms and provisions of this Agreement and (B) all Confidential Information. The parties will grant access to the Confidential Information only to (a) their respective Affiliates, and to its and their respective Agents whose access is necessary to fulfill the terms of this Agreement, and (b) potential investors, lenders and developers in or of the Wind Power Facilities, the Owner or an Affiliate of the Owner (including their respective advisors, consultants contractors and other designees), who shall be bound by confidentiality arrangements substantially similar to this Section 21.10, which arrangements restrict disclosure of the Confidential Information unless such Confidential Information (i) is or becomes publicly known through no act of the receiving party, (ii) is approved for release by written authorization of the disclosing party, (iii) is required to be disclosed by the receiving party pursuant to legal requirements applicable to it (e.g., SEC disclosure obligations) or a legal process (so long as the receiving party uses commercially reasonable efforts to avoid disclosure of such Confidential Information, and prior to furnishing such Confidential Information, the receiving party notifies the disclosing party and gives the disclosing party the opportunity to object to the disclosure and/or to seek a protective order), or (iv) has been rightfully furnished to the receiving party without any restriction on use or disclosure and not in violation of the rights of the other party (“Acceptable Confidentiality

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Arrangements”). Notwithstanding the foregoing, Owner or any Affiliate of Owner may also use Confidential Information of Grantee for the operation, maintenance and servicing of the Wind Power Facilities, provided that Owner makes any third party with which such Confidential Information is shared subject to Acceptable Confidentiality Arrangements. Each party shall be liable for the disclosure of Confidential Information by any of its respective Affiliates or its and their respective Agents. In addition, the parties shall have no obligation with respect to any Confidential Information which (w) is or becomes publicly known through no act of the receiving party, (x) is approved for release by written authorization of the disclosing party, (y) is required to be disclosed by the receiving party pursuant to legal requirements applicable to it (e.g., SEC disclosure obligations) or a legal process (so long as the receiving party uses commercially reasonable efforts to avoid disclosure of such Confidential Information, and prior to furnishing such Confidential Information, the receiving party notifies the disclosing party and gives the disclosing party the opportunity to object to the disclosure and/or to seek a protective order), or (z) has been rightfully furnished to the receiving party without any restriction on use or disclosure and not in violation of the rights of the other party. Nothing in this Agreement shall bar the right of either party to seek and obtain from any court injunctive relief against conduct or threatened conduct which violates this Section 21.10.

21.11 Counterparts. This Agreement may be executed with counterpart signature pages and in duplicate originals, each of which shall be deemed an original, and all of which shall collectively constitute a single instrument.

21.12 Adjustments to Site Plan and As-Built Drawings. Owner and Grantee acknowledge that as of the Commencement Date, subject to the limitations set forth in Section 2, the proposed location of Grantee’s Wind Power Facilities, Transmission Facilities and Access Roads are subject to change based on the final design and actual construction of such Improvements. Owner and Grantee agree that, following construction completion of the Wind Power Facilities, Transmission Facilities, Access Roads and other related Improvements, the parties hereto shall, immediately upon the request from a party, execute an amendment to the Site Plan and other related exhibits (and, if requested, an amendment to any recorded memorandum of this Agreement), to reflect the exact location of the Property subject to this Agreement and the easements granted under this Agreement. Grantee agrees to provide Owner a final “as-built” surveyed drawing depicting the final location of the Wind Power Facilities.

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the Commencement Date set forth above:

Grantee: Owner:

By: __________________________ By: __________________________ Name: Name: Title: Title:

A-1

EXHIBIT A

DEFINITIONS

“Acceptable Confidentiality Arrangements” has the meaning set forth in Section 21.10.

“Access Easements” has the meaning set forth in Section 1.3(d).

“Access Rights” has the meaning set forth in Section 1.3(a).

“Access Roads” has the meaning set forth in Section 1.3(d).

“Adjacent Property” means any real property that is located adjacent to or near the Property.

“Affiliate” means any Person, directly or indirectly, in control of, controlled by, or under common control with, either Owner or Grantee, respectively. A Person shall be deemed to control another Person if such Person possesses, directly or indirectly, the power to direct or cause the direction of the management and policies of the other Person, whether through the ownership of voting securities, by contract or otherwise. For the purposes of Section 21.10, “Affiliates” includes, with respect to Owner, Owner’s trustees, contractors, subcontractors, Crop Farmers, lessees, licensees, permittees, Fee Mortgagees, lenders, attorneys, accountants, other personal financial advisors and other related parties.

“Agents” means, with respect to a party, the shareholders, members, officers, directors, agents, trustees, representatives and employees of such party.

“Agreement” means this Wind Energy Easement Agreement, as amended, modified or supplemented from time to time pursuant to the terms hereof.

“Annual Adjustment” has the meaning set forth in Section 4.2(b)(i).

“Assignees” has the meaning set forth in Section 17.1.

“Business Day” means a day of the year that is not a Saturday, a Sunday or a day on which banks are required to close in the State of _______________________.

“Commencement Date” has the meaning set forth in the introductory paragraph.

“Commercial Operation Date” shall (a) in the event that a power purchase agreement with respect to the Project shall be in effect on the Operating Term Use Fee Commencement Date and such term is so defined therein, have the meaning set forth in such power purchase agreement, and (b) in the event clause (a) shall not apply, mean that date on which all of the Turbines forming part of the Project (whether located on the Property, Adjacent Property or elsewhere) shall have been constructed, tested and interconnected with the electric

A-2

transmission system, and all of the Wind Power Facilities forming part of the Project are staffed and operational and capable of providing power to the electric transmission system, as such Commercial Operation Date shall be identified in a written notice provided by Grantee to Owner.

“Confidential Information” means information supplied by either party to the other hereunder or in connection herewith including, but not limited to, any documentation or information (i) which is marked as “proprietary” or “confidential,” (ii) which is supplied orally with a contemporaneous confidential designation, or (iii) which is known by the receiving party to be confidential or proprietary information or documentation of the disclosing party.

“Construction Area” has the meaning set forth in Section 2.

“Cooperation Agreement” has the meaning set forth in Recital B.

“Crop Farmer” means all parties to any Crop Lease, other than Owner, including any party named in Section 15.

“Crop Lease” means all agreements, whether recorded, unrecorded, written or unwritten, presently existing or hereafter entered into that pertain to the right to farm and/or plant and harvest certain crops located on the Property, including, without limitation, so called, “cash rent” leases and “shared crop” leases.

“CRP” means the United States Department of Agriculture Farm Service Agency’s Conservation Reserve Program.

“Development Activities” has the meaning set forth in Section 1.2.

“Development Term” has the meaning set forth in Section 3.2.

“Development Term Use Fees” means the payments to be made by Grantee to Owner as set forth in Article 4.

“Easement Mortgagees” has the meaning set forth in Section 17.1.

“Exclusive Use Area” has the meaning set forth in Section 1.3(b).

“Fee Mortgage” has the meaning set forth in Section 13.

“Fee Mortgagee” has the meaning set forth in Section 13.

“Financing” has the meaning set forth in Section 15.

“Force Majeure” has the meaning set forth in Section 21.1.

“Grant” has the meaning set forth in Section 10.4.

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“Grant Documents” has the meaning set forth in Section 10.4.

“Grantee” has the meaning set forth in the introductory paragraph, and such entity’s permitted successors and assigns.

“Grantee Indemnified Party” means the Grantee and its Agents.

“Hazardous Substances” means, for purposes of this Agreement, any flammable items, explosives, radioactive materials, hazardous or toxic substances, materials, items or waste or related materials, including any substances, materials, items or waste defined as or included in the definition of the terms “hazardous substances,” “hazardous wastes,” “infectious wastes” or “toxic substances” now or subsequently regulated under any present or future law.

“Improvements” means all facilities, structures, equipment, machinery, materials and property of every kind and character which is constructed, installed and/or placed on, above or under the Property by or on behalf of Grantee.

“Landowner Group” means the group of landowners who have signed easements, rights-of-way or other real property use agreements with Grantee that provide Grantee rights to use real property in connection with the Project and under which Grantee has Removal Obligations and the obligation to provide Removal Security.

“Liabilities” means all liabilities, claims, demands, actions, causes of action, counterclaims, suits, injunctive proceedings, administrative actions, investigations, judgments, losses, damages, expenses and other obligations.

“Lien Contingency Period” has the meaning set forth in Section 13.

“MW” has the meaning set forth in Section 4.2(b)(i).

“Non-curable Defaults” has the meaning set forth in Section 18.3(b).

“Non-Disturbance Agreement” has the meaning set forth in Section 14.

“Operating Term” has the meaning set forth in Section 3.3.

“Operating Term Use Fees” has the meaning set forth in Section 4.2(b).

“Operating Term Use Fee Commencement Date” has the meaning set forth in Section 4.2(a).

“Owner” has the meaning set forth in the introductory paragraph, and [its/his/her/their] permitted successors and assigns.

“Owner Indemnified Party” means the Owner, its shareholders, members, officers, directors, agents, trustees, lenders, Easement Mortgagees, representatives and employees.

“Permitted Encumbrances” has the meaning set forth in Section 10.1.

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“Person” means any individual, corporation, partnership, joint venture, association, joint stock company, trust, limited liability company, unincorporated organization, governmental authority or any other form of entity.

“Power Purchase Agreement” means the any power purchase agreement under which Grantee sells power produced by the Project.

“Project” means a combined wind energy facility in the ___________, _______________________ area.

“Project Permitting and Zoning” has the meaning set forth in Section 12.

“Property” has the meaning set forth in Section 1.1.

“Removal Date” means the date of physical removal of the Wind Power Facilities pursuant to Section 6.3 of this Agreement.

“Removal Obligations” has the meaning set forth in Section 6.3(b).

“Removal Security” has the meaning set forth in Section 6.3(b).

“Renewal Option” has the meaning set forth in Section 3.3.

“Renewal Term” has the meaning set forth in Section 3.3.

“Repowering” has the meaning set forth in Section 1.2(c).

“Site Plan” has the meaning set forth in Section 2.

“Taxes” has the meaning set forth in Section 8.1.

“Temporary Easements” has the meaning set forth in Section 1.3(e).

“Term” has the meaning set forth in Section 3.1.

“Title Company” has the meaning set forth in Section 10.2.

“Transmission Easements” has the meaning set forth in Section 1.3(c).

“Transmission Facilities” means (A) underground wires and cables, for the transmission of electrical energy and/or for communication purposes, and all necessary and proper foundations, footings, and other appliances and fixtures for use in connection with said wires and cables on, along and in the Property; and (B) one or more step-up transformers, junction boxes or any other equipment that may be a necessary component of a power collection system for Wind Energy Purposes together with the appropriate rights of way, on, along and in the Property (said towers, wires, cables, facilities and rights of way are herein collectively called the “Transmission Facilities”). “Transmission Facilities” shall include any electric transmission

A-5

or distribution systems and electric transmission, interconnection and switching facilities owned and/or operated by a third party.

“Turbine” means any machine designed for the generation of electric energy from wind power, including, without limitation, the associated towers, support structure, guy wires, braces and directly related equipment.

“Turbine Easements” has the meaning set forth in Section 1.3(b).

“Turbine Site Use Fees” has the meaning set forth in Section 4.2(b)(i).

“Use Fees” means the payments to be made by Grantee to Owner as set forth in Article 4.

“Wind Energy Purposes” has the meaning set forth in Section 1.2.

“Wind Power Facilities” has the meaning set forth in Section 1.2(b).

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THE CENTENNIAL MARKET STREET CENTER DECLARATION OF COVENANTS, CONDITIONS AND RESTRICTIONS AND RECIPROCAL EASEMENT AGREEMENT A Subdivision of Airspace

THIS DECLARATION AND RECIPROCAL EASEMENT AGREEMENT (“Center

Declaration”), made as of ________________________________, 20___ by ABC Entertainment Partners LP, a XXXXXXXXX Limited Partnership, hereinafter referred to as the "Declarant," is made with reference to the following facts:

A. Declarant is the owner of that certain real property located in the City and County of Zenith described as Lot 125 [Parcel 1] and Lot 126 [Parcel 2] on the Parcel Map entitled "1747 California Street, an Airspace Parcel Map”, filed for record in the Office of the Recorder of the City and County of Zenith, State of XXXXXXXXX, on November 15, 2000, in Book 44 of Parcel Maps, page(s) 141-147 (the “Center Map”) (collectively Lot 125 [Parcel 1] and Lot 126 [Parcel 2] shall be referred to herein as the "Property").

B. Declarant is developing the Property, to be known as The Centennial Market Street Center (the “Center”), as a high-rise real estate project to consist of distinct mixed use components and condominium units. The Center will consist of: [1] a commercial/retail/museum/hotel increment (the “Commercial Component”) to be developed within Lot 125 [Parcel 1] for the portions of the Center which include the areas below the ground surface, the first 16 floors of the Center, the roof of the Center and the other Center Structural Elements of the Center as defined in this Center Declaration, and [2] a residential increment to be developed within Lot 126 [Parcel 2] within the 20 floors of the Center located immediately above the Commercial Component (the “Residential Component”).

C. Declarant is making this Center Declaration for the purpose of facilitating the joint operation, use and enjoyment of the Property as the Center, the Commercial Component and Residential Component thereof, and the improvements situated thereon.

D. For purposes of separate financing, construction, operation, ownership and conveyancing, the Center Map has divided the Property vertically into two (2) separate parcels of airspace, as Lot 125 [Parcel 1] and Lot 126 [Parcel 2], referred to herein as the Building Parcels. These Building Parcels will be further divided as separate condominium projects, as the Residential Condominium Project and the Commercial Condominium Project, with Condominium Units in these condominium projects to be separately owned by the Condominium Owners. The Residential Project is shown and further described on the Residential Map and the Commercial Project is shown and further described on the Commercial Map.

E. Each of the Building Parcels which are to be divided into and operated as separate condominium projects, will be subject to a Condominium Declaration of Covenants and Restrictions (“Condominium Declaration”). It is the intention of the Declarant that in the event of any conflict between the interpretation or application of the terms of a Condominium Declaration and the terms of this Center Declaration, that the terms of this Center Declaration shall prevail and shall take precedence over the terms of a Condominium Declaration, unless the Declarant has clearly and specifically agreed in writing that the terms of the Condominium Declaration are to prevail. It is the intention of the Declarant to interpret and apply this Center Declaration and the Condominium Declarations such that they are applied in a manner consistent with the overall meaning and intent of each document, and, in the event of conflict, giving precedence to the terms of this Center Declaration over any conflicting provision of a Condominium Declaration.

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F. The maintenance and operation of certain elements of the Center, as described and

set forth in this Center Declaration, shall be operated by and through the Center Association, which shall be administered in the manner set forth in this Center Declaration, and in the Center Articles and the Center Bylaws.

G. This Center Declaration provides for a description of the separately held interests in the Property, reciprocal, non-exclusive easements and exclusive easements between and among the holders of interests in the Building Parcels, covenants for collective management, administration, operation, and maintenance of the Center Association Common Areas and the Center Common Easement Areas, the formation and operation of the Center Association, and certain covenants, conditions and restrictions relative to the use of the Center Association Common Areas, the Center Common Easement Areas, the Condominium Projects, and the Condominium Units located therein.

H. Certain portions of the Commercial Component are designated and described herein as Center Association Common Areas which shall be exclusive easement areas to be granted to the Center Association established under this Center Declaration with the facilities and improvements located within said Center Association Common Areas to be operated, maintained, repaired and replaced by the Center Association.

I. There will be non-exclusive reciprocal easements between the Commercial Component and the Residential Component, and other elements of the Center, for support, access, ingress, egress and other facilities, matters and uses as set forth in this Center Declaration, designated herein as the Center Common Easement Areas.

J. There will be Joint Use Easement Areas within the Center with respect to certain described facilities in the Center for the use of some, but not all of, the Components, Condominium Associations, Condominium Projects, or Condominium Units in the Center.

K. The costs for operation, maintenance, repair and replacement of the facilities in the Center Association Common Areas, the Center Common Easement Areas and the Joint Use Easement Areas shall be allocated and assessed between and among the Condominium Projects and the Owners of Condominium Units in the Center as set for in this Center Declaration.

L. There will, additionally, be established exclusive easements over and across one of the respective Components of the Center for the benefit of the other Component of the Center for access, ingress, egress and other matters and uses as set forth in this Center Declaration, designated herein as the “Exclusive Easements Areas”. The responsibility for undertaking, and paying for the costs of operation, maintenance, repair and replacement of the facilities in the Exclusive Easement Areas is set forth in this Center Declaration.

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M. The Center is one of the several parcels subject to the Amended and Restated Construction, Operation and Reciprocal Easement Agreement and Agreement Creating Liens for Central Block 1 of Capitol Square Gardens, dated _________, recorded ________, as Instrument No. _____________ Official Records of the City and County of Zenith, as Amended by the First Amendment to Amended and Restated Construction, Operation and Reciprocal Easement Agreement and Agreement Creating Liens dated _________, recorded _____________ as Instrument No.___________, Official Records of the City and County of Zenith (collectively referred to herein as the “CB-1 REA”). The obligations imposed on the Property and the Center by the CB-1 REA shall be administered, allocated and assessed by the Center Association to the Building Parcels, the Condominium Associations and the Condominium Owners of Condominium Units in the Condominium Projects as set forth in this Center Declaration.

N. Declarant intends by this document to impose upon the Property, as the Center, the mutually beneficial restrictions stated in this Center Declaration under a general plan of improvement for the benefit of all owners or holders of interests in and to the Building Parcels and the Condominium Units within each of the Condominium Projects.

NOW, THEREFORE, Declarant hereby declares that all of the Property shall be held, sold, leased, mortgaged, encumbered, rented, used, occupied, improved and conveyed subject to the following declarations, limitations, easements, restrictions, covenants, and conditions, which are imposed as equitable servitudes pursuant to a general plan for the development of the Property for the purpose of enhancing and protecting the value and desirability of the Property and every part thereof, and which shall run with the Property and be binding on Declarant and its successors and assigns, and on all parties having or acquiring any right, title or interest in or to the described Property or any part thereof, their heirs, successors and assigns, and shall inure to the benefit of each Owner thereof. ARTICLE 1.

DEFINITIONS

1.1. “Annual Center Assessments” shall mean and refer to the Annual Center Assessments established and levied pursuant to Section 4.3.

1.2. "Appraisal is defined in Section 9.9.

1.3. "Arbitration" is defined in Section 11.11.

1.4. "Assessment" shall mean that portion of the cost of maintaining, improving, repairing, operating and managing the Center, including the portion of assessments or costs allocated, levied or assessed to the Property under the CB1-REA, which is to be paid by the Condominium Association for each Building Parcel and, with respect to the Commercial Condominium Association, as determined by the Center Association pursuant to this Center Declaration as Annual Center Assessments or Special Center Assessments, or the costs levied to a particular Condominium Project or Owner as a Reimbursement Assessments pursuant to this Center Declaration.

1.5. "Assessment Percentages" shall mean and refer to the respective percentage of Assessments allocated and charged to each Condominium Association pursuant to Section 4.5 and set forth on Exhibit "A" of this Center Declaration.

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1.6. "Associations” shall mean and refer to the Center Association, the Commercial

Condominium Association and the Residential Condominium Association.

1.7. "Building" shall mean and refer to building improvements situated within the Center located within the Property, excluding the improvements within any Condominium Unit.

1.8. "Building Parcel" shall mean and refer to Lot 125 [Parcel 1] and Lot 126 [Parcel 2] as shown and described on the Center Map.

1.9. “CB-1 Assessment” shall mean and refer to the Allocable Share of the [1] Allocable Costs, as defined in the CB-1 REA, levied from time to time against the Center, or portions of the Center, pursuant to section 7.7 of the CB-1 REA and [2] Shared Truck Facilities Maintenance Costs as defined in the CB-1 REA, levied from time to time against the Center, or portions of the Center, pursuant to section 7.12 of the CB-1 REA.

1.10. “CB-1 REA” shall mean and refer to the Amended and Restated Construction, Operation and Reciprocal Easement Agreement and Agreement Creating Liens for Central Block 1 of Capitol Square Gardens, dated __________, recorded _________, as Instrument No. ___________, Official Records of the City and County of Zenith, and as may be subsequently amended from time to time by the parties thereto.

1.11. "Center” shall mean and refer to all of the Property described on the Center Map and all of the improvements constructed within the Property.

1.12. "Center Articles" shall mean and refer to the Articles of Incorporation of the Center Association, as amended from time to time.

1.13. "Center Assessments” shall mean and refer to the Center Assessments levied and assessed by the Center Association as Annual Center Assessments, Special Center Assessments or Reimbursement Assessments as described and set forth in Article 4 of this Center Declaration.

1.14. "Center Association" shall mean and refer to THE CENTENNIAL MARKET STREET CENTER ASSOCIATION, a nonprofit mutual benefit corporation, the members of which shall be the Residential Condominium Association and the Commercial Condominium Association.

1.15. "Center Association Common Areas” shall mean and refer to those elements, facilities, portions and areas of the Center that are designated and described in the Commercial Map and Commercial Declaration as the Center Association Common Areas [“CACA”] situated on the levels of the Commercial Condominium Project described on the Commercial Map as B-5 Basement, B-4 Basement; B-3 Basement, B-2 Basement and B-1 Basement. The Center Association Common Area shall also include whether or not shown or depicted on the Commercial Map the roof area of the Building and the window walls and curtain walls of the Building. The Declarant shall convey an exclusive easement to, over and across the Center Association Common Areas to the Center Association for the benefit of all of the Owners of Condominium Units in the Center as set forth in this Center Declaration for operation, maintenance, repair and replacement of such areas and the improvements therein for the overall Center operations. Any grant or conveyance of an interest in and to the Commercial Common Area of the Commercial Condominium Project shall be subject to all rights and interests of the

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Center Association in and to the Center Association Common Areas established by this Center Declaration. The Center Association shall be responsible for the operation and administration of the Center Association Common Areas by the Center Association and the maintenance, repair and replacement of the improvements and facilities within Center Association Common Areas. The costs of operation, administration, maintenance, repair and replacement of the improvements and facilities within Center Association Common Areas shall be assessed by the Center Association in the manner described herein as part of the General Allocation of Center Assessments. The Center Association shall establish rules and regulations for the use of and access to the Center Association Common Area in the Center Rules.

1.16. "Center Board" or "Center Board of Directors" shall mean and refer to the governing body of the Center Association.

1.17. "Center Bylaws" shall mean and refer to the Bylaws of the Center Association, as amended from time to time.

1.18. "Center Common Easement Area” or “Center Common Easement Areas” shall mean those areas of any Building Parcel and the Condominium Projects, which areas are designated herein as a Center Common Easement Area, and that are reserved for the non-exclusive use, enjoyment and benefit of the Condominium Projects, the Condominium Owners and other holders of interests in each of the Building Parcels as set forth in Section 2.3. The Center Common Easement Areas located within the Commercial Common Areas of the Commercial Condominium Project shall be shown on the Commercial Map as those areas designated by the letters “CCEA”. The Center Common Easement Areas located within the Residential Condominium Project are those areas within the Residential Common Area of the Residential Project shown and described on Exhibit “B” of this Center Declaration as Center Common Easement Areas designated by the letters “CCEA”. Any grant or conveyance of an interest in and to the Commercial Common Areas or the Residential Common Areas shall be subject to all of the Center Common Easement Areas established by this Center Declaration.

1.19. "Center Documents" shall mean and refer to this Center Declaration, together

with the other basic documents used to create and govern the Project, including the Center Map, the Center Articles, and the Center Bylaws (but excluding unrecorded rules and regulations adopted by the Center Board or the Center Association).

1.20. "Center Improvements” shall mean and refer to all of the improvements and facilities within the Center, including the Building, the Condominium Projects, the Condominium Units, all utility facilities within the Property that serve the Building and the Condominium Units.

1.21. "Center Map" shall mean and refer to that Map entitled "1747 California Street, an Airspace Parcel Map", filed for record on ________, in Book ___ of Parcel Maps, page(s) _____ in the Office of the Recorder of Zenith County.

1.22. “Center Rules” shall mean the rules and regulations adopted by the Center Association.

1.23. “Center Structural Elements” shall mean and refer to all structural components, elements and facilities of the Center, including, but not limited to, the foundation, the structural beams, girders, columns, pillars, braces, exterior window walls and curtain walls, interior structural walls, the roof and roof membranes, and the exterior surfaces of the Building.

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1.24. "City" shall mean the City and County of Zenith, XXXXXXXXX, a municipal corporation.

1.25. "Commercial Common Area" shall mean and refer to the areas located within the Commercial Condominium Project that are designated as the Commercial Common Areas in the Commercial Condominium Declaration and on the Commercial Map as Commercial Parcel 2.

1.26. “Commercial Component” shall mean the portion or portions of the Center which are not situated within the Residential Component, and which are situated within Lot 125 [Parcel 1] on the Center Map, including the Property, land and improvements below the ground surface, the first 16 floors of the Center, the exterior portions and elements of the building structure of the Center, the roof of the Center, all as located within Lot 125 [Parcel 1] as shown on the Center Map. The Commercial Component may include, without limitation, the following improvements and uses, which may be established in separate Condominium Units, subject to changes as the Declarant and the Owners of Condominium Units in the Commercial Condominium Project may determine as provided in the Commercial Declaration: a subterranean garage parking unit; a retail unit; a commercial sports club unit; a commercial hotel unit; and a museum unit. The precise uses and scope and limitations of the uses of the Condominium Units in the Commercial Component shall be subject to the provisions of the Commercial Condominium Declaration and as further shown and described on the Commercial Map.

1.27. “Commercial Condominium Association” shall mean the Condominium Association for the Commercial Condominium Project.

1.28. “Commercial Condominium Declaration” shall mean the condominium project declaration of covenants and restrictions established and imposed upon the Commercial Component to create, and provide for the management and operation of the Commercial Condominium Project.

1.29. “Commercial Condominium Project” shall mean the condominium project established within the Commercial Component as further shown and described on the Commercial Map.

1.30. “Commercial Map” shall mean the subdivision map and condominium plan entitled “Map of The Centennial Market Street Center Commercial Condominiums 1747 California Street Zenith” that further divides Lot 125 [Parcel 1] of the Center Map into the Commercial Units and Commercial Common Area which Commercial Map is or shall be recorded in the Official Records of the County of Zenith.

1.31. “Commercial Unit” shall mean and refer to the separate Condominium Units shown and described on the Commercial Map as further described and defined in the Commercial Condominium Declaration.

1.32. "Common Easement Area Facilities” shall mean and refer to those facilities and items located within Center Common Easement Areas that are described on Exhibit “B” hereof as Common Easement Area Facilities.

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1.33. "Common Expenses" means and includes the [1] actual and estimated expenses of operating, managing, maintaining, repairing and replacing the Center Association Common Areas, the Center Common Easement Areas, and the Joint Use Easement Areas, [2] any reasonable reserve for such purposes as found and determined by the Center Board, [3] the portion of the CB1-REA Assessments that are allocated to the Property, and [4] all other sums designated as Common Expenses for operating, managing, maintaining, repairing or replacing facilities within the Center or providing services within the Center by the Center Association by or pursuant to the Declaration, Center Articles, or Center Bylaws.

1.34. “Component” shall mean and refer to the Commercial Component and the Residential Component of the Center.

1.35. “Condominium Association” means and refers to the Residential Condominium Association and the Commercial Condominium Association.

1.36. “Condominium Declaration” means the condominium enabling declaration of covenants and restrictions established and imposed on each of the Building Parcels which are or are to be divided into and operated as separate condominium projects.

1.37. “Condominium Owner or Condominium Owners” shall mean and refer to the owner or owners of Condominium Units in either of the Condominium Projects.

1.38. “Condominium Plan” means the condominium plans for each of the Building Parcels which, pursuant to Civil Code Section 1351(e), establish and create the separate condominium projects within the Commercial Component and the Residential Component, and which condominium plans are filed in the records of the City and County of Zenith as the Commercial Map and the Residential Map, and are more fully described in the Condominium Declaration for each Commercial Condominium Project and the Residential Condominium Project.

1.39. “Condominium Projects” shall mean and refer to Residential Condominium Project and the Commercial Condominium Project that constitute the Center.

1.40. “Condominium Units” shall mean and refer to condominium units created and established within each of the Condominium Projects, being the separate interests created by and under the Condominium Declaration for each of the Condominium Projects and the Condominium Plan for each of the Condominium Projects.

1.41. “Cost Center Allocation” shall mean and refer to the allocation of the costs of Joint Use Easement Areas or Cost Center Services to certain or some of, but not all of, the Components, Condominium Associations, Condominium Projects, or Condominium Units in the Center in accordance with Section 4.5.1 and 4.5.2.

1.42. “Cost Center Services” shall mean and refer to those services and activities of the Center Association that inure to the benefit of one or more of the Owners, or to one Component or Condominium Project disproportionately to the other Owners, Component or Condominium Project, as such services and activities are identified and described in Section 4.5.2 hereof and on Exhibit “E” of this Center Declaration.

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1.43. "Declarant" shall mean and refer to ABC Entertainment Partners LP, a Limited Partnership, and any successor or assign that expressly assumes all of the rights and duties of the Declarant hereunder in a recorded written document.

1.44. "Declaration" shall mean and refer to this Center Declaration, as amended or supplemented from time to time.

1.45. "Exclusive Easement Areas" shall mean those portions of the Commercial Component of the Center described in Section 2.8 of this Center Declaration and on Exhibit "C" of this Center Declaration. The Exclusive Easement Areas shall be reserved for the use and benefit of a particular Condominium Unit or Condominium Project to which it is adjacent or appurtenant as set forth in Section 2.8. The Exclusive Easement Areas located within the Commercial Common Areas of the Commercial Condominium Project shall be shown on the Commercial Map as those areas designated by the letters “E” followed by the number of the Commercial Unit to which the Exclusive Easement is appurtenant or by the letters RES if the Exclusive Easement is appurtenant to the Residential Condominium Project. The Exclusive Easement Areas located within the Residential Common Areas of the Residential Condominium Project shall be shown and described on the Exhibit “C-1" of this Center Declaration as those areas designated by the letters “E” followed by the number of the Commercial Unit to which the Exclusive Easement is appurtenant.

1.46. "First Mortgage" shall mean a mortgage or deed of trust which encumbers a Parcel or Condominium Unit which is prior to any other mortgages or deeds of trust which encumber such Parcel or such Condominium Unit.

1.47. "First Mortgagee" shall mean any bank, federal or state savings and loan association, or insurance company, or any subsidiary of any of the foregoing, or any pension fund or trust, group trust, real estate investment trust or saving fund society, or other similar financial institution that, from time to time, is the holder or co-holder of a recorded First Mortgage on any Parcel or any Condominium Unit.

1.48. “General Allocation of Center Assessments” shall mean and refer to the

allocation of Center Assessments to the Condominium Projects on the basis and terms set forth in Section 4.5 of this Center Declaration.

1.49. “Hotel Unit” shall mean and refer to the Condominium Unit located within the Commercial Condominium Project that is designated as the Hotel Unit in the Commercial Condominium Declaration and designated collectively on the Commercial Map as Commercial Parcel 3 and Commercial Parcel 7.

1.50. “Joint Use Easement Areas” shall mean and refer to those improvements, facilities, Utility Facilities or services furnished, undertaken or provided within Commercial Component of the Center described in Section 2.4 of this Center Declaration and on the Commercial Map that (i) are used in common by more than one, but not all, of the Components and/or Condominium Units in the Center, and which are not used solely by one Component or Condominium Unit in the Center, or (ii) which are used disproportionately within the Center by a Component or by a Condominium Unit or Condominium Units in the Center. The Joint Use Easement Areas located within the Commercial Common Areas of the Commercial Condominium Project shall be shown on the Commercial Map as those areas designated by the letters “JT” followed by the number of the Commercial Unit or Commercial Units to which the

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Joint Use Easement Area is appurtenant or by the letters RES if the Joint Use Easement Area is appurtenant to the Residential Condominium Project.

1.51. “Majority Vote of Center Members” shall mean and refer to a vote of the Commercial Condominium Association and the Residential Condominium Association as the Members of the Center Association determined in accordance with Section 3.4 of this Center Declaration.

1.52. "Member" shall mean and refer to each the Commercial Condominium Association and the Residential Condominium Association in their capacities as members of the Center Association.

1.53. "Mortgage" shall include a deed of trust as well as a mortgage.

1.54. "Mortgagee" shall include a beneficiary or a holder of a deed of trust as well as a mortgagee.

1.55. "Mortgagor" shall include the trustor of a deed of trust as well as a mortgagor.

1.56. “Museum Unit” shall mean and refer to that certain Condominium Unit in the Commercial Condominium Project that is described in the Commercial Condominium Declaration as the Museum Unit. and on the Commercial Map as Commercial Parcel 6.

1.57. "Owner" shall mean and refer to the record owner, whether one (1) or more persons or entities, of fee simple title to any Condominium Unit which is a part of the Center, but excluding those persons or entities having an interest merely as security for the performance of an obligation. If a Condominium Unit is sold under an installment contract of sale and the installment contract is recorded, the purchaser, rather than the fee holder, will be considered the "owner" of the Condominium Unit from and after the date the Center Association receives written notice of the recorded installment contract.

1.58. "Parcel" shall mean the generic reference to each parcel shown on the Center Map.

1.59. "Parking Garage" shall mean and refer to the commercial parking garage located within the Parking Unit of the Commercial Condominium Project.

1.60. "Parking Unit” shall mean and refer to that certain Condominium Unit in the Commercial Condominium Project that is described in the Commercial Condominium Declaration as the Parking Unit and on the Commercial Map as Commercial Parcel 1.

1.61. "Person" means a natural person, a corporation, a partnership, a limited liability company, a trustee, or other legal entity.

1.62. "Property" shall have the meaning set forth in Recital "A".

1.63. “Redevelopment Agency” shall mean and refer to the Redevelopment Agency of the City and County of Zenith, XXXXXXXXX, an agency organized under the Community Redevelopment Law of the State of XXXXXXXXX.

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1.64. “Reimbursement Assessment” shall mean and refer to an assessment levied by the Center Board against a Condominium Association or an Owner to reimburse the Center Association for costs incurred in bringing such Condominium Association or such Owner or the Condominium Project governed by such Condominium Association or such Owner’s Unit into compliance with provisions of the Center Documents.

1.65. "Residential Common Area" shall mean and refer to the areas located within the Residential Condominium Project that are designated as the Residential Common Areas in the Residential Condominium Declaration.

1.66. “Residential Component” shall mean the residential high-rise increment of the Center consisting of the highest 20 floors of the Center, located within Lot 126 [Parcel 2] as shown on the Center Map, including the following improvements and uses: the Residential Condominium Units and the Residential Common Area, as defined in the Residential Condominium Declaration, excluding Joint Use Easement Areas, Exclusive Easement Areas, Center Common Easement Areas and Center Structural Elements within Parcel 2. The precise uses and scope and limitations of the uses of the Condominium Units in the Residential Component shall be subject to the provisions of the Residential Condominium Declaration.

1.67. “Residential Condominium Association” shall mean the Condominium Association for the Residential Condominium Project.

1.68. “Residential Condominium Declaration” shall mean the condominium project declaration of covenants and restrictions established and imposed upon the Residential Component to create, and provide for the management and operation of the Residential Condominium Project.

1.69. “Residential Condominium Project” shall mean the condominium project established within the Residential Component.

1.70. “Residential Condominium Unit” shall mean and refer to the Condominium Units located within the Residential Condominium Project as designated in the Residential Condominium Declaration and on the Condominium Plan for the Residential Condominium Project.

1.71. “Residential Map” shall mean the subdivision map and condominium plan, entitled “Map of the Residences at the Stone Creek Hotel 1747 California Street Zenith”, that further divides Lot 126 [Parcel 2] of the Center Map into the Residential Units and Residential Common Area which Residential Map is or shall be recorded in the Official Records of the County of Zenith.

1.72. “Retail Unit” shall mean and refer to the Condominium Unit located within the Commercial Condominium Project that is designated as the Retail Unit in the Commercial Condominium Declaration and on the Commercial Map as Commercial Parcel 4.

1.73. “Special Center Assessment” shall mean and refer to the Special Center Assessments determined and levied pursuant to Section 4.4 of this Center Declaration.

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1.74. “Sports Club Unit” shall mean and refer to the Condominium Unit located within the Commercial Condominium Project that is designated as the Sports Club Unit in the Commercial Condominium Declaration and on the Commercial Map as Commercial Parcel 5.

1.75. "Utility Facilities" shall have the meaning set forth in Section 2.13. ARTICLE 2. DESCRIPTION OF CENTER, DIVISION OF PROPERTY, AND CREATION OF PROPERTY RIGHTS

2.1. Description of the Center. The Center is a mixed use commercial and residential air-space subdivision consisting of the two Building Parcels and all of the improvements located thereon. Each of the Building Parcels, described on the Center Map as Lot 125 [Parcel 1] and Lot 126 [Parcel 2], consist of three dimensional space as shown on the Center Map. Lot 125 [Parcel 1] is improved with a Commercial Condominium Project as the Commercial Component. Parcel Lot 126 [Parcel 2] is improved with a Residential Condominium Project as the Residential Component. The Center includes the Center Association Common Area, the Center Common Easement Areas, the Joint Use Easement Areas, the Exclusive Easements Areas and the other easements and rights set forth in this Article 2 and elsewhere in this Center Declaration.

2.1.1. Boundaries of Building Parcels. The boundary line between the Residential Component, Lot 126 [Parcel 2] and the Commercial Component Lot 125 [Parcel 1], where such boundary line is located along the exterior curtain walls of the Building, at all elevations of the Building, shall be deemed to include as part of the Commercial Component, notwithstanding whether such is expressly shown or depicted on the Center Map, the structural columns, pillars, beams or other Center Structural Elements of the Center, and all such structural columns, pillars, beams or other Center Structural Elements which are situated along or adjacent to the exterior curtain walls of the Building in each instance shall be part of the Commercial Component unless otherwise stated or noted in the Center Documents.

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2.2. Center Association Common Areas. There are certain portions of the Commercial Common Area of the Commercial Portion of the Center that are designated and described on the Commercial Map as Center Association Common Areas. The Center Association Common Areas contain the operational facilities of the Center to be managed and operated by the Center Association, including, but not limited to, fan rooms, transformer rooms, fire pump rooms, water tanks, building management shop, electrical rooms, chillers, boilers, boiler combuster and shafts, loading dock and loading ramp, dock lifts, trash and recycling room, utility chases, locker rooms, storage rooms, Center Association offices, lunch rooms, conference room and vestibules. The Center Association Common Area also includes the roof area of the Building and the window walls and curtain walls of the Building. The Declarant shall convey an exclusive easement to, over and across the Center Association Common Areas to the Center Association for maintenance and operation of all of the improvements and facilities within the Center Association Common Areas for benefit of all of the owners of Condominium Units in the Center as set forth in this Center Declaration. Any grant or conveyance of an interest in and to the Commercial Common Area of the Commercial Condominium Project shall be subject to all rights and interests of the Center Association in and to the Center Association Common Areas established by this Center Declaration. The exclusive rights in and to the Center Association Common Areas shall be conveyed by Declarant to, and held and owned by the Center Association, for the benefit of all of the Owners of Condominium Units in the Center as set forth in this Center Declaration. The Center Association shall be responsible for the operation and administration of the Center Association Common Areas and the maintenance, repair and replacement of all improvements within the Center Association Common Areas. The costs of operation, administration, maintenance, repair and replacement of the Center Association Common Areas shall be assessed by the Center Association in the manner described herein as part of the General Allocation of Center Assessments. The Center Association shall establish rules and regulations for the use of and access to the Center Association Common Area in the Center Rules. Notwithstanding the foregoing, the Center Association Common Areas, including, but not limited to, the roof area of the Building, the window walls and curtain walls of the Building, mechanical rooms, mechanical equipment and facilities, storage rooms, operations rooms, facilities and offices, loading docks, boiler and chiller rooms, trash and recycling rooms, and other such services rooms and facilities of the Center Association Common Area, may be restricted as to access to authorized personnel of the Center Association or its designees in accordance with the Center Rules.

2.3. Center Common Easement Areas. Certain areas within each Building Parcel are reserved as Center Common Easement Areas for the use and benefit of the Center Association and the Owners over and across Commercial Units in the Center, or common areas of the Condominium Projects in the Center, for providing access and use to certain facilities, utility lines and services that are operated and maintained by the Center Association for the benefit of all of the Owners of Condominium Units in the Center. The Center Common Easement Areas include the common walkways, common grounds, the common driveway and porte cochere of the Center and those elevators, staircases, shafts, chutes, ducts, vents, chases that are designated herein as Center Common Easement Areas, that are available for use of all Owners in the Center, subject to the Center Rules. The Center Common Easement Areas located within the Commercial Common Areas of the Commercial Condominium Project shall be shown on the Commercial Map as those areas designated by the letters “CCEA”. The Center Common Easement Areas located within the Residential Condominium Project are those areas within the Residential Common Area of the Residential Project shown and described on Exhibit “B” of this Center Declaration as Center Common Easement Areas designated by the letters “CCEA”. Any grant or conveyance of an interest in and to the Commercial Common Areas, the Commercial Units or the Residential Common Areas shall be subject to all of the Center

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Common Easement Areas established by this Center Declaration. The Center Association shall be responsible for the operation, management and administration of the Center Common Easement Areas and the maintenance, repair and replacement of the Center Common Easement Areas and the Common Easement Area Facilities located therein. The costs of operation, management, administration, maintenance, repair and replacement of the improvements within the Center Common Easement Areas shall be assessed by the Center Association in the manner described herein as the General Allocation of Center Assessments. [Each Condominium Association, and each Condominium Owner, its tenants, employees, agents, invitees and guests, for a term and duration coextensive with such Condominium Owner's title or interest in its respective Condominium Unit, shall be provided, non-exclusive easements and rights in and to all of the Center Common Easement Areas, including common walkways, common grounds, the common driveway and porte cochere, and common stairways located within the Center Association Common Area, except as otherwise limited or restricted by this Center Declaration, and subject to any Center Rules established by the Center Association pursuant to this Center Declaration, for ingress and egress over and across the Center Association Common Areas.

2.4. Joint Use Easement Areas. Rights of joint use over certain areas within the Building Parcels are reserved over Commercial Units or common areas of Condominium Projects in the Commercial Component of the Center as the Joint Use Easement Areas for the shared and joint exclusive use of certain Components or Condominium Units in the Center. The Joint Use Easement Areas located within the Commercial Common Areas of the Commercial Condominium Project shall be shown on the Commercial Map as those areas designated by the letters “JT” followed by the number of the Commercial Unit or Commercial Units to which the Joint Use Easement Area is appurtenant or by the letters RES if the Joint Use Easement Area is appurtenant to the Residential Condominium Project. Exhibit “D” to this Center Declaration provides further description with respect to such Joint Use Easement Areas. Such Joint Use Easements Areas shall mean and refer to those improvements, facilities, Utility Facilities or services furnished, undertaken or provided by the Center Association within the Center that are used in common by more than one, but not all, Components and/or Condominium Units in the Center, or are used disproportionately within the Center by a Component or by Condominium Units, and which are described on Exhibit “D”. The Joint Use Easement Areas described in Exhibit “D”, over and across the areas of the Center where such Joint Use Easement Areas are located, are established for, and are granted to, the parties which are described in Exhibit “D” as being the beneficiary and grantee of any particular described Joint Use Easement Area. The costs of operation, management, administration, maintenance, repair and replacement of the Joint Use Easement Areas shall be assessed by the Center Association as Cost Center Allocations of Center Assessments, as set forth in Section 4.5.1 of this Center Declaration, on the basis of the use and benefit of such Joint Use Easement Area to the Condominium Association and/or the Condominium Units that use and benefit from the Joint Use Easement Area.

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2.5. Easements for Ingress and Egress.

2.5.1. Common Easements for Ingress and Egress. Each Condominium Association, and each Condominium Owner, its tenants, employees, agents, invitees and guests, for a term and duration coextensive with such Condominium Owner's title or interest in its Condominium Unit, shall be provided non-exclusive easements and rights in and to all of the common walkways, common grounds, the common driveway and porte cochere of the Center located within the Center Common Easement Area. Except as limited or restricted by this Center Declaration and the Center Rules, each Condominium Association, and each Condominium Owner, its tenants, employees, agents, invitees and guests for a term and duration coextensive with such Condominium Owner's title or interest in its Condominium Unit, shall be provided non-exclusive easements and rights in and to the common elevator that is included within the Center Common Easement Area, and, as required for emergency access purposes and other purposes allowed or permitted by the Center Board, the common stairways within the Center Common Easement Areas.

2.5.2. Residential Lobby Easement. An exclusive easement and right of access appurtenant to the Residential Condominium Project, and each Condominium Unit within the Residential Condominium Project, for use and benefit of the Residential Condominium Association and the Condominium Owners in the Residential Condominium Project, their tenants, guest and invitees, is hereby established, and shall be provided, over and across that portion of the Commercial Common Areas located on the ground level of the Center designated on Exhibit “F” to this Center Declaration as the “Residential Lobby Easement” for use as the entry lobby for the Residential Condominium Project, and for access to elevators serving the Residential Condominium Project. The rights of use and access over and across the Residential Lobby Easement area shall be subject to the Center Rules, provided that such Center Rules do not unreasonably impair the rights of access of Condominium Owners in the Residential Condominium Project. The Residential Lobby Easement shall be used only for ingress and egress by Residential Owners and their guests to the Residential Condominium Project and activities reasonably related to such ingress and egress.

2.5.3. Hotel Unit Access Easement. An exclusive easement of use and right of access appurtenant to the Hotel Unit for use and benefit of the Hotel Unit and the Owner of the Hotel Unit, the hotel operator of the hotel within the Hotel Unit, and the employees, agents, guests and invitees thereof, is hereby established, and shall be provided, over and across that portion of the Commercial Common Areas located on the ground level of the Center designated on Exhibit “F” to this Center Declaration as the “Hotel Unit Access Easement” for use in conjunction with the operation of the hotel within the Hotel Unit of the Center and for access to elevators serving the Hotel Unit. The rights of use and access over and across the Hotel Unit Access Easement area shall be subject to the Center Rules, provided that such Center Rules do not unreasonably impair the rights of access or use of the Hotel Unit Access Easement area by the Hotel Unit Owner or the operator of the hotel. Access over and across any other portion of the lobby area of the Hotel Unit Access Easement or any portions of the Hotel Unit by Condominium Owners in the Residential Condominium Project, or other Owners in the Commercial Condominium Project, or representatives of the Residential Condominium Association shall be subject to such limitations or prohibitions as may be established from time to time by the Owner of the Hotel Unit, or by its tenant, manager or operator.

2.6. Structural Support. Each Component of the Center, each Condominium Project, each Condominium Unit, and each Building Parcel, shall be provided non-exclusive easements and rights in and to all structural members, columns, beams and other supporting components

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within and upon the Center, and over and across the Center, for structural support of the improvements situated within the such Component, Condominium Project, Condominium Unit or Building Parcel.

2.6.1. No Condominium Owner or Condominium Association shall take any action which would adversely affect the structural integrity or safety of the improvements situated within the Center, including those improvements situated within any Component of the Center, any Condominium Project, any Condominium Unit or any Building Parcel.

2.6.2. If additional structural support is required for a Component of the Center, a Condominium Project, a Condominium Unit or a Building Parcel, then the Condominium Association Board for the Component, Condominium Project, Condominium Unit or Building Parcel which is affected thereby shall petition the Center Board, to establish the rights to undertake construction of such additional support as may be deemed required for such Component, Condominium Project, Condominium Unit or Building Parcel. The costs of any such additional structural support shall be borne by the Center Association if the requirement for such additional structural support is caused by a change in the laws and ordinances applicable to the Center. If the cause or reason for the need of such additional structural support is (i) a change in use of a Condominium Unit, or (ii) the installation of improvements or facilities in a Condominium Unit or (iii) the negligence of a Condominium Owner, then the costs associated with such additional structural support shall be borne by the Condominium Owner of such Condominium Owner.

2.6.3. In the event of damage or destruction of the improvements within the Center causing diminishment of structural support to a Component of the Center, a Condominium Project, a Condominium Unit or a Building Parcel, then the Center Association shall be responsible for undertaking, as a Common Expense, the repair or reconstruction of the damaged or destroyed improvements, as set forth in Section 9.1.1 hereof, and for furnishing, as a Common Expense, such structural support to the Components of the Center, a Condominium Project, a Condominium Unit or a Building Parcel pursuant and subject to the provisions of Article 9 of this Center Declaration.

2.7. Encroachment Easements. Each Building Parcel, Condominium Project and Condominium Unit, as the dominant tenement, and each Owner of such Building Parcel, Condominium Project or Condominium Unit for a term and duration coextensive with such Owner's title or interest in such Building Parcel, Condominium Project or Condominium Unit, shall have an easement over the adjoining Building Parcel, Condominium Project, Condominium Units, Center Common Easement Areas, and the Joint Use Easement Areas, as the servient tenements, for the purpose of accommodating any encroachment due to the actual physical location of structural elements of a Building Parcel, Condominium Project or Condominium Unit which are built in accordance with the original design, plans and specifications of Declarant, or due to engineering errors, errors or adjustments in original construction, settlement or shifting of a building, or similar causes. There shall be valid easements for the maintenance of said encroachments as long as they shall exist, and the rights and obligations of Condominium Project or Condominium Owners shall not be altered in any way by said encroachment, settlement or shifting; provided, however, that in no event shall a valid easement for encroachment be created in favor of a Condominium Association or Condominium Owner or Owners if said encroachment occurred due to the intentional conduct of said Condominium Association or Condominium Owner or Owners, other than adjustments by Declarant, or Declarant's successors, in the original construction of the improvements. In the event a structure is partially or totally destroyed, and then repaired or rebuilt, then the Condominium Associations and the Condominium Owners agree that minor encroachments over the Center Association

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Common Area or Center Common Easement Areas shall be permitted and that there shall be valid easements for the maintenance of said encroachments so long as they shall exist. In the event that an error in engineering, design or construction results in an encroachment of a portion of the Building into the Center Association Common Area or Center Common Easement Areas, or into a required setback area, then a correcting modification may be made in the Center Map. Said modification shall be in the form of a certificate of correction and shall be executed by Declarant (so long as Declarant is the sole owner of the Property) and by Declarant's engineer and by the city engineer. If the correction occurs after an interest in the Center Association Common Area or Center Common Easement Area has been conveyed to any Condominium Association or any Owner other than Declarant, then the certificate of correction shall also be executed by each Condominium Associations on behalf of all of the members thereof, which shall not unreasonably delay or withhold such execution.

2.8. Exclusive Easements Areas. There are hereby established for the use and benefit of certain of the Condominium Units or a specific Condominium Project, as the benefited property, as further described on Exhibit “C” to this Center Declaration, over and across those portions of the Center further described and shown on Exhibit “C”, as the servient property, exclusive easements appurtenant to the described benefited property, for the use and operation, maintenance, repair and replacement of a particularly described facility or improvement located within said Exclusive Easement Area, for the use and benefit of a particular Condominium Unit or Condominium Project to which the Exclusive Easement Area is appurtenant as set forth in Exhibit “C”. The Exclusive Easement Areas are shown on the Commercial Map as the easement areas over and across a portion of a Commercial Unit or a portion of the Commercial Common Area which portions are designated on the Commercial Map as the areas designated by the letter “E” followed by the number of the Commercial Unit to which the Exclusive Easement Area is appurtenant or by the letters “RES” if the Exclusive Easement Area is appurtenant to the Residential Project. The Exclusive Easement Areas located within the Residential Common Areas of the Residential Condominium Project shall be shown and described on the Exhibit “C-1" of this Center Declaration as those areas designated by the letters “E” followed by the number of the Commercial Unit to which the Exclusive Easement is appurtenant. The obligation and responsibility for maintenance, repair and replacement of the improvements in such Exclusive Easement Area shall be that of the particular Condominium Unit or Condominium Project to which the Exclusive Easement Area is appurtenant.

2.9. Maintenance and Construction Easements. Easements over each Building Parcel are reserved by Declarant, and hereby granted to the Center Association, for the purpose of performing such maintenance, repair and restoration, if any, as the Center Association may do in accordance with the provisions of this Center Declaration, and for the purpose of maintaining Utility Facilities lying within the Center.

2.10. Construction Easements for Center. Non-exclusive easements are reserved by Declarant, for a term and duration coextensive with the Declarant's title or interest in any Building Parcel, Condominium Project, or part or portion thereof, for access to, and ingress and egress over and across, the Center Association Common Area, the Center Common Easement Areas, the Joint Use Easement Areas, and the common areas of the Condominium Projects, as reasonable and necessary to undertake and complete the work of completing the development and construction of the Center, each Condominium Project and the Condominium Units.

2.11. Construction Easements for Condominium Projects. Non-exclusive easements are reserved by Declarant, and, subject to the terms of this Center Declaration and Center Rules, are granted to each Condominium Association and Condominium Owner to

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maintain, repair, replace or restore the improvements situated within the Condominium Project to be undertaken by the Condominium Association or the Condominium Owner pursuant to this Center Declaration.

2.12. Drainage Easements. A non-exclusive easement over, through and under each Building Parcel is reserved in favor of the other Building Parcel and the Center Association for the purpose of allowing the Center Association's agents to enter the Building Parcel or the Center Common Easement Areas to maintain that portion of the drainage systems located thereon. No Condominium Association or Condominium Owner or occupant shall commit any act that would interfere with the operation of any drainage system located within the Center.

2.13. Owners' Rights and Easements for Utilities. The rights and duties of the Center Association, the Owner or Owners of Building Parcels or Condominium Associations within the Center with respect to sanitary sewer, drainage, water, electric, gas, radio, television receiving, telephone, data and telecommunications equipment, cables and lines, elevators, elevator shafts, fire sprinklers, fire safety devices, exhaust flues, and heating and air conditioning facilities (hereinafter referred to, collectively, as "Utility Facilities") shall be as follows:

2.13.1. Whenever Utility Facilities are installed within the Center, which Utility Facilities or any portion thereof lie in or upon a Building Parcel owned by other than the Owner or Owners of a Building Parcel served by said Utility Facilities, then the Owner or Owners of any Building Parcels served by said Utility Facilities, or the Association with respect to such a Building Parcel served by such Utility Facilities which has responsibility of such Utility Facilities, shall have the right of reasonable access for themselves, or for utility companies, or the City, to repair, replace and generally maintain said Utility Facilities as and when the same may be necessary, except where the maintenance, repair and replacement of such Utility Facilities is the responsibility of the Center Association under this Center Declaration.

2.13.2. The Center Association shall have rights of ingress and egress over and across all areas of the Center where Utility Facilities are installed or located, including all telephone rooms, electrical rooms, risers or chases in the Building, for access by the Center Association, utility companies or the City to repair, to replace and generally maintain said Utility Facilities as and when the same may be necessary. The Center Association shall have rights of ingress and egress over and across all areas of the Center where Utility Facilities are installed within the Center for access to the Center Association when any Owner or Condominium Association fails to undertake its responsibility to maintain, repair or replace such Utility Facilities as to which such Owner or Condominium Association has such responsibility under this Center Declaration, and the Center Association elects to cause such maintenance, repair or replacement to be made pursuant to the provisions of this Center Declaration.

2.13.3. In the event of a dispute between Owners and/or between or with any Association with respect to the repair or rebuilding of said Utility Facilities, or with respect to the sharing of the cost thereof, then, upon written request of an Owner or Association addressed to the other Owner(s) and/or an Association, the matter shall be submitted to Arbitration pursuant to Section 11.11 of this Center Declaration.

2.13.4. In the event that emergency repair of a fire prevention or suppression system is needed, the repairs shall be made at once by the Center Association, without first determining who is responsible, and any disagreement about who is responsible for making the repairs or paying for them shall be resolved by Arbitration, if necessary, after the repairs are made.

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2.13.5. Subject to the Center Rules, any Owner may delegate to such Owner's

tenants, contract purchasers, or any occupant of such Owner's Building Parcel such Owner's rights and duties with respect to, and the use and enjoyment of, the easements for Utility Facilities described in this Section, provided that no such delegation shall relieve such Owner from responsibility for its duties.

2.14. Center Association Maintenance Easement. There will be nonexclusive easements for the benefit of the Center Association, and its agents and employees, established over and across those portions of each of the Building Parcels to the extent reasonable and required for maintenance, repair and replacement of Center Improvements, including, but not limited to, those improvements located in the Center Association Common Areas, the Center Common Easement Areas, and as set forth Sections 2.2, 2.3, 2.4, 2.7, 2.12, Article 5 and in Section 9.1.1 of this Center Declaration.

2.15. Other Easements. The Center and each Building Parcel are subject to all ease-ments, dedications, and rights of way, if any, granted or reserved in, on, over and under the Property as shown on the Center Map, and such other easement or rights of access and use as may be necessary for the use and operation of any improvements within a Building Parcel for purposes consistent with the permitted uses under this Center Declaration and not inconsistent with the rights and interests of other Owners as may be approved in writing by the Declarant or the Center Association.

2.16. Rights of Entry and Use. The Condominium Projects, and each Building Parcel, shall be subject to the following rights of entry and use:

2.16.1. The right of the Center Association's agents to enter any Condominium Project to cure any violation of this Center Declaration or the Center Bylaws, provided that the Condominium Association or Owner accused of such violation has received notice and a hearing as required by the Center Bylaws (except in the case of an emergency) and the Condominium Association or Owner accused of such violation has failed to cure the violation or take steps necessary to cure the violation within thirty (30) days after the finding of a violation by the Center Association.

2.16.2. Subject to Section 5.2.5, the access rights of the Center Association to maintain, repair, operate or replace improvements or real or personal property located in the Center Common Easement Area;

2.16.3. The easements described in this Article 2;

2.16.4. The right of the Center Association's agents to enter any Building Parcel to perform maintenance as described in Section 8.4;

2.16.5. The right of any Owner or its delegee to enter the Center Common Easement Areas, Joint Use Easement Areas or Exclusive Easement Areas to perform maintenance on any facility for which such Owner or delegee is responsible;

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2.16.6. The rights of Declarant, its contractor and subcontractors to do on any Building Parcel that which is reasonably necessary or advisable in connection with the construction of the Center, provided that Declarant shall make reasonable effort to avoid disturbing the use and enjoyment of any of the Building Parcels and the Center Common Easement Area.

2.17. Easements to Accompany Conveyance of Building Parcel or Condominium Unit. Easements that benefit or burden any Building Parcel or a Condominium Unit shall be appurtenant to that Building Parcel or Condominium Unit and shall automatically accompany the transfer, conveyance or demise of such Building Parcel or Condominium Unit, even though the description in the instrument of transfer may refer only to the interests in the Building Parcel or Condominium Unit as transferred, conveyed or demised.

2.18. Delegation of Use. Subject to the Center Rules, any Owner may delegate, in accordance with the Center Bylaws, its right of use and enjoyment of the Center Association Common Area, Center Common Easement Areas, Joint Use Easement Areas, or Exclusive Easement Areas, and the duties with respect thereto, to tenants, or installment contract purchasers, and to any occupant of the Owner's Condominium Unit, provided no such delegation shall relieve such Owner of responsibility therefor.

2.19. Museum Unit Connecting Easement. The Owner of the Museum Unit shall have, and there are hereby reserved by Declarant therefor, non-exclusive easements over and across and through common area of the Commercial Condominium Project and the structure of the Building as necessary and required to connect the Museum Unit with the adjoining museum building owned by the Owner of the Museum Unit for ingress and egress to the adjoining museum building, for the period of time during which the adjoining museum building is owned by the Owner of the Museum Unit and said building is used as a not for profit museum in concert with the Museum Unit in an integral and integrated manner.

2.20. Hotel Unit Connecting Easement. The Owner of the Hotel Unit, and the affiliates of such Owner, and any operator of a hotel within the Hotel Unit, shall have, and there are hereby reserved by Declarant therefor, non-exclusive easements over and across and through common area of the Commercial Condominium Project and the structure of the Building as necessary and required to connect with the Hotel Unit with the portions of the adjoining building owned by said Owner of the Hotel Unit, or its affiliates, or hotel operator, for ingress and egress to the adjoining building, and for installation of utility lines, and other improvements, for the period of time during which the adjoining building, or any portion thereof, is owned by the Owner of the Hotel Unit, an affiliates thereof, or by an operator of the hotel, and said adjoining building, or any portion thereof, is used in concert with the Hotel Unit in an integral and integrated manner as part of the operations of the Hotel Unit as a hotel enterprise.

2.21. Retail Unit. The Retail Unit in the Commercial Component will be subject to a long term lease to the Redevelopment Agency, which agency will lease the Retail Unit back to Declarant or others.

2.22. Declarant’s Reserved Rights and Easement for Communications Easement Areas. There is hereby reserved to Declarant, with the right to assign and transfer any of such rights, privileges and easements, the continuing rights, privileges and easements over and across the roof of the Center, the Center Association Common Areas and Center Common Easement Areas within the Center for the access to and the location, installation, maintenance, repair and replacement of communications devices and systems and security systems, antennas,

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receiving devices, transmission devices and similar types of equipment and services (“Communications Systems”), and over, across and through the Center Association Common Area and the Center Common Easement Areas of the Center that contain or provide ducts, chases, risers, closets and/or mechanical rooms for installation, maintenance, repair and replacement of wiring, cable, equipment or other devices, items and material for use with or connection of any such Communications Systems. Declarant shall have the right to license, grant, lease, assign, convey or otherwise transfer or permit use of such Communications Systems and the rights over and across such Center Association Common Area and Center Common Easement Areas relative to such Communications Systems. The use of such Communications Systems shall not materially interfere with the general operations of the Center, or of any Condominium Project or Condominium Unit, or the use of the Center Association Common Area, Center Common Easement Areas or Joint Use Easement Areas by the Center Association, any Condominium Association or any Owner of a Condominium Unit, to the extent that such Association or Owner has such rights of use under this Center Declaration. No Association nor any Owner shall interfere with the rights of the Declarant hereunder or of any person or entity to which Declarant transfers such rights.

2.23. Limitations on Rights in Center Association Common Areas or Center

Common Easement Areas. The rights of any Condominium Owner or any Condominium Association in and to Center Association Common Areas or the Center Common Easement Areas shall be subject to the following provisions:

(1) The rights of Condominium Owners in and to the Center Association Common Area and Center Common Easement Areas shall be for a term and duration coextensive with the Condominium Owner's title or interest in and to a Condominium Unit; (2) The right of the Center Association to discipline any Owner for any infraction of this Center Declaration, the Center Bylaws, or Center Rules in accordance with the provisions of this Center Declaration;

(3) The access rights of the Center Association to maintain, repair or replace improvements or real or personal property located in the Center Association Common Areas or Center Common Easement Areas as provided in Sections 2.14 and 5.2.5 and in Article 9;

(4) The rights and duties of the Center Association to grant easements under, in, upon, across, over, above or through any portion of the Center Association Common Areas or Center Common Easement Areas (i) to permit the beneficial development and use of the Center Association Common Areas or Center Common Easement Areas in accordance with this Center Declaration, as determined by the Center Board, and (ii) for any required or appropriate utility for the benefit of the Center Association Common Areas or Center Common Easement Areas or any Parcel.

(i) The size, scope and location of any easements to be established after the date of recordation of this Center Declaration shall be determined by the Center Board in a reasonable and non-discriminatory manner to enhance the efficient, cost-effective use of the easements, and the operation of the Center, and each Component in the Center, to comply with applicable laws and permits, and to preserve the aesthetic appearance of the Center.

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(5) Easement rights of Declarant and its assignees and successors as to any Condominium Project for work necessary to complete development and construction of the Center and the Condominium Projects and as further set forth in Sections 2.9, 2.10, and 2.11 of this Center Declaration.

(6) Easement rights of Declarant and its assignees and successors as to any Condominium Project, and the Condominium Associations to repair, replace or restore the improvements situated within a Building Parcel, as provided in Sections 2.9, 8.1, 8.2, 9.1, 9.2, 9.3 and 10.1;

(7) Easement rights of Declarant and its assignees and successors as to any Condominium Project, the Condominium Associations and Condominium Owners to repair, replace or restore the improvements situated within a Condominium Unit within a Building Parcel, as provided in Sections 2.9, 8.1, 8.2, 9.1, 9.2, 9.3 and 10.1; and

(8) The rights of the Center Association, the Condominium

Associations, the Declarant and Condominium Owners to install, repair or replace utilities within the Center Association Common Areas or Center Common Easement Areas as provided in Sections 2.13, 5.2.1, 5.2.2 and 8.2.

(9) The rights of the Center Association and Declarant to limit the rights of access to, over and across those portions of the Center Association Common Area as the Center Association Board or Declarant determine to be required for reasonable operation and management of the Center. ARTICLE 3. CENTER ASSOCIATION MEMBERSHIP, VOTING RIGHTS AND ADMINISTRATION

3.1. Center Association. There has been formed a Center Association for the operation and administration of the Center, and all of the improvements within the Center, except for those improvements and other matters that, pursuant to this Center Declaration, are to be operated and administered by the Condominium Associations for each of the Building Parcels or by Condominium Owners. The Center Association, through the Center Board, shall act and serve, on behalf of the Owners in the Center, as the Market Street Parcel Owner under the provisions of the CB-1 REA.

3.2. Membership. Each of the Condominium Associations shall be a member of the Center Association.

3.3. Transferred Membership. Membership in the Center Association shall not be transferred, encumbered, pledged, or alienated in any way. Any attempt to make a prohibited transfer is void. No member may resign its membership.

3.4. Voting Rights. The voting rights of the Members of the Center Association shall be determined and allocated as set forth in the Center Bylaws. The votes for each of the Condominium Projects on any matter which is to be voted upon by the Members of the Center Association pursuant to this Center Declaration shall be determined, cast and administered as set forth in the Bylaws of the Center Association.

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3.5. Center Board. The Center Board shall consist of nine (9) directors. The board of directors of the Residential Condominium Association shall elect three (3) members to the Center Board and the board of directors of the Commercial Condominium Association shall elect six (6) members to the Center Board as set forth in the Center Bylaws.

3.6. Center Association to Manage Center Association Common Areas and Center Common Easement Areas. The management and operation of the Center, the Center Association Common Areas and the Center Common Easement Areas within the Center, and those other portions of the Center that are expressly included as being the responsibility of the Center Association, excluding those portions of the Center to be maintained and operated by the Condominium Association, or by a Condominium Owner or Owners, under this Center Declaration, shall be vested in the Center Association and the Center Board, in accordance with the provisions of this Center Declaration, and the Center Articles and Center Bylaws. ARTICLE 4. ASSESSMENTS AND LIENS

4.1. Creation of Center Assessments. The Center Association shall establish, levy and collect the Center Assessments to pay for the costs and expenses of the activities, operations and responsibilities of the Center Association under this Center Declaration. The Center Assessments shall be levied to and against each of the Building Parcels and the Condominium Associations that are responsible for the operation of the Condominium Project situated within the respective Building Parcels. Each Condominium Association, and each Condominium Owner of a Condominium Unit in a Condominium Project, including the Declarant for all Condominium Units owned by the Declarant, hereby covenants and agrees, as follows:

(1) for the Condominium Association to pay to the Center Association the Annual Center Assessments or charges, and Special Center Assessments levied to said Condominium Association by the Center Association for purposes permitted herein as the Center Assessments, such Center Assessments to be established and collected as hereinafter provided, and

(2) to allow the Center Association to enforce any assessment liens and rights established hereunder and by the Condominium Declarations for enforcement of the payment of the Center Association Assessments to the Center Association by nonjudicial proceedings under a power of sale or by any other means authorized by law.

4.1.1. Each Condominium Association shall allocate and assess the amount of such Center Assessments assessed to the respective Condominium Association to the Condominium Units within the Condominium Project governed by said Condominium Association as set forth in the Condominium Declaration for the respective Condominium Project; shall collect such allocated and assessed portion of the Center Assessment from each Condominium Unit which is assessable in the respective Condominium Project and shall pay to the Center Association the Center Assessment that has been assessed to such Condominium Association.

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4.1.2. The proportionate amount of each such Center Assessment, as assessed as part of the Condominium Association’s assessments to a Condominium Unit, together with interest, late charges, collection costs, and reasonable attorneys' fees, shall also be the personal obligation of each person who was the Owner of a Condominium Unit in the Condominium Project at the time when the Center Assessment fell due. The personal obligation for delinquent Center Assessments shall pass to such Owner's successors in title whether or not expressly assumed by them. No Owner of a Condominium Unit in a Condominium Project shall be exempt from liability for contribution towards the Common Expenses by waiver of the use or enjoyment of any of the Center Association Common Areas, Center Common Easement Areas, or other portions of the Center, or by the abandonment of such Owner's Condominium Unit.

(a) Notwithstanding the foregoing, or any other provision of this Center Declaration, the Museum Unit shall not be subject to the obligation or lien of any such proportionate amount of the Center Assessment as long as the Museum Unit has been conveyed to the adjoining Owner of the adjoining museum parcel, the Declarant, or its successors, has not exercised its right of reverter as expressed in the CB-1 REA, and the Museum Unit is used for museum purposes consistent and in compliance with the terms of the Commercial Declaration and the CB-1 REA. Notwithstanding anything otherwise stated in this Center Declaration, or in the Center Bylaws, as long as the Museum Unit is exempt from Center Assessments, no vote for matters or actions which require a vote of the Members of the Center Association shall be attributed to the Museum Unit by the Commercial Condominium Association.

(b) Notwithstanding the foregoing, or any other provision of this Center Declaration, the Retail Unit shall not be subject to the obligation or lien of any amount of the Center Assessment that is assessed or levied for payment of or reimbursement for any amount of the CB-1 Assessments allocated, charged or assessed to the Commercial Condominium Association. Except for the foregoing, the Retail Unit shall be subject to the obligation or lien of the Center Assessments.

(c) Except as provided in subparagraphs (a)and (b), above, If a Condominium Association should fail to allocate, levy, assess or collect the Center Assessment to and against the Condominium Units in the Condominium Project over which the Condominium Association has responsibility and jurisdiction, the Center Board shall have the authority to allocate, levy, assess and collect such Center Assessment to and against each Condominium Unit in the Condominium Project which is assessable in the Condominium Project under the Condominium Declaration, in accordance with the provisions of the Condominium Declaration for the respective Condominium Project.

(d) In no event shall the failure of the Residential Condominium Association, or any Condominium Owner in the Residential Condominium Project, to pay its share of the obligation of the CB-1 Assessment excuse the Center Association from paying, or serve as a defense for the Center Association for not paying, the full amount of the CB-1 Assessment as required under the CB-1 REA for the Center. The obligation of such full payment of the CB-1 Assessment by the Center Association shall be an obligation of all of the Condominium Units in the Commercial Condominium Project, with the exception of the Museum Unit and the Retail Unit as set forth in subsections (a) and (b) of this Section 4.1.2. The Commercial Condominium Association, and the Owners of the Condominium Units in the Commercial Condominium Project who have made payments of the CB-1 Assessments in amounts greater than their allocable share of the CB-1 Assessment because of any failure of the Residential Condominium Association to pay its share of the CB-1 Assessment, shall have the right to be reimbursed by the Residential Condominium Association, and the Residential

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Condominium Association shall have the obligation to so reimburse such party, for the amount which the Commercial Condominium Association, or such Owner, has paid for the portion of the CB-1 Assessment that has not been paid by the Residential Condominium Association, to the extent paid by the Commercial Condominium Association or such Owner of a Condominium Unit in the Commercial Condominium Project.

4.2. Purpose of Assessments. The Center Assessments levied by the Center Association shall be used exclusively for the payment of Common Expenses, including but not limited to, maintenance and operation of the Center Association Common Areas, Center Common Easement Areas and Joint Use Easement Areas of the Center by the Center Association, the fulfillment of the duties and obligations of the Center Association set forth in this Center Declaration, the payment of any CB-1 Assessments, the undertaking of the powers of the Center Association under this Center Declaration, and to promote the economic interests, recreation, health, safety, and welfare of all the Owners and occupants of the Center for the common good of the Center, and for reimbursement to the Center Association as Reimbursement Assessments as required by this Center Declaration.

4.3. Annual Center Assessments. The Center Board shall establish and levy Annual Center Assessments in an amount that the Center Board estimates will be sufficient to raise the funds needed to perform the duties of, and fulfill the obligations of, the Center Association during each fiscal year. The Center Board may in its discretion provide that such Annual Center Assessment shall be due and payable in installments over such periods as the Center Board may prescribe.

4.3.1. The Annual Center Assessment shall include a portion for reserves in

such amounts as the Center Board in its discretion considers appropriate to meet the costs of maintaining, replacing and repairing the improvements and real and personal property that the Center Association is obligated to maintain, repair and replace. Reserve funds of the Center Association shall be deposited in a separate account.

4.3.2. Increases in the Annual Center Assessments levied to the Residential Condominium Association, as allocated to and levied against a Condominium Unit in the Residential Condominium Project for any fiscal year, except as provided in section 4.4 of the Residential Condominium Declaration, shall not be greater than twenty percent (20%) of than the Regular Assessment levied by the Condominium Association against such Condominium Unit for the immediately preceding fiscal year without the approval of the members of the Center Board who are the elected representatives of the Residential Condominium Association, as determined by section 4.4 of the Residential Condominium Declaration.

4.3.3. Increases in the Annual Center Assessments levied to the Commercial Condominium Association, as allocated to and levied against a Condominium Unit in the Commercial Condominium Project for any fiscal year, except as provided in section 4.4 of the Commercial Condominium Declaration, shall not be greater than twenty percent (20%) of than the Regular Assessment levied by the Condominium Association against such Condominium Unit for the immediately preceding fiscal year without the approval of the members of the Center Board who are the elected representatives of the Commercial Condominium Association, as determined by section 4.4 of the Commercial Condominium Declaration.

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4.4. Special Center Assessments. The Center Board, at any time, may levy a special assessment (“Special Center Assessment”) in order to raise funds for unexpected operating or other costs, insufficient operating or reserve funds, or such other purposes as the Center Board in its discretion considers appropriate.

4.4.1. Allocation of Special Center Assessments. Special Center Assessments shall be allocated between the Condominium Associations in the same manner as Annual Center Assessments, except in the case of a Special Center Assessment for a Joint Use Easement Area or Cost Center Services, which shall be allocated as a Cost Center Allocation pursuant to Section 4.5.1 and Section 4.5.2, hereof, or for a Reimbursement Assessment.

4.4.2. Limitation on Special Center Assessments on Residential Condominium Association. Except in the case of a Reimbursement Assessment, any Special Center Assessment by the Center Association to defray the cost of any action or undertaking of the Center Association levied to Residential Condominium Association with respect to the Residential Condominium Project’s share and allocation of a Special Center Assessment may not in the aggregate exceeds five percent (5%) of the budgeted gross expenses of the Residential Condominium Association for that fiscal year without the vote or written approval of the members of the Center Board who are the elected representatives of the Residential Condominium Association. Notwithstanding the foregoing, the Center Board, may, without Residential Condominium Association membership approval, increase Annual Center Association’s Assessments or levy a Special Center Assessment necessary for an emergency situation, as described and defined in the Section 4.4 of the Residential Declaration.

4.4.3. Limitation on Special Center Assessments on Commercial Condominium Association. Except in the case of a Reimbursement Assessment, any Special Center Assessment by the Center Association to defray the cost of any action or undertaking of the Center Association levied to Commercial Condominium Association with respect to the Commercial Condominium Project’s share and allocation of a Special Center Assessment may not in the aggregate exceeds five percent (5%) of the budgeted gross expenses of the Commercial Condominium Association for that fiscal year without the approval by vote or written assent of the members of the Center Board who are the elected representatives of the Commercial Condominium Association. Notwithstanding the foregoing, the Center Board, may, without Commercial Condominium Association membership approval, increase Annual Center Association’s Assessments or levy a Special Center Assessment necessary for an emergency situation, as described and defined in the Section 4.4 of the Commercial Declaration.

4.4.4. Reimbursement Assessments. The Center Board may levy a Reimbursement Assessment against any Owner to reimburse the Center Association for costs incurred by the Center Association in the repair of damage to the Center as to which the Center Association has responsibility for maintenance and repair for which such Owner or such Owner's guests or tenants were responsible and in bringing such Owner and his Condominium Unit into compliance with the provisions of the Center Documents in the amount required to reimburse the Center Association for the actual costs incurred and the amounts incurred to enforce the Center Association’s rights under this Center Declaration as are then permitted by law. Reimbursement Assessments shall be due and payable when levied by written notice to the Owner against who the Reimbursement Assessment is levied, and shall be delinquent if not paid within thirty (30) days of the date of being levied.

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4.5. Division of Assessments. Except for Reimbursement Assessments as provided in Section 4.4.4, and except for the costs of Joint Use Easement Areas and Cost Center Services as set forth in Section 4.5.1 and Section 4.5.2, all Center Assessments, both Annual Center Assessments and Special Center Assessments, shall be levied between the Condominium Associations in the Assessment Percentages set forth in Exhibit "A" attached hereto as the General Allocation of Center Assessments.

4.5.1. Cost Centers for Joint Use Easement Areas. Notwithstanding the provisions of Section 4.5, where a Joint Use Easement Area is used by less than all of the Components or by some but not all of the Condominium Units in the Center, or where the use of such Joint Use Easement Area by one Component or one or more Condominium Units is disproportionate to the use made by other Condominium Units or Components of the Project, the Center Association shall levy and allocate the Annual Assessments and any Special Center Assessments for such Joint Use Easement Area on the basis of the projected use and benefit of such Joint Use Easement Area to the Condominium Association and/or the Condominium Units that use and benefit from the Joint Use Easement Area in accordance with the projected amount of use made and the benefit received by each Component and each Condominium Unit that are serviced by or have the use and benefit of the Joint Use Easement Area as a “Cost Center Allocation”. The areas and items described on Exhibit “D” are Joint Use Easement Areas, the projected costs for which shall be allocated by the Center Board among or between the parties who use and have benefit of such Joint Use Easement Area as Cost Center Allocations in the percentage allocations set forth and described in Exhibit “D-1”. The allocations set forth as Cost Center Allocations for a particular Joint Use Easement Area set forth on Exhibit “D-1” shall be subject to review and adjustment by the Center Board, periodically as the Center Board determines necessary and appropriate, to reflect its determination of the relative use and benefit received by each Component or Condominium Unit served by or having the use and benefit of the Joint Use Easement Area.

4.5.2. Cost Center Services. Notwithstanding the provisions of Section 4.5, where a service or activity of the Center Association as specified in this Center Declaration benefits one of the Components disproportionately, or where the benefits of any such service or activity of the Center Association to a Condominium Unit or to certain of the Condominium Units is disproportionate to the benefit to other Condominium Units, the Center Association shall levy and allocate the Annual Assessments and any Special Center Assessments for Cost Center Services on the basis of the projected use and benefit of such services or activities to the Condominium Association and/or the Condominium Units that obtain the use and benefit of such services or activities in accordance with the projected amount of use made and the benefit received by each Component and each Condominium Unit that are serviced by or have the use and benefit of the Cost Center Services as a “Cost Center Allocation”. The items described on Exhibit “E” are Cost Center Services, the projected costs for which shall be allocated by the Center Board among or between the parties who use and have benefit of such Cost Center Services as Cost Center Allocations in the percentage allocations set forth and described in Exhibit “E-1”. The allocations set forth as Cost Center Allocations for a particular Cost Center Service set forth on Exhibit “E-1” shall be subject to review and adjustment by the Center Board, periodically as the Center Board determines necessary and appropriate, to reflect its determination of the relative use and benefit received by each Component or Condominium Unit served by or having the use and benefit of the Cost Center Service.

4.5.3. Utility Costs.

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(a) If possible, separate meters shall be utilized for Utilities provided to the Center Association, to each Condominium Project and each Condominium Unit for utility services to the Center, and the costs of Utility services shall be allocated to the Condominium Associations, the Center Association, and the Condominium Owners in accordance to the actual use as measured by such meters.

(b) If Utility services provided to the Center are not separately metered by the utility company that furnishes such utility services to the Center to the separate user, where reasonably feasible, the Center Association shall install, operate and maintain utility usage measuring equipment to measure and monitor the use of such utility services by the various Condominium Associations and Condominium Units and different segments of the facilities within the Center for which there may be a variation in such use that warrants allocation of the costs on the basis of a Cost Center Allocation rather than a General Allocation of Assessments. The Center Association shall charge the users of such utility serves that are so measured and monitored as a Cost Center Allocation of Annual Center Assessments in accordance with the measured and monitored use. The Condominium Associations shall charge such utility costs to the Condominium Units in their respective Condominium Projects in accordance with the measured and monitored use of each such Condominium Unit. All allocations of cost of utility services shall be in accordance with the actual costs thereof as are charged or levied to the Center Association, and in accordance with all requirements of applicable laws, rules and regulations then in effect with respect to allocation and reimbursement of the costs of utility services.

(c) If any costs of any utility service furnished by or through the Center Association are not so separately metered or measured and monitored, then the Center Board shall equitably allocate the cost of any such Utilities that are not separately metered in accordance with the Center Board’s reasonable estimate of actual usage of such utility services by the Owner or Owners who make use of such utility service, and in accordance with all requirements of applicable laws, rules and regulations then in effect with respect to allocation and reimbursement of the costs of utility services. The Center Association shall project an allocation of such utility usage on an annual basis. The projections and allocations by the Center Association based upon projections of usage shall be evaluated by the Center Board no less frequently than once every three years to reflect its estimates of actual usage. If there is any disagreement between the Center Association and a Condominium Association or with any Condominium Owner regarding such projections and allocations, such dispute shall be submitted to Arbitration pursuant to Section 11.11.

4.6. Date of Commencement of Annual Assessments; Due Dates. Unless the Declarant agrees to an earlier date of commencement, the Annual Center Assessments provided for herein shall commence as to all Building Parcels, Condominium Associations, Condominium Projects and Condominium Units covered by this Center Declaration on the first day of the month after such time as the first Building Parcel or Condominium Unit in a Building Parcel is transferred, conveyed or demised to an Owner other than the Declarant or an Affiliate of Declarant. For the purposes of this Section 4.6, an Affiliate of Declarant shall mean a corporation, partnership, limited liability company, trust or other legal entity in which a majority interest is held by Declarant or an affiliate of Declarant.

4.6.1. Subject to the provisions of Section 4.3 hereof, the Center Board shall use its best efforts to determine and fix the amount of the Annual Center Assessment against each Condominium Association, and shall send written notice thereof to each Member Association at least sixty (60) days in advance of each Annual Center Assessment period,

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provided that failure to comply with the foregoing shall not affect the validity of any Center Assessment levied by the Center Board. The due dates shall be established by the Center Board. The Center Association shall, upon demand, and for a reasonable charge, furnish a certificate signed by an officer of the Center Association setting forth whether the Center Assessments on a specified Building Parcel have been paid. Such a certificate shall be conclusive evidence of such payment.

4.7. Payment of Assessments. Annual Center Assessments shall be due and payable in equal monthly installments unless the Center Board directs otherwise. Special Center Assessments may be due and payable in one (1) payment or periodically as the Center Board shall direct.

4.8. Effect of Nonpayment of Center Assessments. Any Center Assessment not paid within fifteen (15) days after the due date shall be delinquent, shall bear interest at the rate of twelve percent (12%) per annum, commencing thirty (30) days after the due date until paid, and shall incur a late payment penalty in an amount to be set by the Board from time to time, not to exceed the maximum permitted by applicable law.

4.9. Transfer of Condominium Unit by Sale.

4.9.1. If a Condominium Unit is transferred, then the transferor shall remain liable to the Center Association for all unpaid Center Assessments against the Condominium Unit through and including the date of the transfer. The transferee shall be entitled to a statement from the Center Association, dated as of the date of transfer, setting forth the amount of the unpaid Center Assessments against the Condominium Unit to be transferred and the Condominium Unit shall not be subject to a lien for unpaid Center Assessments in excess of the amount set forth in the statement, provided, however, the transferee shall be liable for any Center Assessments that become due after the date of the transfer.

4.9.2. The sale, transfer or demise of any Condominium Unit in the Center shall not affect any assessment lien in favor of the Center Association or the Condominium Association for the Condominium Project in which the Condominium is located. However, the sale or transfer of any Condominium Unit pursuant to foreclosure of a First Mortgage shall extinguish the lien of such assessments (including fees, late charges, fines or interest levied in connection therewith) as to payments which became due prior to such sale or transfer (except for assessment liens recorded prior to the date of the recordation of the mortgage). No sale or transfer shall relieve such Condominium Unit from liability for any assessments thereafter becoming due or from the lien thereof.

4.10. Enforcement and Remedies. If any Center Assessment (including an Annual Center Assessment, a Special Center Assessment or Reimbursement Assessment) is delinquent, the Center Association shall be entitled to the following separate and cumulative rights and remedies, which the Center Association shall have the right to select and use in any order as it determines reasonable and prudent, in the discretion of the Center Board, without exclusion, waiver or prejudice:

4.10.1. The Center Association shall have the continuing right to bring legal

action for collection of such delinquent Center Assessment against the Condominium Association which is delinquent, or against any Owner of a Condominium Unit in a Condominium Project who is delinquent for nonpayment of such Center Assessment or their respective share of such Center Assessment as a debt and obligation of the Condominium Association or Condominium

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Owner that has not paid and is so delinquent with respect to payment of such Center Assessment or respective share of such Center Assessment.

4.10.2. The Center Association shall have the continuing right to levy, enforce and collect any Center Assessments to be levied, enforced and collected by a Condominium Association for a Condominium Project in the Center which is delinquent in whole or part in payment of such Center Assessment. The Center Association shall, by this Center Declaration, be deemed to have been assigned, and to have a perfected interest in and to, all rights to levy all assessments, liens and funds which are now, and in the future to be, paid by the Condominium Owners in the respective Condominium Projects to each of the Condominium Associations. The rights to impose and enforce assessments and liens against any and all Owners of a Condominium Unit in a Condominium Project in the Center are hereby assigned to the Center Association by each of the Condominium Associations for and to the extent that any Condominium Owner has not paid to the Condominium Association its, his or her assessments by and pursuant to the Condominium Declaration, and for and to the extent that the Condominium Association has failed to pay to the Center Association the Center Assessments levied by the Center Association, for and in the amount equal to the prorata share of the Center Assessments that have or should have been allocated, assessed, collected and enforced by the Condominium Association to such Condominium Owner.

4.10.3. Each of the Condominium Associations, and each member thereof, agrees to, and does hereby, pledge and grant to the Center Association a continuing security interest in and to the respective Condominium Association’s assessments, funds, accounts, enforcement rights and lien rights [hereinafter referred to as the “Assigned Interests”] as collateral for payment by the Condominium Association to the Center Association of the Center Assessments levied to and against the Condominium Association. The Center Association shall be entitled to file, record or otherwise perfect its interests in and as to any such Condominium Association’s Assigned Interests as may be required, allowed or permitted under applicable law. Each Condominium Association agrees that at any time and from time to time, at the expense of such Condominium Association, such Condominium Association will promptly execute and deliver all further instruments and documents, and take all further action, that may be necessary or desirable, or that the Center Association may request, in order to perfect, protect and maintain the security interest granted hereby or to enable the Center Association to exercise and enforce its rights and remedies pursuant to the terms hereof with respect to any Assigned Interests assigned and pledged hereunder. The Center Association may exercise in respect of the Assigned Interests, in addition to other rights and remedies provided for herein or otherwise available to it, all the rights and remedies provided a secured party upon the default of a debtor under the Uniform Commercial Code in effect in the State of XXXXXXXXX at that time.

4.10.4. The Center Association shall be entitled to record a notice of delinquent assessment and establish a lien for payment of the prorata share of unpaid Center Assessments which are allocated or which should be allocated to the Condominium Units in a Condominium Project against each Condominium Unit in a Condominium Project which has not paid its Center Assessment, which lien shall be prior and superior to all other liens except (1) all taxes, bonds, assessments and other levies which, by law, would be superior thereto, and (2) the lien or charge of any First Mortgage of record (meaning any recorded mortgage or deeds of trust with first priority over other mortgages or deed of trust) made in good faith and for value as to any Condominium Unit in such Condominium Project as to which the Center Assessment is delinquent. The notice of delinquent assessment shall state the amount of the Center Assessment, collection costs, attorneys' fees, late charges and interest, a description of the Condominium Unit against which the Center Assessment and other sums are levied, the name of

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the record Owner or Owners, and the name and address of the trustee authorized by the Center Association to enforce the lien by sale. The notice shall be signed by any officer of the Center Association or any management agent retained by the Center Association. If a Condominium Owner in the Condominium Project has paid its, his or her assessments to the Condominium Project’s Condominium Association, and such amount or amounts of such assessment that are allocated or should be allocated as the prorata share of the Center Assessments for such Condominium Unit have been paid to the Center Association, then the Center Association shall release and exclude from any lien or liens to be imposed by the Center Association the Condominium Unit or Condominium Units that have so duly paid the appropriate prorata amount of the Condominium Association assessments to the Center Association.

4.10.5. Any lien for a Center Assessment may be enforced in any manner permitted by law, including sale by the court, sale by the trustee designated in the notice of delinquent assessment, or sale by a trustee substituted pursuant to XXXXXXXXX Civil Code § 2934(a). Any sale by the trustee shall be conducted in accordance with the provisions of §§ 2924, 2924b, 2924c, 2924f, 2924g, 2924h and 2924j of the XXXXXXXXX Civil Code, including any successor statutes thereto, applicable to the exercise of powers of sale in mortgages and deeds of trust, or in any other manner permitted by law. Nothing herein shall preclude the Center Association from bringing an action directly, or by an assignment of such rights, against a Condominium Association or any Owner of a Condominium Unit for breach of any personal obligation to pay Center Assessments or their share of Center Assessments.

4.10.6. The Center Association, acting on behalf of the Owners, shall have the power to bid for any Condominium Unit situated therein at foreclosure sale on the assessment liens provided in this Center Declaration or under any Condominium Declaration, and to acquire and hold, lease, mortgage and convey the same. During the period a Condominium Unit is owned by the Center Association, following foreclosure:

(a) no Center Assessment shall be assessed or levied on the Building Parcel or Condominium Unit so acquired by the Center Association;

(b) each other Condominium Unit within a Building Parcel shall be charged, in addition to its usual share of the Center Association Assessment to be allocated to it, its share of the Center Assessment that would have been charged to the acquired Condominium Unit had it not been acquired by the Center Association as a result of foreclosure; and

(c) After acquiring title to such Condominium Unit at foreclosure sale following notice and publication, the Center Association may execute, acknowledge and record a deed conveying title to such Condominium Unit, which deed shall be binding upon all Owners, their successors, and all other parties.

4.10.7. Suit to recover a money judgment for unpaid Center Assessments, or other common expenses of the Center Association, and attorneys' fees shall be maintainable without foreclosing or waiving the any lien in favor of the Center Association securing the same.

4.11. Unallocated Taxes. If appropriate, the Condominium Associations and the Center Association shall file an application for segregation and division of real estate taxes for the Center with the County assessor's office to obtain separate real estate assessments and tax bills for each of their respective interests the Building Parcels, and with respect to the Condominium Units. When such separate tax bills are obtained and received, each Owner of a Condominium Unit in a Condominium Project shall pay the real estate taxes, special

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assessments and other taxes and assessment of every kind and nature levied against the Condominium Unit held by the Owner.

4.11.1. In the event that any taxes are assessed against the Center Association Common Areas or Center Common Easement Areas, or the personal property of the Center Association, rather than being separately assessed to the Building Parcels or the Condominium Units in the Center, said taxes shall be included in the Center Association Assessments made under the provisions of Section 4.1 and, if necessary, a Special Center Assessment may be levied by the Center Association to the Condominium Associations in an amount equal to said taxes, to be paid in two (2) installments, thirty (30) days prior to the due date of each tax installment (or in more than two installments if the taxes are collected in more than two installments under the applicable law). Each Condominium Owner's portion of such taxes shall be allocated by the respective Condominium Associations in a fair and reasonable manner.

4.12. Obligation for Common Area Maintenance Costs Under CB-1 REA. The Common Area Maintenance Costs as defined and allocated to the Center Association under the CB-1 REA shall be a Common Expense of the Center Association and an allocable share of such Common Expense shall be paid by Assessments of the Condominium Associations within the Center, including the individual Condominium Units in the Residential Condominium Project, through assessments made by the Residential Condominium Association. The Owners of the Condominium Units included within the Center, other than the Owners of the Excluded Units, as defined herein and in the CB-1 REA, shall be jointly and severally liable for the Center Association’s share of all costs and expenses under the CB-1 REA, including, without limitation, the Center Association’s share of Common Area Maintenance Costs and Shared Truck Facilities Costs as defined in the CB-1 REA, and shall be jointly and severally liable for all obligations of the Center Association as a Party under the CB-1 REA. Notwithstanding the provision of Section 8.1 of the CB-1 REA, the lien with respect to the Center Association provided for under said Section 8.1 shall attach to each Condominium Unit in the Center and all Improvements thereon, excepting (1) the Retail Unit (2) each of the Condominium Units in the Residential Condominium Project and (3) the Museum Unit (collectively, “the Excluded Units”) to secure all obligations under the CB-1 REA of the Center, as a Party under the CB-1 REA, to the other Parties under the CB-1 REA and the Redevelopment Agency.

ARTICLE 5. DUTIES AND POWERS OF THE CENTER ASSOCIATION

5.1. Duties. In addition to the duties enumerated in the Center Articles and Center Bylaws, or elsewhere provided for in this Center Declaration, and without limiting the generality thereof, the Center Association shall perform the duties set forth in this Section 5.1.

5.1.1. Maintenance by Center Association. The Center Association shall inspect, maintain, repair and replace the elements of the Center which constitute the Center Association Common Areas, Center Common Easement Areas and Joint Use Easement Areas as are more particularly described in Subsections 5.1.2, 5.1.3, 5.1.4 and 5.1.5. The costs of the maintenance, repair and replacement of these areas shall be allocated by the Center Association on the following basis:

(a) Center Association Common Areas and Center Common Easement Areas shall be operated, maintained, repaired and replaced by the Center Association with the costs therefore assessed as General Allocations of Center Assessments;

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(b) Joint Use Easement Areas shall be operated, maintained, repaired and replaced by the Center Association with the costs therefore assessed as Cost Center Allocations.

5.1.2. Center Association Common Areas. The Center Association shall be responsible for the operation and administration of the Center Association Common Areas and the maintenance, repair and replacement of all improvements and facilities within the Center Association Common Areas. The costs of operation, administration, maintenance, repair and replacement of the Center Association Common Areas shall be assessed by the Center Association to the Condominium Associations as General Allocation of Center Assessments.

5.1.3. Center Common Easement Areas. The Center Association shall be responsible for the operation and administration of the Center Common Easement Areas and the maintenance, repair and replacement of the improvements and facilities located within the Center Common Easement Areas. The costs of operation, administration, maintenance, repair and replacement of the Center Common Easement Areas shall be assessed by the Center Association to the Condominium Associations as General Allocation of Center Assessments.

5.1.4. Joint Use Easement Areas. The Center Association shall be responsible for the operation and administration of the Joint Use Easement Areas and the maintenance, repair and replacement of the improvements and facilities located within the Joint Use Easement Areas. The costs of operation, administration, maintenance, repair and replacement of the Joint Use Easement Areas shall be assessed by the Center Association to the party or parties who are granted the use and benefit of the Joint Use Easement Area as a Cost Center Allocation of the Center Assessments as set forth in Section 4.5.1.

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5.1.5. Center Association Maintenance. The Center Association shall inspect, maintain, repair and replace all improvements within the Center Association Common Areas, the Center Common Easement Areas, and the Center Structural Elements, except as expressly provided otherwise in this Center Declaration, including but not limited to:

(a) the porte cochere, driveways, walkways, and courtyards located within the Center Association Common Areas or Center Common Easement Areas;

(b) all heating, ventilating and air conditioning systems within the Center

Association Common Areas, the Center Common Easement Areas or the Joint Use Easement Areas;

(c) all elevators in the Center, except for those elevators which only

service the Sports Club Unit, which shall be maintained by the Owner of the Sports Club Unit. Where an elevator or elevators serve some Units or some Components in the Center, but not all Units or all Components, [such as the elevators that jointly serve the Hotel Unit and the Residential Component] such elevators shall be Joint Use Easement Areas (which elevators shall be maintained, repaired and replaced by the Center Association with the costs of such maintenance, repair and replacement being shared by the Condominium Units or Components that have the use and benefit of said elevator or elevators as a Cost Center Allocation of Center Assessments. In particular, the costs of maintenance, repair and replacement of the elevators that serve only the Residential Component and the Hotel Unit shall be apportioned between the Owner of the Hotel Unit and the Residential Condominium Association based upon a reasonable determination of the relative use of such elevators between Residential Component and the Hotel Unit by the Center Board;

(d) all central water heating boilers located within the Center; (e) the roof structures of the Center; (f) the exterior building surfaces, window walls, curtain walls, glazing and

skin of the Building structure of the Center (including, if required, painting, caulking, water-proofing replacement, and repair of damage)(excluding replacement of windows if such are damaged or broken by a Condominium Owner, or the tenants, guests or invitees of the Condominium Owner, in which event, the window damaged or broken window shall be replaced by the Center Association at that Condominium Owner’s expense as a Reimbursement Assessment;

(g) the foundations of the Center and the drainage facilities and

improvements for the Center; (h) all fire detection and suppression systems, and life-safety systems in

the Center, except for internal security systems which are limited to a single Condominium Unit; (i) all central communications systems and equipment within the Center,

except for that equipment and those systems exclusively serving a particular Condominium Unit or Building Parcel;

(j) all lighting fixtures within the Center Association Common Areas;

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(k) the utility, sewer or drainage systems within the Center Association Common Areas and Center Common Easement Areas of the Center not maintained by a public entity, utility company, improvement district, a Condominium Association or Condominium Owner. With respect to utilities and fire suppression pipes, lines and conduits, where they penetrate a foundation, slab, wall, floor, or subfloor horizontally in proximity to a horizontal or vertical boundary line within the Center Association Common Areas or Center Common Easement Areas any Building Parcel ("point of penetration"), the Center Association shall maintain, repair and replace as needed, up to the point of penetration, and where the penetration is vertical, the Center Association shall maintain, repair and replace, as needed, up to the base of riser.

5.1.6. Maintenance and Operating Standards. All maintenance, repair and replacement of improvements and facilities of the Center by the Center Association hereunder shall conform to the physical standards of such maintenance, repair and replacement generally acceptable to first class, luxury, high-rise, mixed use residential and commercial buildings in the City of Zenith, and all operation, administration and management of the Center by the Center Association under this Center Declaration shall conform to the standards for the operation, administration and management of first class, luxury mixed use residential and commercial buildings and hotels in the City of Zenith.

5.1.7. The obligations of the Center Association to inspect, maintain, repair and replace improvements and facilities of the Center shall exclude those portions of the Center and the facilities and improvements of the Center which exclusively serve a Condominium Project or are located on or within an Exclusive Easement Area, which portions of the Center and the facilities and improvements shall be inspected, maintained, repaired and replaced by the Condominium Association of the Building Parcel and the Condominium Owner which are exclusively served by or which has rights of use of such Exclusive Easement Areas.

5.1.8. Exclusive Easement Areas. The responsibility the operation and administration of any Exclusive Easement Area, and the maintenance, repair and replacement of the improvements and facilities located within any Exclusive Easement Area, shall be that of the Condominium Unit, and the Owner thereof, or the Condominium Association, which has been granted the exclusive use and benefit of the particular Exclusive Easement Area. The costs of operation, administration, maintenance, repair and replacement of the Exclusive Easement Area shall be the responsibility and obligation of the Condominium Unit, or the Owner thereof, or the Condominium Association which has been granted the exclusive use and benefit of the particular Exclusive Easement Area.

5.1.9. Condominium Project Maintenance. Each Condominium Association shall maintain and repair its Condominium Project improvements, including, without limitation, the common area of the Condominium Project as defined in the Condominium Declaration for that Condominium Project, and shall be responsible for all other maintenance provided in Article 8 for those portions of the Center and the facilities and improvements which exclusively serve the Condominium Project, or as to which the Condominium Project has the exclusive rights of as Exclusive Easement Areas.

5.1.10. Willful or Negligent Acts or Omissions of Owners. The responsibility of the Center Association for maintenance and repair shall not extend to repairs or replacements arising out of or caused by the willful or negligent act or omission of an Owner, or its guests, occupants, tenants or invitees. Such repairs shall be made by the responsible Owner, provided the Center Board approves the person actually making the repairs and the method of repair. If the responsible Owner fails to take the necessary steps to make the repairs within a reasonable

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time under the circumstances, the Center Association may, at its discretion, make the repairs and charge the cost thereof to the responsible Owner as a Reimbursement Assessment, which cost shall bear interest at the rate of shall bear interest at the rate of twelve percent (12%) per annum (but no greater than the maximum rate allowed by law) from the date the cost was incurred by the Center Association until paid in full, or may undertake such other actions to remedy the situation as the Center Board determines under the circumstances to be reasonable and proper. If the Owner fails to make such payment, then the Center Association may make such payment and shall charge the responsible Owner as a Reimbursement Assessment, which charge shall bear interest at the rate of twelve percent (12%) per annum (but no greater than the maximum rate allowed by law) from the date the cost was incurred by the Center Association until paid in full.

5.1.11. Right of Hotel Unit Owner to Maintain Elements of the Center. If the Center Association Common Area, or those Center Structural Elements, Center Common Easement Areas or Joint Use Easement Areas that provide service, use or benefit to the Hotel Unit are not being adequately maintained or repaired in accordance with standards and requirements of this Center Declaration, and the Condominium Owner of the Hotel Unit (the “Hotel Unit Owner”) makes a determination that the maintenance and repair of any such area or facility materially affects the operation of the Hotel Unit, or causes the Hotel Unit to fail to comply with the standards of the Center Declaration, then the Hotel Unit Owner, or the operator of the Hotel Unit, after written notice to the Center Association, and the failure of the Center Association to reasonably and promptly undertake such maintenance or repair, may undertake such maintenance and repair at its initial expense. If the Hotel Unit Owner, or the operator of the Hotel, subsequently establishes that the obligations for undertaking and completing such maintenance and repair were those of the Center Association, then the Center Association shall reimburse the Hotel Unit Owner, or the operator of the Hotel, for its actual costs and expenses for undertaking and completing such maintenance and repair, including the costs of enforcing its rights, as a cost of the Center Association. The Arbitration procedures of this Center Declaration shall apply to any dispute between the Center Association and the Hotel Unit Owner, or the operator of the hotel, regarding the provisions of this subparagraph.

5.1.12. Insurance. The Center Association shall obtain and maintain the following insurance:

(a) a blanket policy of extended coverage fire and property damage insurance, in "all risk" form, insuring against loss (without deduction for depreciation) from physical damage to the Center (including all Center Improvements and all personal property and fixtures owned by the Center Association, excluding, however, interior improvements, fixtures, furniture, furnishings of Condominium Units and personal property of Owners of Condominium Units) with coverage of not less than the full replacement value of the Center Improvements (excluding foundations and footings, except for earthquake coverage), including costs due to changes in building codes, regulations and similar laws. Such fire and property damage insurance may contain reasonable "deductibles" approved by the Center Board, which in the case of fire and "all risk" insurance coverage shall not exceed one percent (1%) of the replacement cost of the property insured. Such insurance shall not cover any trade fixtures, inventory, or other personal property of Owners or occupants.

(10) The Center Association shall from time to time, and in no event less than every three (3) years, procure a Probable Maximum Loss Study (“PML Study”) for the Center Improvements, which PML Study must be conducted by a reputable seismic engineering company. The results of the PML Study, on an individual location basis [and for all locations insured in the same earthquake insurance policies], shall be used to determine the amount of earthquake coverage to be obtained by the Center Association. The amount of

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earthquake insurance shall be determined by adding the total of expected damage to all improvements in the Center subject to a single earthquake event together with the expected loss of income by way of Assessments to the Center Association for a single earthquake event. Earthquake insurance shall provide a limit with respect to income loss, based upon the rating of the Building which constitutes the Center, on an individual location basis, on the basis that (1) for “Very High” and “High Hazard Earthquake Risk” rated buildings the coverage shall be no less than twice the annual income amount of the Center Association through Assessments payable to the Center Association (“Association Income”); (2) for “Moderate Hazard” rated buildings coverage at 1½ times the annual Association Income, and (3) for lower risk rated buildings coverage at one times the annual Association Income. The total amount of earthquake insurance in limits shall be the sum of expected property damage, reconstruction cost and income loss to the Center Association through loss of Assessments to the Center Association, based on one earthquake event in one region, and shall be no less than $85,000,000, provided that there are no other properties insured under the insurance policy which insures the Center Improvements. Should the available aggregate limits of earthquake insurance be eroded by losses so that the remaining limits available to pay losses are less than 50% of the required limits, the Center Association shall purchase additional coverage to restore the available limits and aggregate limit not less than 85% of the required limits; provided however that if there are no other properties insured under the policy which insures the Center Improvements, then the required amount or restored insurance shall not be less than $72,250,000. Amounts of insurance required by this paragraph shall be solely for the protection of the Center Improvements. If the amounts of earthquake coverage required under the CB-1 REA (or the “Hotel Lease” defined therein) are greater than the amounts required herein, then the Center Association shall maintain such higher amounts of insurance.

(11) Casualty insurance obtained by the Center Association shall be all risk extended coverage, with vandalism and malicious mischief endorsements, insuring the Center Improvements, including the common areas of each Condominium Project and the structural elements of the Condominium Units (but excluding improvements made to the interior of Condominium Units which are not Center Structural Elements, and excluding fixtures, furniture, furnishings of a Condominium Unit and other personal property of the Owner of a Condominium Unit), together with all service machinery, equipment and facilities contained within the Center. Such casualty insurance shall cover the interests of the Center Association, the Condominium Associations, the Center Board and each of the boards of directors of the Condominium Associations, all Condominium Owners and First Mortgagees, as their respective interests may appear, in an amount equal to the full replacement value of the Center Improvements (exclusive of foundations and footings, except for earthquake coverage). Such casualty insurance shall include boiler and machinery insurance, elevator liability and collision insurance, plate glass insurance and water damage insurance to the extent the Center Board determines necessary, and such other insurance as the Center Board determines appropriate.

(12) All policies of casualty insurance shall contain to the

extent obtainable, waivers of subrogation and waivers of any defense based on [I] co-insurance; [2] other insurance [3] invalidity arising from any acts of the insured; [4] pro rata reduction of liability, and shall provide that such policies may not be cancelled or substantially modified without at least thirty (30) days’ prior written notice to all insureds, including all Condominium Owners and First Mortgagees. Duplicate originals or certificates of insurance of all policies of casualty insurance and of all renewals thereof, together with proof of payment of premiums shall be delivered to all Condominium Owners, and First Mortgagees who request such, at least ten days prior to expiration of the then current policies.

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(13) Whenever any improvements are or alterations are in the course of construction, the insurance required under this subsection, to the extent appropriate, shall be carried by the Center Association in builder's risk form written on a competed value basis, insuring against loss to the extent of at least the full replacement value of the Center Improvements (excluding foundations and footings, except for earthquake coverage) of that which is being covered. Prior to commencement of any alterations or construction within a Building Parcel, the Condominium Association or Owner undertaking such construction shall notify the Center Association in writing in sufficient time to allow the Center Association to obtain such insurance in builder's risk form for such alteration or construction work;

(b) a comprehensive general liability policy, occurrence version if obtainable, insuring the Center Association, its agents and representatives, the Condominium Associations, and the Owners and their respective tenants, against liability for personal injury, bodily injury, death and damage to property occurring or resulting from an occurrence in, on or about the Center Association Common Area or Center Common Easement Areas, or incident to the ownership or use of the Center Association Common Area or Center Common Easement Areas or any other Center Association owned or maintained real or personal property; the amount of comprehensive general liability insurance which the Center Association shall carry at all times shall be not less than $5,000,000 per occurrence; such insurance shall name the City and the parties to the CB-1 REA as additional insured and otherwise comply with the provisions and requirements relative to Liability Insurance set forth in the CB-1 REA and otherwise by the City;

(c) workers' compensation insurance for employees of the Center Association to the extent required by law; the Center Association shall obtain a Certificate of Insurance naming it as an additional insured in regard to workers' compensation claims from any independent contractor who performs any service for the Center Association, if practicable;

(d) fidelity bonds or insurance covering officers, directors, and employees of the Center Association that have access to any Center Association funds;

(e) officers and directors liability insurance for officers and directors of the Center Association;

(f) elevator liability and collision insurance;

(g) plate glass insurance to the extent and in such amounts as the Center Board determines appropriate under the circumstances; and

(h) such other insurance, as the Center Board, in its discretion, considers necessary or advisable;

(i) The Center Board may allocate assessments for insurance premiums in a manner other than as described in Exhibit "A" if necessary more accurately to reflect the relative values of improvements within the Building Parcels as reasonably determined from time to time by the Center Board and the insurer(s) of the policies described herein.

(j) Each Owner, and each Condominium Association, will be deemed to have appointed the Center Association or any insurance trustee designated by the Center Association to act on behalf of the Owners and the Condominium Associations in connection with all insurance matters arising from any insurance policy maintained by the Center Association,

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including without limitation, representing the Owners and the Condominium Associations in any proceeding, negotiation, settlement or agreement.

(k) any insurance maintained by the Center Association shall contain a "waiver of subrogation" as to the Center Association and its officers, directors and members, the Condominium Associations, the Owners and occupants of the Building Parcels (including Declarant), and all mortgagees, and, if obtainable, a cross-liability or severability of interest endorsement insuring each insured against liability to each other insured.

(l) The Center Board shall adopt a policy regarding payment of deductibles on any insurance coverage. Unless the Center Board determines otherwise, the Center Association shall pay deductibles required under any insurance claim from Center Association funds, unless insufficient funds are available to the Center Association from the Center Association's accounts for from funds borrowed by the Center Association in accordance with this Center Declaration, in which event the Center Association shall levy a Special Assessment, in accordance with the provisions of this Declaration, with respect to the amount of any such deductible which exceeds funds available to the Center Association from Center Association funds or from borrowing.

(m) The Center Board shall adopt policies and procedures for filing and processing of claims for damage and destruction of Center Improvements or any other matters covered by insurance maintained by the Center Association.

(n) If such is commercially reasonable to obtain, Center Association insurance shall include rent insurance or loss assessment insurance equal to the aggregate assessments for one year payable to each the Center Association, the Commercial Condominium Association and the Residential Condominium Association.

(o) The Center Association and its officers, directors and members hereby release the Condominium Associations, the Owners (including Declarant), tenants, occupants and mortgagees of the Building Parcels and the successors and assignees of such parties, from any liability for injury to any person, or damage to property that is caused by or results from any risk insured against under any valid and collectible insurance policy carried by the Center Association which contains a waiver of subrogation by the insurer and is in force at the time of such injury or damage.

(p) Each buyer of a Condominium Unit or a Building Parcel shall pay the portion of any prepaid premium(s) attributable to the buyer's Condominium Unit or Building Parcel (prorated to the date of close of escrow) for the policy or policies purchased by Declarant for the Center Association.

(q) The Center Association, and its directors and officers, shall have no liability to any Owner, Condominium Association, or mortgagee if, after a good faith effort, it is unable to obtain the insurance required hereunder, because the insurance is no longer available or, if available, cannot be obtained because the Owners or Condominium Associations have failed to fund the insurance premiums. In such event, the Center Board immediately shall notify each Owner, Condominium Association, and any mortgagee entitled to notice that the insurance will not be obtained or renewed.

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(r) The Center Association as a Common Expense shall obtain and maintain such amounts and types of insurance that satisfy the requirements of the CB-1 REA and any ground leases with the Redevelopment Agency for the City Airspace Parcel, or any other portions or parts of the Center, including the Retail Unit.

(s) No Condominium Association or Condominium Owner shall separately insure a Condominium Project or a Condominium against loss by fire or other casualty covered by any insurance carried by the Center Association. If any Condominium Association or Owner violates this provision, any diminution in insurance proceeds otherwise payable under the Center Association's policies that results from the existence of such other insurance will be chargeable to the Condominium Association or Owner who acquired such other insurance.

(t) The Center Board shall periodically (and not less than once every three (3) years) review all insurance policies maintained by the Center Association to determine the adequacy of the coverage and to adjust the policies accordingly.

(u) The Center Association shall distribute on an annual basis to each Condominium Association a summary of the Center Association’s insurance policies.

5.1.13. Discharge of Liens. The Center Board shall discharge by payment, if necessary, any lien against the Center Association Common Area or the Center Common Easement Areas and charge the cost thereof to the Owner or Owners responsible for the existence of the lien after notice and hearing as provided in the Center Bylaws.

5.1.14. Assessments. The Center Board shall fix, levy, collect and enforce assessments as set forth in Article 4 hereof.

5.1.15. Payment of Expenses. The Center Board shall pay all expenses and obligations incurred by the Center Association in the conduct of its business including, without limitation, all licenses, taxes or governmental charges levied or imposed against the property of the Center Association.

5.1.16. Enforcement. The Center Board shall comply in all material respects with the terms and conditions of this Center Declaration and shall enforce compliance with this Center Declaration by the Owners to the extent that the Center Board determines that such enforcement is in the Board’s reasonable business judgment necessary and appropriate, after due investigation, in light of the circumstances for the protection of the interests of the Center and the Center Association and the majority of the Owners within the Center.

5.2. Powers. In addition to the powers enumerated in the Center Articles and Center Bylaws, or elsewhere provided for herein, and without limiting the generality thereof, the Center Association acting through the Center Board shall have the following powers:

5.2.1. Utility Service and Utilities. The Center Board shall have the authority to obtain or arrange for the providing to the Center, for the benefit of the Owners, or a Condominium Association any utility or service, provided that if such utility or service is not provided to equally to all Owners, then the costs and expenses of providing such utility or service shall be paid by the Owners who are provided such utility or service as a Cost Center Service subject to a Cost Center Allocation of Center Assessments.

5.2.2. Utility Easements. The Center Board shall have the power to install, repair or replace utilities within the Center Association Common Area and the Center Common

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Easement Areas. Each Condominium Association, all Owners and all mortgagees shall be required to grant easements within the Center Common Easement Areas in addition to those, if any, shown on the Center Map, where necessary for utilities, telephone, data cabling, cable television, and sewer facilities to serve the Center Association Common Area and the Center Common Easement Areas and/or any Building Parcel(s).

5.2.3. Manager. The Center Board may employ a manager or other persons and contract with independent contractors or managing agents (“Manager”) to perform all or any part of the duties and responsibilities of the Center Association, except for the responsibility to levy fines, impose discipline, hold hearings, file suit, record or foreclose liens. To establish and maintain coordination in the management and operation of the Center, the Residential Condominium Association and the Commercial Condominium Association shall engage the same professional Manager as is engaged by the Center Association, unless the Center Board approves in writing the engagement of a different manager by such Associations.

5.2.4. Adoption of Rules. The Center Board may adopt the Center Rules as reasonable rules not inconsistent with this Center Declaration to regulate the use of the Center Association Common Area, the Center Common Easement Areas, the Joint Use Easement Areas, the Exclusive Easement Areas, and all facilities thereon, and the conduct of Owners and their tenants and guests with respect to the Center and other Owners.

5.2.5. Access. For the purpose of performing construction, maintenance or emergency repair for the benefit of the Center, the Center Association Common Area, the Center Common Easement Areas, Joint Use Easement Areas or the Owners in common, the Center Association's agents or employees shall have the right, after reasonable notice (except in emergencies, not less than twenty-four (24) hours) to the Owner or Owners of the Building Parcel (being the Board of the relevant Condominium Association and the Owner of any affected Condominium Unit) thereof, to enter any Building Parcel, Center Common Easement Area, Joint Use Easement Area or Exclusive Easement Areas, at reasonable hours. Such entry shall be made with as little inconvenience to the Owner or Owners as practicable and any damage caused thereby shall be repaired by the Center Board at the expense of the Center Association.

5.2.6. Assessments, Liens and Fines. The Center Board shall have the power

to levy and collect Center Assessments in accordance with the provisions of Article 4 hereof. The Center Board may impose fines or take disciplinary action against any Owner for failure to pay Center Assessments or for violation of any provision of the Center Documents. Penalties may include but are not limited to fines, temporary suspension of voting rights, or other appropriate discipline, provided the member is given notice and a hearing as provided in the Center Bylaws before the imposition of any fine or disciplinary action. All fines and penalties shall be imposed in a non-discriminatory manner and shall be reasonably related to the offense.

5.2.7. Enforcement. The Center Association acting through the Center Board shall have the power to enforce this Center Declaration.

5.2.8. Acquisition, Alteration and Disposition of Property The Center Association, acting through the Center Board, shall have the power to acquire (by gift, purchase or otherwise), own, hold, improve, build upon, operate, maintain, convey, sell, lease, transfer, or otherwise dispose of ("Transfer") real or personal property in connection with the affairs of the Center Association. Any Transfer of Center Association property shall be by a document approved by a vote of two-thirds (2/3rds) of the Center Board and a majority of the each Condominium Association Board. Notwithstanding the foregoing, the Center Board is authorized to Transfer Center Association property during a fiscal year the value of which is less than five

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per cent (5%) of the budgeted gross expenses of the Center Association for that fiscal year. Any construction which adds to or alters the structures in the Center shall comply with any applicable conditions and requirements of the City. No construction or alteration of any structure shall be permitted anywhere in the Center that would violate the CB-1 REA or building code provisions then in existence.

5.2.9. Loans. The Center Association shall have the power to borrow money, provided however that if the amount of funds to be borrowed by the Center Association during any fiscal year exceeds the amount of five per cent (5%) of the budgeted gross expenses of the Center Association for that fiscal year, such borrowing may be undertaken only with the assent each Condominium Association acting through its Board of directors.

5.2.10. Dedication. The Center Board shall have the power to dedicate, sell, or transfer easements or rights of way to those portions of the Center which are located below the surface of the ground or are at ground level, and within the Center Association Common Area and the Center Common Easement Areas for utilities and other municipal purposes to any public agency, authority, or utility company or entity for such purposes and subject to such conditions as may be agreed to by the Center Board, provided however that any such dedication, sale or transfer or easements or rights of way shall not adversely affect or impact the use and enjoyment of any Building Parcel. No such dedication shall be effective unless an instrument granting such dedication has been approved and signed by all two-thirds (2/3rds) of the Center Board and a majority of the each Condominium Association Board.

5.2.11. Contracts. The Center Association, acting through the Center Board, shall have the power to contract for goods and/or services for the Center Association Common Area, the Center Common Easement Areas, the Joint Use Easement Areas, and otherwise for the Center as stated in this Center Declaration and for facilities and interests for the Center Association, subject to limitations set forth in the Bylaws, or elsewhere herein.

5.2.12. Delegation. The Center Board, and the officers of the Center Association, shall have the power to delegate their authority and powers to committees, officers or employees of the Center Association, or to a Manager employed by the Center Association, provided that the Center Board shall not delegate its responsibility:

(14) to conduct hearings concerning compliance by an Owner or such Owner's tenant, lessee, guest or invitee with the Center Declaration, Center Bylaws or Center Rules;

(15) to make a decision to levy monetary fines, impose Special Center Assessments, temporarily suspend an Owner's rights, or otherwise impose discipline;

(16) to make a decision to levy Annual Center Assessments, Special Center Assessments or Reimbursement Assessments; or (17) to make a decision to bring suit, record a claim of lien or institute foreclosure proceedings for default in payment of Center Assessments or Condominium Association Assessments as may be assigned to the Center Association.

5.2.13. Appointment of Trustee. The Center Association acting through the Center Board, has the power to appoint or designate a trustee to enforce assessment liens by sale as provided in Section 4.10 and as provided in XXXXXXXXX Statutes § _____.

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5.2.14. Security. The Center Board shall have the power (but not the

obligation) to provide or contract for security service for the Center.

5.2.15. Other Powers. In addition to the powers contained herein, the Center Association, acting through the Center Board, may exercise the powers granted to a nonprofit mutual benefit corporation under XXXXXXXXX Statutes § ____.

5.2.16. Water and Garbage Service. The Center Association, acting through the Center Board, shall have the power to contract for the provision of water service and for garbage removal and waste disposal services for the Center. The Center Board shall allocate the costs for such services on a reasonable basis calculated to reflect the relative usage of each Building Parcel and the Owners and occupants thereof. The Center Board may install separate meters to measure the quantities of water being used by each of the Building Parcels or by individual Condominium Units.

5.3. Commencement of Center Association's Duties and Powers. Until incorporation of the Center Association, and the conveyance of a Building Parcel or a Condominium Unit to a party other than the Declarant, all duties and powers of the Center Association as described herein, including all rights of consent and approval, shall be and remain the duties and powers of Declarant. From and after the date of incorporation of the Center Association, and the date of conveyance of a Building Parcel or a Condominium Unit to a party other than the Declarant, the Center Association shall assume all duties and powers, and Declarant shall be relieved of any further liability therefor. ARTICLE 6. CONSTRUCTION WORK/ARCHITECTURAL REVIEW

6.1. Approval of Plans. Except as otherwise provided in this Article 6, no construction, installation, alteration, modification or reconstruction of any Building, Component, Condominium Project, or Condominium Unit improvement, or structure of any kind ("Construction Work") shall be commenced, undertaken, or installed, within the Center, with the exception of Construction Work undertaken by the Declarant with respect the Declarant’s initial construction work on or within the Center Improvements, or subsequent modifications of Center Improvements by Declarant that conform to the requirements of the CB-1 REA, until the Construction Work has been approved in writing by the Center Board, or by a Center architectural review committee ("Center Architectural Committee") appointed pursuant to Section 6.2 of this Center Declaration.

6.1.1. Submittal of Plans. Plans and specifications showing the nature, kind, shape, color, size, materials and location of such Construction Work shall be submitted to the Center Architectural Committee, or to any other committee or Condominium Association designated by the Center Architectural Committee (“collectively referred to herein as the “Architectural Committee”), for approval as to quality of workmanship and design and harmony of design with existing improvements within the Center, and, where relevant, as to location and design in relation to surrounding structures, project design, structural elements, structural integrity and finish.

6.1.2. No permission or approval shall be required to paint or decorate the interiors of any Condominium Unit or any portion of the common areas of the Condominium Projects, except if, and to the extent, any such common areas of Condominium Projects are visible from the exterior of the Center, or from the lobby areas of the Center. No permission or

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approval shall be required to repair, replace or rebuild an improvement in accordance with Declarant's original plans and specifications. No permission or approval shall be required to repaint in accordance with a color scheme previously approved by the Architectural Committee, or to rebuild in accordance with plans and specifications previously approved by Architectural Committee.

6.1.3. Construction Work for remodeling or altering the interior portions of a Condominium Unit shall be subject to review by the Architectural Committee, only where the Construction Work involves any work that will alter or change any of the following:

(a) Any Center Structural Elements;

(b) Any Center Association Common Areas;

(c) Any Center Common Easement Area;

(d) Any Joint Use Easement Area;

(e) Any common areas of a Condominium Project;

(f) Any utility lines or pipes within the common areas of a Condominium Project or the Center Association Common Areas or the Center Common Easement Areas

Notwithstanding the foregoing, the Condominium Declarations for the Condominium Projects may provide for additional or further review requirements for Construction Work within a Condominium Unit located within the Condominium Project by the board of directors of the Condominium Association for the Condominium Project, or a committee appointed by that board. The Center Board may elect to delegate to a Condominium Association board of directors, or a committee appointed by that board of directors, the responsibility for architectural review of any item or matter that is located solely within the Condominium Project in which the proposed improvements are to be made, in which event the provisions of this Article 6 shall apply to the board of directors or committee to whom the review is delegated.

6.1.4. In the event the Architectural Committee fails to approve or disapprove plans and specifications for proposed Construction Work in writing within thirty (30) days after the same have been submitted to it, approval will not be required and the related covenants pertaining to approval shall be deemed to have been fully complied with. However the other provisions of this Article 6 pertaining to the conduct of the Construction Work shall continue to apply to such Construction Work.

6.1.5. Approval of plans by the Architectural Committee shall in no way make the Center Board, the Architectural Committee, or their respective members, responsible for or liable for the improvements built after approval of the plans and the Owner whose plans are approved shall defend, indemnify and hold the Center Board and the Architectural Committee, and the members thereof, harmless from any and all liability arising out of such approval. All decisions of the Architectural Committee shall be made in a non-discriminatory manner.

6.2. Center Architectural Review Committee. The Center Architectural Committee shall consist of three members. The Declarant may appoint all of the original members of the Center Architectural Committee and all replacements until the date which is the first anniversary of the date of the original issuance of the Final Subdivision Public Report by the State of

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XXXXXXXXX Department of Real Estate for the Residential Project (“Final Public Report”). The Declarant shall have the power to appoint two of the three members of the Center Architectural Committee until ninety per cent (90%) of all Condominium Units in the Center have been sold or until the fifth anniversary date of the original issuance of the Final Public Report. Notwithstanding the foregoing, after one year from the date of issuance of the original final public report for the Residential Project, the Center Board shall have the power to appoint one member to the Center Architectural Committee until ninety per cent (90%) of all Condominium Units in the Center have been sold or until the fifth anniversary date of the original issuance of the Final Subdivision Public Report, whichever first occurs. Thereafter, the Center Board shall have the power to appoint all of the members of the Center Architectural Committee. The members of the Center Architectural Committee do not have to be Condominium Owners. A majority of the Center Architectural Committee may designate a representative to act for it. In the event of death or resignation of any member of the Center Architectural Committee, the Center Board shall appoint a successor.

6.3. Penetrations/Structural Integrity. No penetrations of any membranes and structural surfaces that constitute the division between the Components of the Center and/or the roof of the Center will be permitted, other than those included in original construction or included in final building plans for the Center as approved by the City, unless approved by the Center Board, or the Board’s Designee, and provided all then current building code requirements are met, and necessary permits are obtained from City. No alterations or other Construction Work shall be approved by the Center Board or the Board’s Designee which has an adverse impact on the structural integrity of any Component, Center Association Common Area, Center Common Easement Areas, Condominium Project, Condominium Unit or other portion of the Center. If the Center Board or the Board’s Designee deems such to be appropriate under the circumstances, the Board or the Board’s Designee may require that any proposed alterations or other Construction Work be reviewed and approved by a structural engineer acceptable to the Center Board or the Board’s Designee.

6.4. Manner of Work. Any Construction Work undertaken by any Owner or Condominium Association hereunder shall be done in a first class and workmanlike manner in accordance with good construction practices in compliance with all applicable laws and regulations, the Center Rules, this Center Declaration and any express conditions to the approval of such Construction Work imposed by the Center Board or the Board’s Designees. Any such Construction Work shall be done to the extent reasonably practicable to minimize any noise, vibration, particulates and dust infiltration or other disturbances which would unreasonably disturb Owners or occupants of other portions of the Center.

6.4.1. Construction within the Center. The Center Association shall adopt Rules which shall be complied with by all Condominium Owners regarding the undertaking of any Construction Work within the Center, or within the Components of the Center [excluding the Declarant] dealing with and pertaining to such issues as: [1] hours of construction; [2] scheduling of construction activities, including use of freight or service elevators; [3] access to loading docks; storage of materials; [4] parking of vehicles used in construction activities; [4] clean up of construction work; [5] limitations and prevention of dust and debris from construction work; [6] the qualification of contractors that undertake any such Construction Work; [7] the amounts and types of insurance and/or bonds that must be maintained by any party who undertakes any such Construction Work; and such other matters as the Center Board deems necessary and appropriate regarding Construction Work.

6.5. Compliance with Laws. None of the Owners or Condominium Associations shall make any alterations or undertake any Construction Work which would violate the CB-1 REA and

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the laws, ordinances or regulations affecting the Center. None of the Owners or Condominium Associations shall make any alterations or undertake any Construction Work until and unless any required approvals and permits from the City and any other governmental entities having jurisdiction have been obtained. If joinder by the Center Association, a Condominium Association, or any other Owner is required for applications for building permits or other permits for any Construction Work undertaken by an Owner or Condominium Association, the Center Association, the Condominium Associations, and such other Owner or Owners shall cooperate in such regard; provided however, that the Owner undertaking such Construction Work shall indemnify and hold harmless the Center Association, the Condominium Associations, and the other Owners from any costs, and expenses arising out of such Construction Work and any loss, liability, claims, judgments pertaining to such Construction Work arising from the execution by any such application by the Center Association, a Condominium Association, or any other Owner for Construction Work not undertaken by them.

6.6. Mechanics Liens. An Owner performing any Construction Work in the Center shall include in any construction contract a provision pursuant to which the contractor recognizes the separate ownership interest of the Owner as a Condominium Owner, Owner of a Building Parcel or as a Condominium Association and agrees that any lien rights of the contractor or subcontractors under the mechanics lien laws of the State of XXXXXXXXX shall only be enforceable against the ownership interest of said Owner in such interest in the Building Parcel of the contracting Owner. ARTICLE 7. 0 USE RESTRICTIONS

7.1. Permitted Uses Within the Center. In addition to all of the covenants contained herein, the use of the Center is subject to the following:

7.1.1. The Residential Component may be used or occupied for residential uses as permitted under applicable laws and ordinances, and as may be further described and limited by the Residential Condominium Declaration. The provisions of Article 7 of the Residential Condominium Declaration pertaining to use restrictions may not be changed, modified or terminated without the prior approval of the Center Board, and may not be changed, modified or terminated without the prior approval of Declarant, as long as the Declarant holds title to any Condominium Unit in the Commercial Condominium Project.

7.1.2. The Commercial Component may be used or occupied for commercial, museum, hotel, office, recreational and other such commercial uses as are permitted under applicable laws and ordinances, and as may be further described and limited by the Commercial Condominium Declaration. The provisions of Article 7 of the Commercial Condominium Declaration pertaining to use restrictions may not be changed, modified or terminated without the prior approval of the Center Board and may not be changed, modified or terminated without the prior approval of Declarant, as long as the Declarant holds title to any Condominium Unit in the Commercial Condominium Project.

7.1.3. No applications or requests for amending, revising or otherwise changing the zoning, land use or other regulations affecting the Center shall be made by any Owner without the prior written approval of the Declarant, as long as Declarant owns any Condominium Unit in the Center, and of the Center Board.

7.1.4. The Owners shall each comply with all laws, codes, rules, orders ordinances, regulations and requirements now or hereafter enacted or promulgated by the United

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States of America, State of XXXXXXXXX, City or any other governmental or quasi-governmental authority or agency now or hereafter having jurisdiction over the Center, the Building Parcels, the Condominium Projects, or any portions thereof, if noncompliance would subject the Center Association, the Condominium Associations or the other Owners to civil or criminal liability, jeopardize any certificate of occupancy of any portion of the Center, or any other Owner's rights to occupy or utilize beneficially their respective portions of the Center, or any part thereof, or would result in the imposition of any lien against any portion of the Center.

7.1.5. The Owners shall comply with all rules, regulations, and requirements of any insurance rating bureaus having jurisdiction over the Center or any portion thereof and the requirements of any insurance policy affecting the insurance coverage on any of the other Owner's portion of the Center if noncompliance by it would increase the premiums of any policy of insurance maintained by the Center Association, a Condominium Association, or any of the other Owners, or render any portion of the Center uninsurable or create any valid defense to an association’s, or any other Owners', right to collect insurance proceeds.

7.2. Nuisances. No illegal activities shall be conducted within the Center, nor shall anything be done in the Center which may be or may become a nuisance to or which may in any way interfere with the quiet enjoyment of each of the Owners of their respective interests within the Center, or which increases the rate of insurance for the Center, or portions or components thereof, or causes any insurance policy to be cancelled or causes a refusal to renew the same, or which will impair the structural integrity of the Center, or which will endanger lives or health of occupants. No highly flammable or explosive or corrosive or toxic material shall be manufactured, or sold within the Center. Storage and use of such materials used in the normal course of operation of permitted business or residences shall be allowed only if in full compliance with all applicable laws and normal and safe practices.

7.3. Emissions. No use shall be permitted on or within any Building Parcel, Component, Condominium Project, or Condominium Unit which:

(18) emits unreasonable amounts of dust, sweepings, dirt, cinders, fumes, odors, radiation, gases, or vapors;

(19) discharges contaminated liquid or solid wastes or other toxic, noxious or harmful matter into the atmosphere or any Utility Facilities of the Center, or any sewer system, creek, canal, flood control channel, ground water, or other body of water, which may adversely affect (i) the health or safety of persons or (ii) the use or enjoyment of the Center or any part thereof;

(20) discharges waste or any substance or materials of any kind into any public sewer serving the Center or any part thereof in violation of any regulations of any public body having jurisdiction; or

(21) creates a ground vibration that is materially perceptible, without instruments, at any point along any of the boundary lines or property lines of a Condominium Unit or Building Parcel.

7.4. Vehicle Restrictions and Towing. Except as otherwise permitted in this Center Declaration, except as permitted within the Parking Garage, no vehicle of any type shall be permitted to enter or remain upon any area within the Center, unless authorized by the Center Board. The use and operation of driveways and alley ways within the Center Association Common Area shall be governed by the Center Board on behalf of the Center Association.

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Parking of vehicles in the Parking Garage shall be permitted in accordance with the laws and requirements of the City and as permitted and allowed by the Owner of the Parking Garage Unit or the operator of the Parking Garage in the Parking Garage Unit.

7.4.1. The Condominium Owners of Condominium Units in the Residential Condominium Project (“Residential Owners”) shall be permitted to have parked in the Parking Garage, as long as a Parking Garage is operated in the Center, by valet parking attendants if the parking garage operator so elects, one (1) operating motor vehicle, consisting of either a compact or standard sized automobile, a pickup truck, minivan or motorcycle for a parking fee established by the Owner of the Parking Garage Condominium Unit (“Parking Garage Owner”) that is consistent with the parking fees charged by parking garage operators in high rise luxury class buildings for such parking in Zenith. The Parking Garage Owner shall establish reasonable rules, criteria, definitions and standards for what types of motor vehicles qualify under this section, which rules, criteria, definitions and standards shall be subject to reasonable review and approval of the Center Board.

7.4.2. The Center Association may cause the removal of any vehicle wrongfully parked within the Center, in accordance with the then applicable laws and regulations, including a vehicle owned by a Condominium Owner, or the tenants, guests of a Condominium Owner or other occupant of a Condominium Unit, with the exception of vehicles wrongfully parked in the Parking Garage of the Center. The responsibility and authority for removal of wrongfully parked vehicles within the Parking Garage, shall reside with the Condominium Owner of the Condominium Unit in which the Parking Garage is located, or the designee of such Condominium Owner. The Center Association shall not be liable for any damage incurred by the vehicle owner because of the removal in compliance with this section or for any damage to the vehicle caused by the removal, unless such damage resulted from the intentional or negligent act of the Center Association or any person causing the removal of or removing the vehicle.

7.5. Signs and Advertising. Other than signs installed by Declarant, and as otherwise provided in this Center Declaration, no signs shall be displayed to the public view on any building or on any portion of the Center, except as are approved by the Center Board or a committee appointed by the Center Board, or which otherwise comply with Center Rules adopted by the Declarant or the Center Board pertaining to signs, and for which any required approvals from the City and any other governmental entity having jurisdiction have been obtained. Signs shall conform to all or to any applicable City ordinances, and any Rules adopted by Center Association and by the Condominium Association in which the sign is located. The Center Board may delegate the review and regulation of signs that are displayed within a Condominium Project to the board of directors of the Condominium Association for that Condominium Project.

7.5.1. Owners of Condominium Units in the Residential Condominium Project shall be entitled to display one (1) "For Sale" or "For Rent" or "For Exchange" sign in an area designated by the Center Board, provided that the design, dimensions and locations are reasonable and conform to any reasonable Rules for signs adopted by the Center Board, which Rules shall conform to the then applicable State laws . No such signs for Condominium Units in the Residential Condominium Project shall be displayed in any windows of such Condominium Units, or the doors of such Condominium Units, nor shall such signs be displayed within the common areas of the Residential Condominium Project without the express prior written consent of the Residential Condominium Association board of directors. With respect to any such signs to be located in the Residential Condominium Project, the board of directors of the Residential Condominium Association shall be entitled to adopt reasonable rules and regulations that are not inconsistent with the then applicable State laws, the provisions of this Center Declaration or the Center Rules.

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7.5.2. Owners of Condominium Units in the Commercial Condominium Project

shall be entitled to display one (1) or more "For Sale" or "For Rent" or "For Exchange" signs within a door or window of the Condominium Unit or in an area designated by the Center Board, provided that the design, dimensions and locations are reasonable and conform to any reasonable Rules for signs adopted by the Center Board, which Rules shall conform to the then applicable State laws . No such signs for Condominium Units in the Commercial Condominium Project shall be displayed in any windows of such Condominium Units or the doors of such Condominium Units that do not conform to the requirements of the Center Association and of the Commercial Condominium Association, nor shall such signs be displayed within the common areas of the Commercial Condominium Project without the express prior written consent of the Commercial Condominium Association board of directors. With respect to any such signs to be located in the Commercial Condominium Project, the board of directors of the Commercial Condominium Association shall be entitled to adopt reasonable rules and regulations that are not inconsistent with the then applicable State laws, the provisions of this Center Declaration or the Center Rules.

7.5.3. The Condominium Owner[s] or legal occupants of Condominium Units in the Commercial Condominium Project may install such additional signage on the exterior windows and doors of the Condominium Unit, and upon the exterior common area walls of the Commercial Condominium Project adjacent to the Condominium Unit, in compliance with the requirements of the City and subject to such approval as may be required under the Commercial Condominium Declaration.

7.5.4. The Center Association may maintain and display such signs as the Center Board deems appropriate to identify the Center or the individual Condominium Projects or Condominium Units, including, but not limited to one or more central directories.

7.6. Garbage and Refuse Disposal. All rubbish, trash and garbage shall be regularly removed from the Condominium Projects and the Condominium Units, and shall not be allowed to accumulate thereon or therein. Trash, garbage and other waste shall only be kept in sanitary containers in accordance to Center Association Rules. All equipment for the storage or disposal of such materials shall be kept in a clean and sanitary condition.

7.6.1. The cost of central refuse, garbage and recycling collection shall be included in the Annual Center Assessments, provided that if any Owner is responsible for generating a disproportionately large amount of refuse, garbage or recycling, the Center Association may prorate the cost of refuse collection to more equitably to account for such disproportionate cost of collection.

7.6.2. No flammable, toxic or hazardous materials shall be disposed of within the Center by dumping in the garbage containers or trash chutes within the Center, or down the drains, or otherwise, except as provided for and in accordance with applicable laws.

7.7. Antennas and Devices. No Owner of a Condominium Unit in the Residential Condominium Project may be permitted to construct and/or use and operate any radio and/or television and or data transmitting or receiving antenna or other electronic antenna, dish or other electronic receiving or transmitting device which is external to the Condominium Unit, without the consent of the Center Board. No Owner of a Condominium Unit in the Commercial Condominium Project may be permitted to construct and/or use and operate any external radio and/or television transmitting or receiving antenna and or data transmitting or receiving antenna or other electronic antenna, dish or other electronic receiving or transmitting device which is

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external to the Condominium Unit, without the consent of the Center Board which shall not be unreasonably withheld if such external radio and/or television transmitting or receiving antenna or other electronic antenna or dish is located in an area designated by the Center Board as being appropriate for installation of such device, conforms to applicable laws, does not interfere with any structural aspect of the Center, does not unreasonably interfere with electronic devises of other occupants of the Center, is not, in the reasonable discretion of the Center Board, or a committee appointed by the Center Board, unreasonably visible from other portions of the Center and does not conflict with any devices installed within the Declarant Communications Easement Areas. The Center Board shall adopt Center Rules for antennas and receiving dishes to comply with any State or federal regulations pertaining to antennas and receiving dishes.

7.8. Overloading. No machinery, apparatus, or appliance or equipment shall be located in any building that will in any manner structurally overload the Center or any Component or part thereof, or in any manner damage any portion of the Center.

7.9. Window Coverings. All window coverings shall conform to the Rules adopted by the Center Board with respect to window coverings within the Center.

7.10. Commonly Metered Utilities. The Center Board may establish restrictions regarding the individual use of any utility on a common meter, and may impose reasonable charges for the individual use thereof, in accordance with the then applicable laws and regulations.

7.11. Liability of Owners for Damage to Center Association Common Areas, Center Common Easement Areas and Joint Use Easement Areas. Each Condominium Owner shall be liable to the other Owners and to the Center Association, and the Condominium Associations, for all damage to the improvements in the Center Association Common Areas, Center Common Easement Areas and Joint Use Easement Areas caused by such Owner or the Owner's agents, occupants or invitees. The Owner responsible for any such damage shall be charged with the cost of repairing such damage (including interest thereon) as a Reimbursement Assessment as described in Section 4.4.4.

7.12. General Covenants; CB-1 Real Property Appearance. In addition to the restrictions set forth in this Center Declaration, the restrictions set forth in the CB-1 REA shall apply to the Center, including, expressly, but not limited to, the following:

7.12.1. Limitation on Detrimental Characteristics. As provided in Section 11.1 of the CB-1 REA, and not limiting the provisions of Sections 7.1, 7.2, 7.3, 7.5, 7.7 or any other provision of this Center Declaration, no part of the Center shall be used or operated for: (i) any use which does not comply with applicable zoning ordinances, (ii) any unlawful, immoral or disreputable purpose or for any activity of a type which is not generally considered appropriate for a first-class mixed use complex conducted in accordance with good and generally accepted standards of operation, or (iii) is contrary to the Redevelopment Plan described in the CB-1 REA or the Declaration of Restrictions, dated ___________, recorded in the Official Records of the City and County of Zenith, XXXXXXXXX on December 13, 1966. Included among the uses or operations which are prohibited because of their obvious interference with maintaining a balanced and diversified grouping of sports club, residential, restaurant, office, hotel, retail and cultural uses, as well as their obvious detrimental effect upon the general appearance of the Center and conflict with the reasonable standards of appearance, maintenance and housekeeping required by the CB-1 REA, are uses or operations which produce or are accompanied by the following characteristics, which list is not intended to be all inclusive:

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(1) Any noise, litter, odor or other activity which may constitute a public or private nuisance, except for temporary activities on the Common Area described in the CB-1 REA permitted pursuant to Section 7.9 of the CB-1 REA;

(2) Any unusual firing, explosion or other damaging or dangerous hazards;

(3) Any assembly, manufacturing, distillation, refining, smelting, industrial, agriculture, drilling or mining operation; and

(4) Any dumping, disposal, incineration or reduction of garbage or refuse other than handling or reducing such waste if produced on the premises from authorized uses and if handled in a reasonably clean and sanitary manner.

7.12.2. Louvers and Mechanical Equipment, Antennas, Transmitters and Receivers. As provided in Section 11.2 of the CB-1 REA, and not limiting the provisions of Section 7.7 of this Center Declaration, louvers and mechanical equipment which extend beyond the Permissible Building Area of a building as set forth in the CB-1 REA, and antennas, towers, space dishes, and other devices or structures for the transmission and/or reception of radio, television, microwave, cellular telephone and other electromagnetic signals or impulses within the Center, the placement and appearance of which are readily visible, shall be subject to the prior written approval of the Redevelopment Agency.

7.12.3. Signs and Banners. As provided in Section 11.4 of the CB-1 REA, and not limiting the provisions of Section 7.5 of this Center Declaration, the criteria for all signs to be installed (other than on storefronts) within the Center shall meet the requirements set forth in Exhibit G of the CB-1 REA; provided, however, that signs connected to storefronts on the Retail Parcels described in the CB-1 REA shall be governed by storefront criteria adopted from time to time pursuant to the provisions of the Retail Lease described in the CB-1 REA.

7.12.4. Effective Term of Restrictions. As provided in Section 11.5 of the CB-1 REA, the restrictions described in this Section 7.12 and in Article 11 of the CB-1 REA shall remain in effect from the date of the CB-1 REA until the Termination Date set forth and defined in the CB-1 REA, and may not be amended without the prior written approval of the Redevelopment Agency. ARTICLE 8. OWNER'S RIGHT AND OBLIGATION TO MAINTAIN AND REPAIR

8.1. Center Association Maintenance and Repair. The Center Association shall be responsible for the inspection, maintenance, repair and replacement of the Center Association Common Areas, the Center Common Easement Areas and those other Center Structural Elements and portions of the improvements of the Center as identified and specified in Sections 5.1.1, 5.1.2, 5.1.3 and 5.1.5 hereof. The Center Association shall be responsible for maintenance, repair or replacement of those items and components of the Building that are established as Joint Use Easement Areas, as identified and specified in Section 5.1.4, with the costs of such maintenance, repair or replacement of those items to be assessed as set forth in Section 4.5.1 as a Cost Center Allocation.

8.2. Condominium Associations’ Obligations and Rights to Maintain and Repair. Each Condominium Association shall maintain, repair and replace the improvements located within the Condominium Project over which the respective Condominium Association has

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responsibility and authority, including any Exclusive Easement Areas which are established hereunder as being for the exclusive benefit of the Condominium Project, keeping the same in good condition and repair to the standards established for the Center by the Center Association, with the following exceptions:

(a) Excepting those portions of the Center which the Center Association is required to maintain, repair and replace hereunder, which includes the improvements with the Center Association Common Areas, the Center Common Easement Areas, the Joint Use Easement Areas and the Center Structural Elements;

(b) Excepting, to the extent set forth in the Condominium Declaration for that Condominium Project, the Condominium Units within that Condominium Project. The Condominium Declaration for a Condominium Project shall designate and describe portions of the Condominium Project which individual Condominium Owners are to maintain, repair and replace. The Condominium Association for the respective Condominium Projects within the Center shall be responsible for the compliance by the Condominium Owners within the Condominium Project regarding such Owner’s obligations for maintenance, repair and replacement of improvements as so designated and described in the applicable Condominium Declaration.

(c) Excepting Exclusive Easement Areas that are the responsibility of a Condominium Owner under this Center Declaration.

8.2.1. Condominium Project Air Conditioning and Heating Systems. Each Condominium Association shall also maintain, repair and replace the air conditioning and heating system serving the Condominium Project and Condominium Units situated within the Building Parcel in which the Condominium Project is located or within the Exclusive Easement Areas designated for and appurtenant to the Condominium Project, except for those portions of such systems (such as any cooling towers, pipes, and other facilities that are located outside of its Building Parcel or such Exclusive Easement Areas) which are for the common or joint use of other Components, Condominium Units or Condominium Projects within the Center, and which are to be maintained by the Center Association.

8.2.2. Condominium Project Utility Facilities. Each Condominium Association shall also maintain, repair and replace the Utility Facilities and the equipment which exclusively serve the Condominium Project and the Condominium Units as to which the Condominium Association has jurisdiction, and which facilities and equipment are located within the Building Parcel in which the Condominium Project is located, or within the Exclusive Easement Areas designated for and appurtenant to such Condominium Project, including such facilities as elevator equipment and components, telephone or telecommunications equipment, or similar such facilities or equipment, except for those portions of the Utility Facilities systems which are for the common use of other Components, Condominium Units or Condominium Projects within the Center, and which are to be maintained by the Center Association, and excepting any such facilities or equipment that serve only one Condominium Unit in the Commercial Condominium Project, which are the subject of an Exclusive Easement Area and, under and pursuant to the Commercial Declaration or this Center Declaration, the Owner of a Condominium Unit is to maintain, repair or replace.

8.3. Owner's Right and Obligation to Maintain and Repair. Except for those portions of the Center which the Center Association is required to maintain, repair and replace, and except for those portions of the Building Parcel which each Condominium Association is required to maintain, repair and replace, each Condominium Owner shall maintain, repair and

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replace the improvements within its, his or her Condominium Unit, keeping the same in good condition and repair, consistent with a first class high-rise mixed use project in Zenith, and subject to any standards established for such maintenance and repair as may be stated in the Center Rules. The Condominium Declaration for a Condominium Project shall designate and describe portions of the Condominium Project which individual Condominium Owners are to maintain, repair and replace. Each Condominium Owner shall duly and completely undertake such maintenance, repair and replacement in a timely and prudent manner as so designated and described in the applicable Condominium Declaration.

8.4. Center Association’s Rights to Assume Responsibility. In the event a Condominium Association or an Owner shall fail to maintain or repair, or cause to be maintained or repaired, any portion of the Building Parcel, Condominium Project, or Exclusive Easement Areas as to which that Condominium Association has the duty and responsibility to maintain and repair, then the Center Association, or it's designated agents, may, after notice and a hearing as provided in the Bylaws, if the Center Board determines such action to be necessary and required for the health, safety, welfare and integrity of the Center, enter the Building Parcel, Condominium Project or Exclusive Easement Area and perform the necessary maintenance. The cost of such maintenance shall immediately be paid to the Center Association by the responsible Condominium Association or Owner for the Building Parcel, Condominium Project or Exclusive Easement Area involved, as a Reimbursement Assessment, together with interest at the rate of twelve percent (12%) per annum from the date the cost was incurred by the Center Association until the date the cost is paid by the responsible Condominium Association.

8.5. Manner of Maintenance and Repair. Any repair work undertaken by the Center Association, a Condominium Association or an Owner hereunder shall be done in a first class and workmanlike manner in accordance with good construction practices in compliance with all applicable laws and regulations and this Center Declaration. Any such work shall be done to the extent reasonably practicable to minimize any noise, vibration, particulates and dust infiltration or other disturbances which would unreasonably disturb Owners or occupants of other portions of the Center.

8.6. Emergency Generators. Each Condominium Association shall maintain any

emergency generator which serves the Building Parcel over which the Condominium Association has jurisdiction, wherever said generator is located, unless the Center Association expressly undertakes to maintain such generator. The Center Association may permit a Condominium Owner in the Commercial Condominium Project to install and maintain its own emergency generator within an area of the Center which is designated for such installation by the Center Board. Subject to the prior written approval of the Center Board, the Commercial Condominium Association may permit a Condominium Owner in the Commercial Condominium Project to install and maintain its own emergency generator within common areas of the Commercial Condominium Project.

8.7. Fire Protection Systems. The Center Association shall maintain, repair and replace all fire detection and suppression equipment and facilities situated within the Center, as a Common Expense, except for those which are located or situated within a Condominium Unit or the maintenance repair or replacement of which the Center Board delegates to a Condominium Association.

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ARTICLE 9. DAMAGE OR DESTRUCTION

9.1. Repair and Reconstruction of Damaged Improvements. Except as otherwise stated in this Article 9, if any of the improvements within the Center are damaged or destroyed by fire or other casualty, the Center Association shall effect or cause the repair, restoration, reconstruction or replacement (“Repair”) of such damaged or destroyed improvements in the manner set forth in this Article 9. The provisions of this Article 9 and the rights and obligations of the Center Association, the Condominium Associations and each Owner in the Center regarding Repair of the Center, or any portion thereof, shall be expressly subject to the provisions of Section 6.2(2) of the CB-1 REA.

9.1.1. Repair by the Center Association. The Center Association shall Repair all Center Association Common Areas and all Center Structural Elements of the Center, as a Center Common Expense, except as otherwise stated in this Article 9. If the insurance proceeds and other funds available to the Center Association are not sufficient for the Center Association to undertake and complete such repairs of such components and facilities of the Center, then the provisions of Section 9.2 shall apply.

9.1.2. Repair to Condominium Projects. The Condominium Associations shall Repair all improvements and facilities within the Condominium Project, except for Repairs to those improvements to be made, undertaken or caused by the Center Association, and for the Repairs to Condominium Units to be made, undertaken or caused by Condominium Owners as stated in the Condominium Declaration for each of the respective Condominium Projects.

(a) The Repair of damaged or broken windows of Condominium Projects caused by a casualty event shall be the responsibility of the Center Association as a Center Common Expense, provided however, if any window which is located adjacent to a Condominium Unit within the window walls or curtain walls of the Building structure are damaged or broken by the Owner of the Condominium Unit, or the tenants, guests or invitees of the Owner, then the costs of Repair of said window shall be levied as a Reimbursement Assessment to and against the Condominium Unit.

9.1.3. Repair to Condominium Units. The Condominium Owners shall Repair

all improvements and facilities located within their respective Condominium Units, except for Repairs to those improvements to be made, undertaken or caused by the Center Association under this Center Declaration, or by the Condominium Association for the Condominium Project in which the Condominium Unit is located under this Center Declaration or under the Condominium Declaration.

9.1.4. Repair to Center Association Common Areas and Center Common Easement Areas. The Center Association shall Repair, as a Common Expense, all Center Association Common Areas, and all Center Common Easement Areas and Joint Use Easement Areas, except as otherwise stated in this Article 9.

(a) To the extent the cost of such Repairs to the Center Association Common Areas, Center Common Easement Areas or Joint Use Easement Areas is not covered by insurance proceeds, in part or in whole, then the provisions of Section 9.2 shall apply.

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(b) If the Center Association Common Areas, Center Common Easement Area or Joint Use Easement Area improvements, Center Structural Elements, or other improvements within any Building Parcel are to be Repaired by the Center Association, and the cost for such Repairs exceeds ten percent (10%) of the current replacement cost of such improvements to be repaired, or such cost is greater than $1,000,000, then the Center Board shall designate a construction consultant, a general contractor, and an architect for the Repair or reconstruction. In such event, all insurance proceeds, Center Association, Condominium Association monies, or other monies allocated for the Repair or reconstruction, and any borrowings by the Center Association or Condominium Associations for the Repair shall be deposited with a commercial lending institution experienced in the disbursement of construction loan funds (the "depository") as selected by the Center Board. So long as Fleet National Bank, or its successors or assigns (“Fleet”), is a mortgagee on any Condominium Unit, Fleet shall be the depository. Funds shall be disbursed in accordance with the normal construction loan practices of the depository that require, as a minimum, that the construction consultant, general contractor and architect certify prior to any disbursement substantially the following:

(22) That all of the work completed as of the date of such request for disbursement has been done in compliance with the approved plans and specifications;

(23) That such disbursement request represents monies which either have been paid by or on behalf of the construction consultant, the general contractor or the architect and/or are justly due to contractors, subcontractors, materialmen, engineers, or other persons (whose name and address shall be stated) who have rendered or furnished certain services or materials for the work and giving a brief description of such services and materials and the principal subdivisions or categories thereof and the respective amounts paid or due to each of said persons in respect thereof and stating the progress of the work up to the date of said certificate;

(24) That the sum then requested to be disbursed plus all sums previously disbursed does not exceed the cost of the work insofar as actually accomplished up to the date of such certificate;

(25) That no part of the cost of the services and materials described in this Section 9.1.4(b) has been or is being made the basis for the disbursement of any funds in any previous or then pending application; and

(26) That the amount held by the depository, after payment of the amount requested in the pending disbursement request, will be sufficient to pay in full the costs necessary to complete the Repair. (c) If the cost of repair or reconstruction is less than ten percent (10%) of the current replacement cost of such improvements to be repaired, or such cost is less than $1,000,000, the Center Board shall disburse the available funds for the repair and reconstruction under such procedures as the Center Board deems appropriate under the circumstances.

9.1.5. Repair to Joint Use Easement Area. The Center Association shall Repair all structural components and facilities located within the Joint Use Easement Areas, except as otherwise stated in this Article 9, as a Common Expense , which shall be assessed and allocated as a Cost Center Allocation pursuant to Section 4.5.1.

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9.1.6. Repair to Exclusive Easement Area. Repair to all elements, equipment and facilities located within the Exclusive Easement Areas shall be the responsibility of the Condominium Project or Condominium Owner that has been granted the use and benefit of such Exclusive Easement Area. Provided, however, if the Center Association deems that Repair of such an Exclusive Easement Area is essential to the overall operation and management of the Center, then the Center Association may elect to make such Repairs and levy a Reimbursement Assessment to the responsible Condominium Project or Condominium Owner that has been granted the use and benefit of such Exclusive Easement Area.

9.2. Repair Where Funds Not Sufficient. In the event that insurance proceeds and other funds available to the Center Association for effecting the required Repairs of the Center Association Common Areas, Center Structural Components, Center Common Easement Area or Joint Use Easement Area Improvements or the other portions of the Center which the Center Association is to Repair hereunder are not adequate to complete such Repair, the following shall pertain and apply:

(a) The Center Board shall levy a Special Center Assessment to and against each of the Condominium Projects for the costs of such Repairs that are not so covered by insurance proceeds, and the Condominium Associations of the Condominium Projects shall levy special assessments against the Condominium Units within their respective Condominium Projects pursuant to the respective Condominium Declaration to cover such costs of Repair.

(b) Notwithstanding the foregoing, If the amount of the Special Center Assessment to be levied for such Repairs is an amount which is five per cent (5%) or more of the fair market value of the Center prior to the event of damage or destruction, then, such Special Center Assessment must be approved by the vote of a majority of the voting power of the Condominium Owners in each of the Condominium Projects. If the Special Center Assessment is not so approved, then, except in the event of 9.2(c), below, the provisions of Section 9.6 shall apply.

(c) In such event that the Owners do not elect to impose a Special Center Assessment, the Commercial Condominium Association or the Owner or Owners of any Condominium Unit in the Commercial Condominium Project shall be entitled to make such Repairs to the Center Association Common Area, Center Structural Components, Center Common Easement Area or Joint Use Easement Area Improvements or other areas that the Center Association is required to Repair hereunder and fund the costs of such Repairs as a loan to the Center Association, which loan shall be payable by all Owners on the basis stated in this subsection 9.2(c).

(27) said loan shall bear interest at the rate of interest per annum which equates to the Prime Rate plus one hundred basis points. "Prime Rate" shall mean the "reference rate" announced by the Bank of America, or the successor to Bank of America by merger or acquisition, at its main Zenith branch (whether or not such rate has actually been charged by the Bank of America). If the Bank of America should cease to exist or discontinues the practice of announcing a "reference rate" then the term "Prime Rate" shall mean the “reference rate” announced by the Wells Fargo Bank, or the successor to Wells Fargo Bank by merger or acquisition, at its main Zenith branch, (whether or not such rate has actually been charged by Wells Fargo Bank). If the Wells Fargo Bank should cease to exist or discontinues the practice of announcing a "reference rate" then the term prime rate (or base rate) reported in the Money Rates column or section of The Wall Street Journal as being the base rate on corporate loans at large U.S. money center commercial banks (whether or not such rate has actually been charged by any such bank). If The Wall Street Journal ceases publication of the prime rate, the "Prime Rate" shall mean the highest rate charged by the Bank of America or Wells Fargo Bank, if

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Bank of America then does not exist, on short-term, unsecured loans to its most credit worthy large corporate borrowers. If The Wall Street Journal (a) publishes more than one prime rate or base rate, the higher or highest of such rates shall apply, or (b) publishes a retraction or correction of any such rate, the rate reported in such retraction or correction shall apply.

(28) said loan shall be payable in equal monthly installments of principal and interest which amortize the loan in full over a period of 10 years, unless the Owner or Owners of the Condominium Unit or Units in the Commercial Condominium Project making such loan agrees to different terms with the Center Association [and the Condominium Associations by and through their respective Boards.]

(29) said loan shall be secured by the rights of the Center Association to collect and enforce Center Assessments by and pursuant to this Center Declaration, including the rights assigned to the Center Association to collect the assessments of the Condominium Projects as set forth in Section 4.10.3 hereof. The Center Association and each Condominium Association hereby agrees to execute such reasonable documentation that is required to further establish and perfect any such security interest for said loan.

(d) If damage extends to the Center Association Common Areas, Center Common Easement Areas or Joint Use Easement Areas, and the Condominium Owners of the Commercial Condominium Project elect to rebuild the portions and components of the Center that are situated in the Commercial Component and the portions of the Center Association Common Areas, Common Easement Areas or Joint Use Easement Areas required to support and operate the improvements within the Commercial Condominium Project, notwithstanding the failure of obtaining approval of a Special Center Assessment under Section 9.2.1 of the Residential Condominium Project, then, the insurance proceeds available to the Center Association shall be allocated proportionately to the Commercial Condominium Association and the Residential Condominium Association based upon the expert estimates of the relative costs of Repair of the respective Condominium Projects. The proportionate amount of insurance proceeds allocated to the Commercial Condominium Project shall be used to effect Repair of the Commercial Condominium Project. The Center Board shall levy against the Commercial Condominium Association a Special Center Assessment to pay the difference in costs of Repair of the Commercial Component and the available insurance proceeds. Insurance proceeds payable to any Association, any Condominium Projects or an Condominium Owner shall first be allocated to the costs of repair or restoration of the Center Association Common Areas, Common Easement Areas or Joint Use Easement Areas, and, next, to the fulfillment of the obligations of the Building Parcel Owner or Condominium Project under this Center Declaration to render the Building Parcel safe and free of debris pursuant to Subparagraph 9.6, before any portions of such proceeds are allocated and disbursed to any Condominium Owner in a Condominium Project with respect to a Condominium Project which has been damaged or destroyed, but for which an election has not been made to Repair.

9.3. Repair Work. Any Repair which is required hereunder shall be undertaken in accordance with the original as-built plans and specifications for the Center, and the particular improvements, modified as may be required by applicable building codes and regulations in force at the time of such Repair or as authorized by the Center Board.

9.3.1. In the event of damage to more than one Condominium Unit or more than one of the Condominium Projects, or if there is damage to a Condominium Unit or a Condominium Project, and areas or improvements which the Center Association is to Repair hereunder, the Condominium Owners of the each of the Condominium Units, the Boards of each of the respective Condominium Associations, and the Center Board shall each cooperate in the

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Repair and reconstruction of their improvements and areas of responsibility by coordination of Repair work and providing access where necessary over and across the respective Building Parcels, the Condominium Projects, Condominium Units, the Center Association Common Area, the Joint Use Easement Areas or Exclusive Easement Areas. The Center Association shall cooperate by coordination of Repair within the Center Association Common Areas, Center Common Easement Areas and the Joint Use Easement Areas, and providing such access over and across the Center Association Common Areas, Center Common Easement Areas and the Joint Use Easement Areas as reasonably necessary for the Condominium Projects and the Condominium Owners to effect such Repair as they are required or permitted to undertake or cause hereunder.

9.4. Insurance Proceeds. The Center Association shall make available the proceeds of any insurance from any master hazard policy for Repair of damage or destruction to the Condominium Projects or Condominium Units for which Repairs are required to be undertaken or caused by the respective Condominium Projects or Condominium Owners hereunder, subject to the provisions of Section 9.2 (d) hereof, and subject to reasonable requirements imposed by the Center Board with respect to the adequacy of completion of any such Repair Work. Any deductible amounts of such insurance shall be prorated among the insureds to whom the insurance proceeds are made available in accordance with reasonable calculations by the Center Board as to the relative and comparative amount of damage or destruction that is covered by the insurance proceeds.

9.5. Completion of Repairs. Repairs to the Center that are to be undertaken by the Center Association shall be undertaken and completed as promptly as reasonably possible under the circumstances, subject to delays that are beyond the reasonable control of the Center Association. Any Repair of improvements within a Condominium Project, a Building Parcel, an Exclusive Easement Area or a Condominium Unit shall be completed no later than two (2) years after the date of the casualty, subject to reasonable delays that are beyond the control of the party responsible for making the Repairs. If repairs to a Building Parcel, Exclusive Easement Area, Condominium Project, or Condominium Unit require that repairs be first made to the Center Association Common Areas, Center Common Easement Areas, or other portions of the Center that the Center Association is required to Repair hereunder, then the requirements of the Building Parcel Owner, Condominium Association or Condominium Owner to complete such repair shall be subject to and contingent upon those Repairs to the Center Association Common Area, Center Common Easement Areas or other portions of the Center being Repaired by the Center Association. The Condominium Associations, the Condominium Owners and the Center Association shall take all appropriate steps before all Repair is completed to erect necessary structures and take such precautions as are reasonable to preclude unauthorized access to the Center, the Building Parcels, Center Association Common Area, the Center Common Easement Areas, the Condominium Projects, and the Condominium Units, and otherwise mitigate dangerous or hazardous conditions within the Center. To the extent which is reasonable and feasible, the Condominium Associations, Condominium Owners and the Center Association shall coordinate their work of Repair and restoration of the portions of the Center for which they are responsible to repair or restore under this Center Declaration.

9.6. Procedure When Damage to Center Not Repaired. If the Center Association, pursuant to the terms of this Center Declaration, elects not to Repair damage to the Center Association Common Area, Center Common Easement Area or Center Structural Components because such Repair is physically infeasible or because the required governmental permits and approvals cannot be legally obtained, the Center shall be sold in its entirety under such terms and conditions as are approved by a Majority Vote of Center Members subject to the provisions of this Section 9.6 and Section 9.7 of this Center Declaration. If, in accordance with this Center

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Declaration, the damaged improvements in the Center Association Common Area or Center Common Easement Area or damaged Center Structural Components or the improvements within Building Parcels are not repaired or reconstructed, the Center Association shall promptly obtain any necessary permits and complete demolition of the damaged improvements within the Center Association Common Area, Center Structural Components, the Center Common Easement Areas and the Building Parcels, remove all debris from the Center, erect necessary structures to preclude unauthorized access to the Center Association Common Area, Center Structural Components, Center Common Easement Area and the Building Parcels and otherwise remove all safety hazards. Thereafter, after first applying the proceeds to the cost of removal of the damaged or destroyed improvements, mitigating hazardous conditions on the Center, making provision for the continuance of public liability insurance to protect the interests of the Owners until the Center can be sold, and complying with the terms of the all applicable requirements of governmental agencies, and subject to the rights of the Owners' First Mortgagees, all available insurance proceeds shall be disbursed among all Owners in the Center by the Center Association to all Condominium Owners based upon the relative fair market value of each Condominium Unit, including the respective interests in the Center Common Easement Areas, Joint Use Easement Areas and Exclusive Easement Areas, prior to the event of damage and destruction having occurred. Fair market valuation of the Condominium Units and any other interests of Owners in the Center shall be determined by Appraisal.

9.7. Sale of Center. If the Center is sold, the sales proceeds shall be distributed to all Owners, subject to the rights of their respective First Mortgagees, in proportion to the relative fair market value of each Condominium Unit prior to the event of damage and destruction having occurred, including the respective interests in the Center Common Easement Areas, Joint Use Easement Areas and Exclusive Easement Areas, as of the date immediately preceding the date of damage or destruction as determined by a qualified independent appraiser selected by the Board, after first applying the proceeds to the cost of removal of the damaged or destroyed improvements, mitigating dangerous or hazardous conditions within the Center, making provision for the continuance of public liability insurance to protect the interests of the Owners until the Center can be sold, and complying with the terms of all applicable requirements of governmental agencies. Fair market valuation of the Condominium Units and any other interests of Owners in the Center shall be determined by Appraisal.

9.8. Right of First Refusal. If the Owners of the Condominiums in the Residential Condominium Project elect not to rebuild the improvements within the Residential Condominium Project, the Owners of the Condominiums in the Commercial Condominium Project, through the Commercial Condominium Association shall have the right of first refusal to acquire the Residential Condominium Project and all of the Residential Component and all rights appurtenant thereto. If the Owners of the Condominiums in the Residential Condominium Project elect not to rebuild the improvements within the Residential Condominium Project, the Residential Condominium Association shall send a written notice to the Commercial Condominium Association within 10 days after such determination is made, but in no event later than 180 days after the occurrence of the event of damage or destruction. The Owners of the Condominiums in the Commercial Condominium Project, through the Commercial Condominium Association, shall elect whether to exercise the right of first refusal to acquire the Residential Condominium Project and all of the Residential Component and all rights appurtenant thereto within 90 days after receipt of the previously described notice from the Residential Condominium Association to the Commercial Condominium Association. The acquisition price and terms under such right of first refusal shall be determined by agreement of the boards of directors of the Condominium Associations, and if the boards of directors of the Condominium Associations cannot agree within 90 days after the notice from the Residential Condominium Association, such acquisition price and terms shall be determined by Appraisal. In the event that Commercial Condominium Project

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elects not to exercise such right of first refusal or fails to exercise such right within said 90 day period, then the Declarant shall have the right of first refusal to acquire the Residential Condominium Project and all of the Residential Component and all rights appurtenant thereto. The Declarant shall elect whether to exercise the right of first refusal to acquire the Residential Condominium Project and all of the Residential Component and all rights appurtenant thereto within 150 days after receipt of the previously described notice from the Residential Condominium Association to the Commercial Condominium Association. The acquisition price and terms under such right of first refusal shall be determined by agreement of the board of directors of the Residential Condominium Association and the Declarant, and if said board of directors and the Declarant cannot agree as to the acquisition price and terms within 180 days after the notice from the Residential Condominium Association, by Appraisal.

9.8.1. If the Center Association elects not to Repair the Center, the Declarant shall have the right of first refusal to purchase the Center in its then existing condition from all of the Owners. The acquisition price under such right of first refusal shall be determined by agreement of the Center Board and the Declarant, and if said Center Board and the Declarant cannot agree as to the price and terms, within 180 days after the election of the Center Association not to so Repair, such price and terms shall be established by Appraisal.

9.9. Appraisal. Appraisal shall mean the determination of the value or values required by an appraiser who is selected by agreement of the parties for whom the appraisal is being conducted, which appraiser has the following qualifications: an MAI appraiser who has no less than ten years of experience valuing commercial and residential condominium projects in Zenith, XXXXXXXXX. If the parties cannot agree within 30 days as to the selection of such appraiser, then the Appraisal shall be conducted as follows:

(a) Each of the parties shall select an appraiser meeting the above stated qualifications within 45 days.

(b) 29The appraisers so chosen shall meet within ten (10) business days after the second appraiser is appointed. The two appraisers shall determine the valuation of the matter which is the subject of the Appraisal by mutual agreement.

(c) 29If the two appraisers so selected cannot agree upon a valuation as to the matter subject to Appraisal within thirty (30) days after the appointment of the second appraiser, then the two appraisers shall appoint a third appraiser, who shall be a competent and impartial person with qualifications similar to those required of the first two appraisers.

(d) 29If the two appraisers are unable to agree upon such appointment within five (5) business days after expiration of such ten (10) days period, the third appraiser shall be selected by the parties themselves. If the parties do not so agree, then either party, on behalf of both, may request appointment of such a qualified person by the then president of the Real Estate Board for the County of Zenith. The three appraisers shall decide the valuation by following the procedures:

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(30) Each of the two appraiser selected by the parties shall state, in writing, his or her determination of the price or valuation which is the subject of the Appraisal hereunder, supported by the reasons therefor and shall make counterpart copies for each of the other appraisers. The appraisers shall arrange for a simultaneous exchange of such proposed resolutions. The role of the third appraiser shall be to select which of the two proposed resolutions most closely approximates his determination of valuation which is the subject of the Appraisal. The third appraiser shall have no right to propose a middle ground or any modification of either of the two proposed resolutions. The resolution he or she chooses as that most closely approximating his determination of the correct valuation shall constitute the decision of the appraisers as the Appraisal, and shall be final and binding upon the parties

(2) In the event of a failure, refusal or inability of any appraiser to act, his successor shall be appointed by him, but in the case of the third appraiser, his successor shall be appointed in the same manner as that set forth herein with respect to the appointment of the original third appraiser. The appraisers shall decide the issue within thirty (30) business days after the appointment of the third appraiser. Each party shall pay the fees and expenses of its respective appraiser and both shall share the fees and expenses of the third appraiser.

(3) The appraiser shall have the right to consult experts and competent authorities for factual information or evidence pertaining to a determination of the valuation of the matter which is the subject of the Appraisal, but any such consultation shall be made in the presence of both parties with full right on their part to cross-examine. The appraisers shall render the decision and award in writing with counterpart copies to each party. The appraisers shall have no power to modify the provisions of this Center Declaration. ARTICLE 10. CONDEMNATION

10.1. Complete Taking. If all of the Center is taken by eminent domain, the Center Association shall represent all of the Owners and the Condominium Associations in any condemnation proceedings or in negotiations, settlements and agreements with the condemning authority for acquisition of the Center. In the event of a taking or acquisition of part or all of the Center by a condemning authority, the award or proceeds of settlement shall be payable to the Center Association, or any trustee appointed by the Center Association, for the use and benefit of the Owners and their mortgagees as their interests may appear. The proceeds of condemnation shall be allocated to and distributed among the Condominium Owners as follows: the proceeds shall be distributed by the Center Association to each Condominium Association based upon the valuation of each of the respective Components of the Center as of the date of such condemnation which each respective Condominium Association represents and administers. Each Condominium Association shall allocate and distribute the portions allocated and distributed to it to its members based upon the provisions stated in the Condominium Declaration for the respective Condominium Project which the Condominium Association administers and represents.

10.2. Partial Taking. If part of the Center is taken by eminent domain, including Center Association Common Area or Center Common Easement Areas, the Center Association shall represent all of the Owners and the Condominium Associations in any condemnation proceedings or in negotiations, settlements and agreements with the condemning authority, and the proceeds of condemnation shall be allocated and distributed among the Condominium Owners as follows: the proceeds shall first be distributed by the Center Association to effect repairs and replacement of the Center in a manner as will affect and permit the reasonable on-

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going operation of the Center excluding the portions of the Center which are so taken. The Center Association shall cause an evaluation of the effects of such taking by eminent domain on the structure of the Center and the future operation of the Center. The Center Association shall engage such professionals, such as architects, engineers, attorneys and real property managers to assess the Center’s operation excluding such portions of the Center which are so taken. The Center Board shall determine whether to effect a repair and reconstruction of the Center in light of such taking. Any remaining funds, after payment of any and all fees and expenses incurred by the Center Association relating to such condemnation and reconstruction, shall be distributed among the Condominium Owners as follows: the proceeds shall be distributed to each Condominium Association based upon the valuation of each of the Components of the Center which each Condominium Association represents and administers. Each Condominium Association shall allocated and distribute the portions allocated and distributed to it to its members based upon the provisions stated in the Condominium Declaration for the respective Condominium Project which the Condominium Association administers and represents.

10.3. Taking of Condominium Units. If a Condominium Unit or Condominium Units are taken, but no part of the Center Association Common Area or Center Common Easement Areas of the Center are taken, and no part of common areas of a Condominium Project are taken: the proceeds shall be allocated and disbursed by the Center Association to the Condominium Owner or Condominium Owners who have been effected by such taking, subject to the rights of the Owners’ First Mortgagees. In the case of a temporary taking, any award shall belong to the Condominium Owner or Condominium Owners of the affected Condominium Units, subject to the rights of the Owners’ First Mortgagees.

10.4. Restoration. If all or any part of the Center Association Common Area or Center Common Easement Areas are taken by eminent domain, but not the entire Center, then the proceeds of condemnation shall first be used to restore or replace the portion of the Center Association Common Area, Center Common Easement Areas or Joint Easement Areas affected by condemnation to maintain the Center as a viable and operable development, if such restoration or replacement is reasonably possible, and any remaining funds, after payment of any and all fees and expenses incurred by the Center Association relating to such condemnation, shall be distributed among the Condominium Owners as follows: the proceeds shall be distributed to each Condominium Association based upon the valuation of each of the Components of the Center which each Condominium Association represents and administers. Each Condominium Association shall allocate and distribute the portions allocated and distributed to it to its members based upon the provisions stated in the Condominium Declaration for the respective Condominium Project which the Condominium Association administers and represents.

10.4.1. If, after any partial condemnation of the Center, the proceeds of any award for such condemnation are not sufficient to pay for the costs to restore, repair or replace the remaining portions of the Center Association Common Area, Center Common Easement Areas or Joint Easement Areas affected by condemnation, then the Center Association shall levy a Special Center Assessment for the amount of the costs of such restoration, repair and replacement, following and applying the provisions of Section 9.2 hereof.

10.4.2. If necessary, after any partial taking by condemnation, the remaining portion of the Center shall be resurveyed, as a common expense of the Center Association, to reflect such taking. ARTICLE 11. GENERAL PROVISIONS

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11.1. Enforcement. The Center Association, acting through the Center Board, shall

have the right to enforce, by any proceeding at law or in equity, all restrictions, conditions, covenants, reservations, liens, and charges now or hereafter imposed by the provisions of this Center Declaration, and in such action shall be entitled to recover reasonable attorneys' fees as are ordered by Court. Failure by the Center Association to enforce any covenant or restriction herein contained shall in no event be deemed a waiver of the right to do so thereafter. All Owners, tenants and other occupants of the Center, and each Condominium Association, are subject to and bound by the provisions of this Center Declaration. Owners shall require their tenants, other occupants and invitees, to observe all applicable provisions of this Center Declaration and shall incorporate this Center Declaration into the provisions of all tenant occupancy leases. The terms and provisions of this Center Declaration shall be deemed to be incorporated by reference into each of the Condominium Declarations. Each Condominium Association and each Owner shall be entitled to enforce the terms and provisions of this Center Declaration by any proceeding at law or in equity, the restrictions, conditions, covenants, reservations, liens, and charges, now or hereafter imposed by the provisions of this Center Declaration, as such provisions pertains to the rights of such Condominium Association or Owner with respect to: the use and operation of Joint Use Easement Areas and Exclusive Easement Areas, the use and operation of Center Common Easement Areas, the rights of use of Center Association Common Areas and any rights expressly granted to a Condominium Project, a Condominium Association or a Condominium Owner under this Center Declaration.

11.2. Invalidity of Any Provision. Should any provision or portion hereof be declared invalid or in conflict with any law of the jurisdiction where this Center is situated, the validity of all other provisions and portions hereof shall remain unaffected and in full force and effect, and shall be interpreted and construed in a manner that most closely resembles the intent of the Declarant without regard to such invalid provision.

11.3. Term. The covenants and restrictions of this Center Declaration shall run with and bind the Property, and shall inure to the benefit of, and shall be binding upon, the Owner of any portion of the Property subject to this Center Declaration, their respective legal representatives, heirs, successors and assigns, for a term of seventy - five (75) years from the date this Center Declaration is recorded, after which time they shall be automatically extended for successive periods of ten (10) years, unless an instrument in writing, signed by the Owners with two-thirds (2/3rds) of the Condominium Units in each the Commercial Condominium Project and the Residential Condominium Project and all First Mortgagees, has been recorded within the year preceding the beginning of each successive period of ten (10) years, agreeing to terminate this Center Declaration.

11.4. Amendments. Prior to close of escrow on the conveyance of any Condominium Unit in the Center, Declarant may amend this Center Declaration, subject to obtaining the consent of its First Mortgagee, if any then exists. After conveyance of the first Condominium Unit in any portion of the Center, this Center Declaration may be amended only, subject to Section 11.6, by an instrument signed by the Presidents of each of the Commercial Condominium Association and of the Residential Condominium Association upon and after the obtaining of the affirmative vote and approval of a majority of the Owners of Condominium Units in the respective Condominium Projects with respect to such amendment. Any amendment must be certified in a writing executed and acknowledged by the President or Vice President of the Association and recorded in the Recorder's Office of the County of Zenith. In addition, as long as

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Declarant owns a Building Parcel or a Condominium Unit in the Center, any such amendment must be approved and executed by the Declarant.

11.5. Mortgagee Rights and Protections.

11.5.1. Notice by Owner. An Owner that mortgages its Building Parcel or Condominium Unit shall notify the Center Association in writing of the name and address of its mortgagee, provided that an Owner's failure to so notify the Center Association shall not affect the rights of a mortgagee.

11.5.2. Subordination. No breach of any covenant and/or restriction, nor the enforcement of any lien provision contained in this Center Declaration, shall render invalid the lien of any mortgage made in good faith and for value. All of the covenants, conditions and restrictions herein contained shall be binding upon and effective against any Owner whose title is derived through foreclosure, trustee sale, deed in lieu thereof, or otherwise.

(a) 0A First Mortgagee that takes title to a Building Parcel or Condominium Unit pursuant to a foreclosure of its mortgage or deed in lieu of foreclosure, or any purchaser at a foreclosure or trustee sale under a First Mortgage, shall take the Building Parcel or Condominium Unit free of any claims or liens for unpaid Assessments against the encumbered Building Parcel or Condominium Unit arising under this Center Declaration for Assessments or installments thereof and any other obligations which became due and payable prior to the time the mortgagee or such purchaser takes title thereto, unless such foreclosure or deed in lieu thereof has been caused or granted by an Owner to avoid payment of existing and unpaid Assessments. With respect to any unpaid Assessments, such Assessments shall be deemed to be common expenses collectible from all of the Building Parcels and Condominium Units within the Center, excluding the Building Parcel or Condominium Unit being acquired. After such First Mortgagee or purchaser therefrom takes title to a Building Parcel or Condominium Unit, a lien may be created thereon to secure or enforce all Assessments or installments thereof levied hereunder against such Building Parcel or Condominium Unit that become due and payable after such First Mortgagee or purchaser therefrom takes title.

(b) Mortgagees may jointly or singly pay any Assessment which is in default and take any action reasonably necessary to cure any other default of their mortgagors hereunder with the same effect as such cure by the mortgagor itself.

11.6. Restriction on Amendments to Center Documents or Change in Relationship. Notwithstanding any provision to the contrary contained elsewhere herein, without the prior written consent of the First Mortgagees (which consent shall be exercised in good faith and in a timely manner), this Center Declaration, the Articles of the Center Association or the Bylaws shall not be amended so as to:

(1) change the fundamental purpose for which the Center was created, or terminate or abandon the status of the Center or permit or allow the Owners or the Associations by act or omission to abandon, subdivide, encumber, sell or transfer the Center Association Common Area or Center Common Easement Areas or allow partition thereof;

(2) except as otherwise expressly provided in this Center Declaration, change the share of Assessments charged to, or the voting rights attributable to, any Building Parcel or Condominium Association;

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(3) except as otherwise expressly provided in this Center Declaration, change the provisions applicable to insurance so as to reduce the required coverage, or change the interest of any Owner in the allocation or distribution of insurance or condemnation proceeds;

(4) change the provisions applicable to reconstruction in the event of damage, or permit the use of insurance proceeds payable to or for the account of the Association or the Owners by reason of loss or damage to any portion of the Center to be used for other than the repair, replacement or reconstruction thereof, except as provided in Article 9 of this Center Declaration;

(5) change any provision which, by its terms, is specifically for the benefit of mortgagees or specifically confers rights on mortgagees;

(6) change the provisions of any part of this Section 11.6.

11.7. Miscellaneous Rights of Mortgagees. In addition to the foregoing, each First Mortgagee whose name and address have been furnished to the Center Association, whether by an Owner or by such First Mortgagee, shall have the right to:

(1) receive written notice of all meetings of the Owners and of the Center Board upon written request to the Center Association;

(2) be present at any meetings of the Center Association or the Center Board and participate therein by calling to the attention of the Center Association and/or the Center Board violations of this Center Declaration and by referring to other matters affecting the interests of the First Mortgagee;

(3) furnish information to the Center Board concerning the status of any such First Mortgage;

(4) receive copies of any or all of the financial statements concerning the Center sent to the Owners at the same time and in the same manner as the Owners, upon written request therefor to the Center Association; and

(5) participate in negotiations regarding the value and extent of any loss affecting a Building Parcel or Condominium Project which is subject to such First Mortgagee's First Mortgage (i) under a policy of insurance carried by the Center Association, or (ii) in any proceedings incident to any condemnation affecting such Building Parcel or Condominium Project.

11.7.1. Whenever the consent of a First Mortgagee is required by this Center Declaration, any action taken without such consent shall not bind such First Mortgagee or its successor.

11.7.2. Title by Foreclosure. Except to the extent otherwise expressly provided herein, all of the provisions contained in this Center Declaration shall be binding on and effective against any Owner whose title to any Building Parcel or any portion thereof is acquired by foreclosure, trustee's sale, deed in lieu of foreclosure, or otherwise.

11.7.3. Copies of Center Documents. The Center Association shall make available to Owners and mortgagees, and to holders, insurers or guarantors of any First

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Mortgage, current copies of the Center Declaration, Center Bylaws, Center Articles or Center Rules and the books, records and financial statements of the Center Association. "Available" means available for inspection and copying, upon request, during normal business hours or under other reasonable circumstances. The Center Board may impose a fee for providing the foregoing which may not exceed the reasonable cost to prepare and reproduce the requested documents.

11.7.4. Audited Statement. Any holder of a First Mortgage shall be entitled, upon written request, to have an audited financial statement for the immediately preceding fiscal year prepared at its expense if one is not otherwise available. Such statement shall be furnished within a reasonable time following such request.

11.7.5. Notice of Action. Upon written request to the Center Association, identifying the name and address of the First Mortgagee, and the Building Parcel number or the Condominium Unit number, or address, such First Mortgagee will be entitled to timely written notice of:

(1) any condemnation loss or any casualty loss which affects a material portion of the Center, any Center Association Common Area, or any Building Parcel on which there is a First Mortgage held, insured, or guaranteed by such First Mortgagee;

(2) any default in performance of obligations under the Center Documents or delinquency in the payment of Assessments or charges owed by an Owner of a Building Parcel or Condominium Unit subject to a First Mortgage which remains uncured for a period of sixty (60) days;

(3) any lapse, cancellation or material modification of any insurance policy or fidelity bond maintained by the Center Association.

(4) The Center Association shall discharge its obligation to notify First Mortgagees by sending written notices required herein to such parties, at the address given on the current request for notice, in the manner prescribed by Section 11.10.

11.7.6. Payment of Taxes or Insurance by First Mortgagees. First Mortgagees may, jointly or singly, pay taxes or other charges which are in default and which may or have become a charge against the Center Association Common Area or Center Common Easement Areas and may pay overdue premiums on hazard insurance policies, or secure new hazard insurance coverage if coverage has not been renewed with ten (10) days prior to the lapse of a policy, for such Center Association Common Area or Center Common Easement Area and First Mortgagees making such payment shall be owed immediate reimbursement therefor from the Center Association, provided that said mortgagees have given notice to the Center Association prior to the making of such payment(s) and the Center Association has failed to pay the same.

11.8. Termination of Any Responsibility of Declarant. In the event Declarant shall convey all of its rights, title and interest in and to the Property to any person then and in such event, Declarant shall be relieved of the performance of any further duty or obligation hereunder, and such person shall be obligated to perform all such duties and obligations of the Declarant.

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11.9. Owners' Compliance. Each Owner, tenant or occupant of a Building Parcel or Condominium Unit shall comply with the provisions of this Center Declaration, and (to the extent they are not in conflict with the Declaration) the Articles and Bylaws, and the decisions and resolutions of the Center Association or the Center Board, as lawfully amended from time to time. Failure to comply with any such provisions, decisions, requirements or resolutions shall be grounds for an action (1) to recover sums due, (2) for damages, (3) for injunctive relief, (4) for costs and attorneys' fees, or (5) any combination of the foregoing.

11.9.1. All agreements and determinations lawfully made by the Center Association in accordance with the voting percentages established in this Center Declaration, or in the Articles or the Bylaws, shall be deemed to be binding on all Owners, their successors and assigns.

11.10. Notice. Any notice permitted or required by this Center Declaration, the Center Articles or Center Bylaws, may be delivered personally, or by prepaid overnight courier, or by facsimile, or by mail. If delivery is by mail, it shall be deemed to have been delivered seventy-two (72) hours after a copy of the same has been deposited in the United States mail, first class or registered, postage prepaid, addressed to the person to be notified at the current address given by such person to the Secretary of the Board or addressed to the Building Parcel or Condominium Unit of such person if no address has been given to the Secretary. Delivery shall be effective upon receipt if delivered by courier or in person. Delivery by facsimile shall be effective upon the day of receipt if received before 5:00 P.M. on a business day. If received after 5:00 P.M. or on a holiday in the place of receipt, delivery by facsimile shall be effective on the next business day.

11.11. BINDING ARBITRATION. IN ANY CASE WHERE THIS CENTER DECLARATION PROVIDES FOR DISPUTES TO BE DECIDED BY ARBITRATION, OR ANY OWNER, CONDOMINIUM ASSOCIATION OR THE CENTER ASSOCIATION ELECTS TO ARBITRATE ANY DISPUTE ARISING HEREUNDER, THE PROCEDURE SHALL BE AS FOLLOWS: THE AGGRIEVED PARTY OR PARTIES SHALL NOTIFY THE OTHER PARTY OR PARTIES OF THE GRIEVANCE IN WRITING. WHEN SUCH A NOTICE IS RECEIVED BY A PARTY, SUCH PARTY SHALL PROMPTLY INVESTIGATE, INSPECT, MEET, DISCUSS, OR TAKE SUCH OTHER ACTION AS IS REASONABLY APPROPRIATE UNDER THE CIRCUMSTANCES. APPROPRIATE ACTION SHALL INCLUDE, WITHOUT LIMITATION, PROMPT COMMUNICATION WITH THE AGGRIEVED PARTY OR PARTIES, AND A PROPOSED COURSE OF ACTION TO RESOLVE THE PROBLEM. IF THE PARTIES ARE UNABLE TO RESOLVE THE PROBLEM WITHIN A REASONABLE PERIOD (NOT TO EXCEED NINETY (90) DAYS AFTER THE FIRST NOTICE OF CLAIM, CONTROVERSY OR DISPUTE), THE MATTER SHALL BE SUBMITTED TO BINDING ARBITRATION, PROVIDED THAT IF THE CLAIM, CONTROVERSY OR DISPUTE INVOLVES A SUM NOT IN EXCESS OF THE JURISDICTIONAL LIMIT OF THE SMALL CLAIMS COURT IN ZENITH, XXXXXXXXX, THE AGGRIEVED PARTY SHALL HAVE THE OPTION OF TAKING THE MATTER TO SMALL CLAIMS COURT IN LIEU OF BINDING ARBITRATION. ANY CLAIM, CONTROVERSY OR DISPUTE SUBMITTED TO ARBITRATION SHALL BE SETTLED BY ARBITRATION IN THE CITY OF ZENITH, XXXXXXXXX. EXCEPT AS OTHERWISE PROVIDED HEREIN WITH RESPECT TO THE SELECTION AND NUMBER OF ARBITRATORS, THE ARBITRATION SHALL BE CONDUCTED IN ACCORDANCE WITH THE RULES OF COMMERCIAL ARBITRATION OF THE AMERICAN ARBITRATION ASSOCIATION OR ITS SUCCESSOR, PROVIDED THAT THE PARTIES SHALL HAVE THE RIGHTS OF DISCOVERY PROVIDED UNDER THE PROVISIONS OF XXXXXXXXX CODE OF CIVIL PROCEDURE SECTION 1283.05, OR ANY SUCCESSOR AMENDED STATUTE OR LAW CONTAINING SIMILAR PROVISIONS. EACH PARTY SHALL APPOINT ONE ARBITRATOR AND NOTIFY

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THE OTHER PARTY OF SUCH APPOINTMENT. PROMPTLY AFTER THEIR APPOINTMENT, THE ARBITRATORS SHALL MEET AND SHALL ATTEMPT TO RESOLVE THE CLAIM, CONTROVERSY OR DISPUTE SUBMITTED TO ARBITRATION HEREUNDER. THE ARBITRATORS SHALL HAVE NO POWER TO MODIFY ANY OF THE PROVISIONS OF THIS CENTER DECLARATION OR THE OTHER CENTER DOCUMENTS, AND THEIR JURISDICTION IS LIMITED ACCORDINGLY. IF THE ARBITRATORS ARE NOT ABLE TO AGREE UPON A RESOLUTION OF THE MATTER SUBMITTED TO ARBITRATION, THE ARBITRATORS SHALL AGREE UPON AND APPOINT A THIRD ARBITRATOR AND EACH ARBITRATOR SHALL SUBMIT TO THE THIRD ARBITRATOR IN WRITING HIS OR HER PROPOSED DETERMINATION OF SUCH MATTER. THE THIRD ARBITRATOR SHALL REVIEW THE MATTER SUBMITTED TO ARBITRATION AND EACH PARTY SHALL BE ENTITLED TO PRESENT EVIDENCE WITH RESPECT TO ITS POSITION TO THE THIRD ARBITRATOR. AT THE REQUEST OF ANY PARTY TO THE ARBITRATION PROCEEDING, THE THIRD ARBITRATOR SHALL CONDUCT A HEARING AT WHICH ALL PARTIES MAY PRESENT EVIDENCE SUPPORTING THE PROPOSED DETERMINATION OF THEIR RESPECTIVE ARBITRATORS. THE THIRD ARBITRATOR SHALL RESOLVE THE MATTER BY CHOOSING THE PROPOSED DETERMINATION THAT MOST CLOSELY CORRESPONDS TO THE DETERMINATION THAT THE THIRD ARBITRATOR WOULD HAVE MADE IF HE OR SHE WERE TO HAVE DETERMINED THE MATTER INDEPENDENTLY. THE PARTY WHOSE ARBITRATOR'S DETERMINATION IS SO CHOSEN SHALL BE DEEMED TO BE THE PREVAILING PARTY IN SUCH ARBITRATION. THE EXPENSES OF ARBITRATION SHALL BE BORNE EQUALLY BY THE PARTIES, PROVIDED THAT EACH PARTY SHALL BE RESPONSIBLE FOR THE FEES AND EXPENSES OF ITS OWN EXPERTS, EVIDENCE AND ATTORNEYS; PROVIDED, HOWEVER, THAT IF THE FINAL DETERMINATION IS MADE BY A THIRD ARBITRATOR, THE EXPENSES AND FEES OF THE THIRD ARBITRATOR SHALL BE PAID BY THE NON-PREVAILING PARTY AND THE THIRD ARBITRATOR MAY, IN HIS OR HER DISCRETION, REQUIRE THE NON-PREVAILING PARTY TO PAY THE ATTORNEYS' AND EXPERTS' FEES OF THE PREVAILING PARTY. JUDGMENT UPON THE AWARD RENDERED BY THE ARBITRATORS MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF.

11.12. Number; Gender. The singular and plural number and the masculine, feminine and neuter gender shall each include the other where the context requires.

11.13. Joint and Several Liability. When the Owner of a Building Parcel or Condominium Unit is composed of more than one person or entity, each such person or entity shall be jointly and severally liable for payment of Assessments, and performance of all obligations (including without limitation, indemnification obligations) arising under any provision of the Center Documents with respect to such Building Parcel or Condominium Unit or the ownership thereof.

11.14. Not a Public Dedication. Nothing herein contained shall be deemed to be a gift or dedication of any portion of the Center to the general public, for the general public or for any public use or purpose whatsoever, it being the intention and understanding of the Owners and the Center Association that this Center Declaration shall be strictly limited to and for the purposes herein expressed for the development, maintenance and operation of the Center on private property solely for the benefit of the Center Association and the Owners. Pursuant to the provisions of this Section 11.14, and notwithstanding any other provision to the contrary herein contained, the Center Association shall have the right to restrict public access as reasonably necessary to prevent public dedication and to prevent or prohibit the use of the Center, or any portion thereof, by any person, for any purpose inimical to the operation of a first class private Center as contemplated by this Center Declaration. The Center Association, by appropriate rules

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and regulations shall have the right to regulate any use of the Center by any person and prohibit such use for any purpose which is inimical to such operation as contemplated by this Center Declaration.

11.15. Attorneys' Fees. If there is any legal action or proceeding (other than Arbitration proceedings as provided in Section 11.11) to enforce any provision of this Center Declaration or to protect or establish any right or remedy, the unsuccessful party to such action or proceeding shall pay to the prevailing party all costs and expenses (including, without limitation, attorneys' fees and costs) incurred by such prevailing party in such action or proceeding. In addition, the unsuccessful party shall pay any costs and expenses (including, without limitation, attorneys' fees and costs) incurred by the prevailing party in enforcing or appealing any judgment rendered in any such legal action or proceeding, which costs and expenses shall be recoverable separately from and in addition to any other amount included in such judgment. This Section 11.15 is intended to be severable from the other provisions of this Center Declaration, and shall survive and not be merged into any such judgment.

11.16. Estoppel Certificates. The Center Association and each Owner, at any time and from time to time upon not less than ten (10) days' prior written notice from any other Owner or the Center Association, shall execute, acknowledge and deliver to the requesting party and to any prospective purchaser, tenant or mortgagee of any part of or interest in the Center, a certificate of the Center Association or such Owner stating: (i) that this Center Declaration is unmodified and in full force and effect (or, if there have been modifications, that this Center Declaration is in full force and effect as modified and stating the modifications), (ii) to the best of such party's knowledge, whether or not there are then existing any defenses against the enforcement of any of the obligations of such party under this Center Declaration (and, if so, specifying same), (iii) to the best of such party's knowledge, whether or not there are then existing any defaults by the Owner or the Center Association in the performance of its obligations under this Center Declaration (and, if so, specifying same), (iv) the dates, if any, to which Assessments and other charges under this Center Declaration have been paid by such party and the amounts of the most recently charged Assessments, (v) the names of the tenants of its Building Parcel or Condominium Unit (applicable only to certificates hereunder given by the Owners), and (vi) any other information that may reasonably be required by any of such persons. It is intended that any such certificate delivered pursuant to this Section 11.16 may be relied upon by the Center Association, the requesting Owner, or any prospective purchaser, tenant or mortgagee of any part of the Center.

11.17. Cooperation. In fulfilling obligations and exercising rights under this Center Declaration, each Owner shall cooperate with each other and the Center Association to promote the efficient operation of the Center and harmonious relationships among the Owners and to protect the value of each of their respective interests in the Center. To that end, except for information which an Owner reasonably deems to be confidential, or which may be the subject of litigation, or which may be prohibited from disclosure by court order, each Owner shall share information with the other Owners relating to matters which are the subject of this Center Declaration.

11.18. Reasonable Consents. All consents and approvals of any of the Owners and of any holders of First Mortgages shall not be unreasonably withheld or delayed. Any disapproval of or failure of consent to any matter hereunder shall be in writing and shall state in reasonable detail the reason or reasons therefore.

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11.19. Exchange of Information. Where reasonably and appropriate each Owner shall from time to time after the date hereof furnish, execute and acknowledge without charge (except where elsewhere provided herein) such other instruments, documents, materials and information as any other Owner may reasonably request, including grants of rights of way or easements, in order to confirm to such requesting Owner the benefits contemplated by this Center Declaration so long as any such request does not restrict or abridge the benefits granted to the other Owners hereunder.

11.20. Additional Easements. If it becomes clear that additional easements or rights of use or rights of way among portions of the Center are necessary or desirable to effectuate the purposes of this Center Declaration, provided said proposed additional easements will not materially adversely interfere with the use and occupancy of any portion of the Center or a Building Parcels, materially affect access to or operation of any portion of the Center or create any additional expenses for any of the Owners, and subject to the reasonable consent of the a Majority Vote of Center Members, Declarant hereby reserves to itself and, at such time Declarant no longer owns any portion of the Center, to the Center Association, the right to create and grant such additional easements as are necessary and desirable. Such new easements shall be designated and described on an amendment to this Center Declaration signed by the Declarant and the Owners holding a Majority Vote of Center Members, shall be recorded with the County Recorder of Zenith County and shall have the same force, effect and priority as if such new easements were originally contained herein.

11.21. Construction. The provisions of this Center Declaration shall be interpreted and construed to the end that the Center and each of the Building Parcels, and the Condominium Projects therein, shall remain a first class mixed use commercial and residential development.

11.22. Limitation of Restrictions on Declarant. Declarant is undertaking the work of construction of the Center and improvements which constitute the Center, and will be marketing and selling the Center, and the Condominium Units in the Residential Condominium Project and in the Commercial Condominium Project. The completion of that work and the sale, rental, and other disposal of those Condominiums is essential to the establishment and welfare of the Center. In order that the work may be completed and the Center be established as a fully developed and occupied as a mixed use residential and commercial development as rapidly as possible, nothing in this Center Declaration shall be understood or construed to:

A. Prevent Declarant, its contractors, or subcontractors from doing within or upon the Center or any Condominium Project or Condominium whatever is reasonably necessary or advisable in connection with the completion of the work; or

B. Prevent Declarant or its representatives from erecting, constructing and maintaining within and upon the Center (except upon Condominium Units owned by others), such structures as may be reasonable and necessary for the conduct of its business of completing the work and establishing said Center as a mixed use residential and commercial development and disposing of Condominium Units, Building Parcels or other interests in the Center by sale, lease or otherwise; or

C. Prevent Declarant from conducting within or upon the Center (except upon Condominium Units owned by others) its business of completing the work and of establishing a plan of condominium ownership for the Commercial Condominium Project and the Residential Condominium Project, and the Center Association Condominium Units, Building Parcels or other interests in the Center by sale, lease or otherwise (including use of one (1) or more Condominium Units as a sales office); or

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D. Prevent Declarant from maintaining or displaying such sign(s),

pennants and flag(s) within or upon the Center (except upon Condominium Units owned by others) as may be necessary for the sale, lease or disposition thereof; or

E. Subject Declarant to the architectural review provisions of Article 6 for the construction of the Center, or any Condominium Project, any Condominium or other improvement in, upon or on the Center.

The foregoing rights of Declarant shall terminate upon sale of Declarant's entire interest in the Center. So long as Declarant, its successors and assigns, owns one (1) or more of the Condominium Units established and described in this Center Declaration, Declarant, and its successors and assigns, shall be subject to the provisions of this Center Declaration as to such Condominium Units.

11.23. Residential Condominium Unit Exclusion From CB-1 REA. Provided that, and as long as, a Residential Condominium Unit is located and operated as an individual residential condominium unit pursuant to the requirements of Section 2.3A of the CB-1 REA, such individual Residential Condominium Unit shall not be individually bound by or subject to the CB-1 REA.

11.23.1. Notwithstanding the foregoing, the Residential Condominium Association shall be subject to the obligations included in this Center Declaration, as required under Section 2.3A and Section 8.3 of the CB-1 REA, for and with respect to [1] payment of the allocation of CB-1 Assessments allocated and assessed under this Center Declaration to the Residential Condominium Association and the levying of such allocation of CB-1 Assessments as a portion of the assessments levied and collected by the Residential Condominium Association from the members of the Residential Condominium Association, and [2] the collateral assignment by the Residential Condominium Association to the Center Association of the assessment lien rights of the Residential Condominium Association to the Center Association, and to each Nondefaulting Party as defined in the CB-1 REA and to the Redevelopment Agency, of the Residential Condominium Association’s rights of assessment, assessment liens and rights of enforcement under the Residential Condominium Declaration, which rights enforce and secure each Residential Condominium Owner’s obligation to pay to the Residential Condominium Association an assessment for its share of all costs and expenses for which the Residential Condominium Association is responsible under the terms of this Center Declaration, as set forth in Section 8.3 of the CB-1 REA, Section 4.13 of the Residential Condominium Project Declaration, and Section 4.10 of this Center Declaration.

11.23.2. Furthermore, notwithstanding the foregoing, Owners of Residential

Condominium Units shall be entitled to utilize the easements granted to the Market Street Parcel Owner under the CB-1 REA, with the express understanding, however, that the individual Owners of Residential Condominium Units shall have no right to enforce such easement rights directly against the Redevelopment Agency, or against any of the Parties to the REA other than against the Center Association through this Center Declaration.

11.23.3. A Condominium Unit in the Residential Condominium Project shall be so excluded from the provisions of the CB-1 REA only if such Condominium Unit is used for residential and ancillary uses pursuant to the covenants set forth in Section 7.1.1. of this Center Declaration and in Article 11 of the CB-1 REA. If for any reason any such individual Residential Condominium Unit which was excluded from the CB-1 REA is no longer used as an individual residential condominium, then and thereupon, that Condominium Unit shall be deemed to have

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become subject to the provisions of the CB-1 REA without exclusion, and the Owner of such Condominium Unit shall execute such documents as may be required by any Party to the CB-1 REA to subject such Condominium Unit to the provisions of the CB-1 REA.

11.23.4. The provisions of this Center Declaration regarding the share of the CB-1 Assessment payable by the Residential Condominium Association, including this section 11.23 and sections 4.12, 4.2 and 4.12 of this Center Declaration, shall not be amended without the approval of Redevelopment Agency. Upon (1) the failure of the Center Association to pay any amount due under the CB-1 REA prior to the expiration of applicable notice, grace or cure periods under the CB-1 REA, and (2) the failure of an individual Residential Condominium Owner to pay any assessment levied against that condominium by the Residential Condominium Association or the Center Association, as applicable, prior to the expiration of reasonable applicable notice, grace or cure periods, the Nondefaulting Parties (as defined in the CB-1 REA) shall have the same right to enforce the assessment lien created by the Residential Condominium Declaration or this Center Declaration as the Residential Condominium Association or the Center Association would have but for the assignment provided herein.

11.24. Museum Unit Reverter Rights. If the Museum Unit is not conveyed to the owner of the museum parcel which adjoins the Center, or if the Declarant, or its successors, exercises its right of reverter as expressed in the CB-1 REA, then the Museum Unit shall remain, or become, as may then be applicable, a Condominium Unit in the Commercial Condominium Project free of all limitations and restrictions imposed under this Center Declaration as to the Museum Unit with respect to Assessments, liens, rights of enforcement, and similar such restrictions and limitations as expressed in the Center Declaration and in the CB-1 REA, and in such event, the Museum Unit shall become a Condominium Unit in the Commercial Condominium Project for use in any manner which is legal and appropriate to the Center under the laws and regulations of the Center and the CB-1 REA. The Declarant shall have the right to impose a supplemental declaration on the Center to incorporate such a Condominium Unit into the Center, under this Center Declaration, such that such Condominium Unit will have the rights of a Condominium Unit in the Commercial Condominium Project and will be obligated for its share of Assessments and other obligations under this Center Declaration imposed on all other such Condominium Units in the Commercial Condominium Project which are not Excluded Units under the CB-1 REA.

11.25. Center Association Limitation of Liability. The Center Association shall not

be liable to any Condominium Association, any Condominium Owner, or any occupant or user of any portion of the Center, for any failure of water supply or other utility facilities or other services which are to be obtained or provided by the Center Association, or paid for as a Common Expense of the Center, or for injury or damage to person or property caused by the elements or by the Owner of any Condominium Unit, or any other person, or resulting from electricity, water, ice or other elements which may leak or flow from or over any portion of the Center or from any pipe, drain, conduit, appliance or equipment within the Center. The Center Association shall not be liable to any Condominium Owner for loss or damage, by theft or otherwise, or articles which may be stored upon any of the Center Association Common Areas, Center Common Easement Areas, or Joint Use Easement Areas. No diminution or abatement of any Center Assessments shall be claimed or allowed for inconvenience or discomfort arising from the making of repairs or improvements to the Center Association Common Areas, Center Common Easement Areas, or Joint Use Easement Areas, or from any action taken by the Center Association to comply with any law, ordinance or with the order or directive of any governmental authority.

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11.26. Covenants and Agreements Run With Land. All of the easements, covenants, rights covenants, agreements, reservations, restrictions and conditions herein contained touch and concern the Property and land of the Center, and each portion thereof, shall constitute covenants running with the Property and land and equitable servitudes, shall run with the Property and land of the Center and each Building Parcel, Condominium Project and Condominium Unit contained therein, and inure to the benefit of and shall be binding upon the Condominium Projects, the Condominium Associations, the Owners, and each subsequent holder of any interest in any portion of the Center, and their grantees, mortgagees, heirs, successors, assigns and personal representatives, during each of their respective terms of ownership, with the same full force and effect as though set forth in full in every grant, conveyance or demise of the Center or any part thereof. IN WITNESS WHEREOF, the undersigned, being the Declarant herein, has executed this Center Declaration this __________ day of ____________________, 20___. ABC Entertainment Partners LP, a XXXXXXXXX Limited Partnership

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STATE OF XXXXXXXXX ) ) ss.

COUNTY OF __________________ )

On this ____ day of _______________, 20__, before me, _______________________, a notary public for the state, personally appeared _________________________________________, known to me or proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument.

WITNESS my hand and official seal.

Notary Public, State of XXXXXXXXX

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EXHIBIT “A” ASSESSMENT PERCENTAGES: THE RESPECTIVE PERCENTAGE OF ASSESSMENTS ALLOCATED AND CHARGED TO EACH CONDOMINIUM ASSOCIATION FOR EACH COMPONENT OF THE CENTER PURSUANT TO SECTION 4.5 SHALL BE AS FOLLOWS: COMPONENT ASSESSMENT PERCENTAGE COMMERCIAL COMPONENT LOT 125 [PARCEL 1] 64.33% RESIDENTIAL COMPONENT 35.67% LOT 126 [PARCEL 2]

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EXHIBIT “B” CENTER COMMON EASEMENT AREAS. CERTAIN AREAS WITHIN EACH OF THE BUILDING PARCELS ARE RESERVED AS NON-EXCLUSIVE RECIPROCAL EASEMENTS, AS THE CENTER COMMON EASEMENT AREAS, FOR NON-EXCLUSIVE EASEMENTS RESERVED FOR AND GRANTED TO THE CENTER ASSOCIATION OVER AND ACROSS PORTIONS OF THE CENTER THAT ARE CONDOMINIUM UNITS OR COMMON AREAS OF THE TWO CONDOMINIUM PROJECTS FOR THOSE FACILITIES OR UTILITY LINES AND SERVICES THAT ARE PROVIDED FOR USE AND OPERATION BY THE CENTER ASSOCIATION FOR THE USE AND BENEFIT OF ALL OF THE OWNERS OF CONDOMINIUM UNITS IN THE CENTER AS SET FORTH IN THIS CENTER DECLARATION. THE CENTER COMMON EASEMENT AREAS LOCATED WITHIN THE COMMERCIAL COMMON AREAS OF THE COMMERCIAL CONDOMINIUM PROJECT SHALL BE SHOWN ON THE COMMERCIAL MAP AS THOSE AREAS DESIGNATED BY THE LETTERS “CCEA”. THE CENTER COMMON EASEMENT AREAS LOCATED WITHIN THE RESIDENTIAL CONDOMINIUM PROJECT ARE THOSE AREAS WITHIN THE RESIDENTIAL COMMON AREA OF THE RESIDENTIAL PROJECT SHOWN AND DESCRIBED ON EXHIBIT “B-1” OF THIS CENTER DECLARATION AS CENTER COMMON EASEMENT AREAS DESIGNATED BY THE LETTERS “CCEA”. ANY GRANT OR CONVEYANCE OF AN INTEREST IN AND TO THE COMMERCIAL COMMON AREAS OR THE RESIDENTIAL COMMON AREAS SHALL BE SUBJECT TO ALL OF THE CENTER COMMON EASEMENT AREAS ESTABLISHED BY THIS CENTER DECLARATION.

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EXHIBIT “B-1” CENTER COMMON EASEMENT AREAS LOCATED WITHIN RESIDENTIAL PROJECT.

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EXHIBIT “C” EXCLUSIVE EASEMENTS AREAS. The Exclusive Easement Areas within the Commercial Project are shown on the Commercial Map as those areas designated by the letter “E” followed by the number of the Commercial Unit {designated below as [UNIT] followed by a number corresponding to the number of the Commercial Parcel shown on the Commercial Map} to which the Exclusive Easement is appurtenant or by the letters RES if the Exclusive Easement is appurtenant to the Residential Condominium Project. 1. E-5(1): EXCLUSIVE EASEMENT TO SPORTS CLUB UNIT [UNIT 5] FOR ELEVATOR EASEMENT [PIT

AND ELEVATOR] [LEVELS: B-5; B-4; B-3; B-2; B-1; 5TH AND 5M] 2. E-5(2): EXCLUSIVE EASEMENT TO SPORTS CLUB UNIT [UNIT 5] FOR SPORTS CLUB LAUNDRY

ROOM [LEVEL: B-2] 3. E-5(3): EXCLUSIVE EASEMENT TO SPORTS CLUB UNIT [UNIT 5] FOR LAUNDRY CHUTE [LEVELS: B-

1; GROUND; 5TH; AND 5M] 4. E-5(4): EXCLUSIVE EASEMENT TO SPORTS CLUB UNIT [UNIT 5] FOR SPORTS CLUB ELEVATOR PIT

[LEVEL: GROUND] 5. E-7(1)[A]: EXCLUSIVE EASEMENT TO HOTEL UNIT [UNIT 7] FOR ELEVATOR AND MACHINE ROOM

[LEVEL: B-3] 6. E-7(1)[B]: EXCLUSIVE EASEMENT TO HOTEL UNIT [UNIT 7] FOR ELEVATOR AND MACHINE ROOM

[LEVEL: B-3] 7. E-7(2): EXCLUSIVE EASEMENT TO HOTEL UNIT [UNIT 7] FOR ELEVATOR MACHINE ROOM AND

HOTEL LAUNDRY EXHAUST [LEVEL: B-1] 8. E-7(3): EXCLUSIVE EASEMENT TO HOTEL UNIT [UNIT 7] FOR ELEVATOR MACHINE HOTEL

LAUNDRY CHUTE [LEVEL: B-1; GROUND; 2D; 3D AND 4TH] 9. E-7(4): EXCLUSIVE EASEMENT TO HOTEL UNIT [UNIT 7] FOR HOTEL ENTRY LOBBY; HOTEL

SHUTTLE ELEVATORS AND HOTEL BACK OF HOUSE AREAS [LEVEL: GROUND; 2D; 3D AND 4TH]

10. E-7(5): EXCLUSIVE EASEMENT TO HOTEL UNIT [UNIT 7] FOR HOTEL GUEST ELEVATORS [LEVELS:

3D AND 4TH] 11. E-7(6): EXCLUSIVE EASEMENT TO HOTEL UNIT [UNIT 7] FOR HOTEL BAGGAGE AREA [LEVEL:

GROUND] 12. E-RES(1): EXCLUSIVE EASEMENT TO RESIDENTIAL PARCEL FOR RESIDENTIAL TRASH CHUTE AND

TRASH ROOM [LEVELS: B-1; GROUND; 2D; 3D; 4TH; 5TH; 6TH AND 7-16 ] 13. E-RES(2): EXCLUSIVE EASEMENT TO RESIDENTIAL PARCEL FOR RESIDENTIAL LOBBY AREA AND

RESIDENTIAL ELEVATORS [LEVEL: GROUND] 14. E-RES(3): EXCLUSIVE EASEMENT TO RESIDENTIAL PARCEL FOR RESIDENTIAL ELEVATORS

[LEVELS: B-1; GROUND; 2D; 3D; 4TH; 5TH; 6TH AND 7-16] 15. E-RES(4): EXCLUSIVE EASEMENT TO RESIDENTIAL PARCEL FOR RESIDENTIAL WATER RISERS

[LEVELS: 6TH AND 7-16] 16. E-RES(5) EXCLUSIVE EASEMENT TO RESIDENTIAL PARCEL FOR RESIDENTIAL HOTEL ELEVATORS

OVERRUN [LEVEL: ROOF LEVEL] EXHBIT C [CONTINUED] THE FOLLOWING DESCRIBES THE LOCATION OF EXCLUSIVE EASEMENTS ON EACH LEVEL OF THE BUILDING AS SHOWN ON THE COMMERCIAL MAP

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Level B-5 Sheet 6 EXCLUSIVE EASEMENT AREAS: E-5(1): SPORTS CLUB UNIT EXCLUSIVE EASEMENT [UNIT 5] ELEVATOR EASEMENT [PIT] Level B-4 Sheet 7 EXCLUSIVE EASEMENT AREAS: E-5(1): SPORTS CLUB UNIT [UNIT 5] EXCLUSIVE EASEMENT ELEVATOR Level B-3 Sheet 8 EXCLUSIVE EASEMENT AREAS: E-5(1): SPORTS CLUB UNIT [UNIT 5] EXCLUSIVE EASEMENT FOR ELEVATOR E-7(1)[A]: HOTEL UNIT [UNIT 7] EXCLUSIVE EASEMENT FOR ELEVATOR AND MACHINE ROOM E-7(1)[B]: HOTEL UNIT [UNIT 7] EXCLUSIVE EASEMENT FOR ELEVATOR AND MACHINE ROOM

Level B-2 Sheet 9 EXCLUSIVE EASEMENT AREAS: E-5(1): SPORTS CLUB UNIT [UNIT 5] EXCLUSIVE EASEMENT FOR ELEVATOR E-5(2): SPORTS CLUB UNIT [UNIT 5] EXCLUSIVE EASEMENT FOR SPORTS CLUB LAUNDRY ROOM E-RES(1) RESIDENTIAL PARCEL EXCLUSIVE EASEMENT FOR RESIDENTIAL TRASH CHUTE AND TRASH

ROOM Level B-1 Sheet 10 EXCLUSIVE EASEMENT AREAS: E-5(1): SPORTS CLUB UNIT [UNIT 5] EXCLUSIVE EASEMENT FOR ELEVATOR E-5(3): SPORTS CLUB UNIT [UNIT 5] EXCLUSIVE EASEMENT FOR LAUNDRY CHUTE E-7(2): HOTEL UNIT [UNIT 7] EXCLUSIVE EASEMENT FOR ELEVATOR MACHINE ROOM AND HOTEL

LAUNDRY EXHAUST E-7(3): HOTEL UNIT [UNIT 7] EXCLUSIVE EASEMENT FOR ELEVATOR MACHINE HOTEL LAUNDRY

CHUTE E-RES(1) RESIDENTIAL PARCEL EXCLUSIVE EASEMENT FOR RESIDENTIAL TRASH CHUTE AND TRASH

ROOM E-RES(3) RESIDENTIAL PARCEL EXCLUSIVE EASEMENT FOR RESIDENTIAL ELEVATORS Level GROUND FLOOR Sheet 11/12 EXCLUSIVE EASEMENT AREAS: E-5(3): SPORTS CLUB UNIT [UNIT 5] EXCLUSIVE EASEMENT FOR SPORTS CLUB LAUNDRY CHUTE E-5(4): SPORTS CLUB UNIT [UNIT 5] EXCLUSIVE EASEMENT FOR SPORTS CLUB ELEVATOR PIT E-7(3): HOTEL UNIT [UNIT 7] EXCLUSIVE EASEMENT FOR HOTEL LAUNDRY CHUTE E-7(4): HOTEL UNIT [UNIT 7] EXCLUSIVE EASEMENT FOR HOTEL SHUTTLE ELEVATORS AND HOTEL

BACK OF HOUSE AREAS E-7(6): HOTEL UNIT [UNIT 7] EXCLUSIVE EASEMENT FOR HOTEL BAGGAGE AREA E-RES(1) RESIDENTIAL PARCEL EXCLUSIVE EASEMENT FOR RESIDENTIAL TRASH CHUTE AND TRASH

ROOM E-RES(2) RESIDENTIAL PARCEL EXCLUSIVE EASEMENT FOR RESIDENTIAL LOBBY AREA AND RESIDENTIAL

ELEVATORS Level 2D FLOOR Sheet 13/15 EXCLUSIVE EASEMENT AREAS: E-7(3): HOTEL UNIT [UNIT 7] EXCLUSIVE EASEMENT FOR HOTEL LAUNDRY CHUTE E-7(4): HOTEL UNIT [UNIT 7] EXCLUSIVE EASEMENT FOR HOTEL SHUTTLE ELEVATORS AND HOTEL

BACK OF HOUSE ELEVATORS E-RES(1) RESIDENTIAL PARCEL EXCLUSIVE EASEMENT FOR RESIDENTIAL TRASH CHUTE E-RES(3) RESIDENTIAL PARCEL EXCLUSIVE EASEMENT FOR RESIDENTIAL ELEVATORS Level 3D FLOOR Sheet 14/15 EXCLUSIVE EASEMENT AREAS: E-7(3): HOTEL UNIT [UNIT 7] EXCLUSIVE EASEMENT FOR HOTEL LAUNDRY CHUTE E-7(4): HOTEL UNIT [UNIT 7] EXCLUSIVE EASEMENT FOR HOTEL SHUTTLE ELEVATORS E-7(5): HOTEL UNIT [UNIT 7] EXCLUSIVE EASEMENT FOR HOTEL GUEST ELEVATORS E-RES(1) RESIDENTIAL PARCEL EXCLUSIVE EASEMENT FOR RESIDENTIAL TRASH CHUTE E-RES(3) RESIDENTIAL PARCEL EXCLUSIVE EASEMENT FOR RESIDENTIAL ELEVATORS Level 4TH FLOOR Sheet 16

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EXCLUSIVE EASEMENT AREAS: E-7(3): HOTEL UNIT [UNIT 7] EXCLUSIVE EASEMENT FOR HOTEL LAUNDRY CHUTE E-7(4): HOTEL UNIT [UNIT 7] EXCLUSIVE EASEMENT FOR HOTEL SHUTTLE ELEVATORS E-7(5): HOTEL UNIT [UNIT 7] EXCLUSIVE EASEMENT FOR HOTEL GUEST ELEVATORS E-RES(1) RESIDENTIAL PARCEL EXCLUSIVE EASEMENT FOR RESIDENTIAL TRASH CHUTE E-RES(3) RESIDENTIAL PARCEL EXCLUSIVE EASEMENT FOR RESIDENTIAL ELEVATORS Level 5TH FLOOR Sheet 17 EXCLUSIVE EASEMENT AREAS: E-5(1): SPORTS CLUB UNIT [UNIT 5] EXCLUSIVE EASEMENT FOR SPORTS CLUB ELEVATOR E-5(3): SPORTS CLUB UNIT [UNIT 5] EXCLUSIVE EASEMENT FOR SPORTS CLUB LAUNDRY SHAFT E-RES(1) RESIDENTIAL PARCEL EXCLUSIVE EASEMENT FOR RESIDENTIAL TRASH CHUTE E-RES(3) RESIDENTIAL PARCEL EXCLUSIVE EASEMENT FOR RESIDENTIAL ELEVATORS Level 5M Sheet 19 EXCLUSIVE EASEMENT AREAS: E-5(1): SPORTS CLUB UNIT [UNIT 5] EXCLUSIVE EASEMENT FOR SPORTS CLUB ELEVATOR E-5(3): SPORTS CLUB UNIT [UNIT 5] EXCLUSIVE EASEMENT FOR SPORTS CLUB LAUNDRY SHAFT E-RES(1) RESIDENTIAL PARCEL EXCLUSIVE EASEMENT FOR RESIDENTIAL TRASH CHUTE E-RES(3) RESIDENTIAL PARCEL EXCLUSIVE EASEMENT FOR RESIDENTIAL ELEVATORS

Level 6TH FLOOR Sheet 20 EXCLUSIVE EASEMENT AREAS: E-RES(1) RESIDENTIAL PARCEL EXCLUSIVE EASEMENT FOR RESIDENTIAL TRASH CHUTE E-RES(3) RESIDENTIAL PARCEL EXCLUSIVE EASEMENT FOR RESIDENTIAL ELEVATORS E-RES(4) RESIDENTIAL PARCEL EXCLUSIVE EASEMENT FOR RESIDENTIAL WATER RISERS Level 7TH FLOOR TO 16TH FLOORS Sheet 20 EXCLUSIVE EASEMENT AREAS: E-RES(1) RESIDENTIAL PARCEL EXCLUSIVE EASEMENT FOR RESIDENTIAL TRASH CHUTE E-RES(3) RESIDENTIAL PARCEL EXCLUSIVE EASEMENT FOR RESIDENTIAL ELEVATORS E-RES(4) RESIDENTIAL PARCEL EXCLUSIVE EASEMENT FOR RESIDENTIAL WATER RISERS LEVEL ROOF AREAS Sheet 22 E-RES(5) RESIDENTIAL PARCEL EXCLUSIVE EASEMENT FOR RESIDENTIAL HOTEL ELEVATORS

OVERRUN The Exclusive Easement Areas within the Residential Project are described on Exhibit “C-1" which is attached to this Exhibit “C”.

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EXHIBIT “C-1” The Exclusive Easement Areas within the Residential Project are shown and described on this Exhibit “C-1": There shall be an Exclusive Easement Area over and across the Residential Common Area of the Residential Condominium Project as shown and described on Exhibit B-1, pages B-1.1 through B-1.__ for the below described Exclusive Easement Areas as to which the Residential Common Area shall be subject as the servient tenement: E-7(7) as an Exclusive Easement Area for use of hotel elevator shafts and machine rooms for the exclusive use of the Owner of the Hotel Unit as the benefited property

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EXHIBIT “D” Joint Use Easement Areas. The Joint Use Easement Areas located within the Commercial Common Areas of the Commercial Condominium Project are shown on the Commercial Map as those areas designated by the letters “JT” followed by the number of the Commercial Unit or Commercial Units to which the Joint Use Easement Area is appurtenant or by the letters RES if the Joint Use Easement Area is appurtenant to the Residential Condominium Project. This Exhibit “D” to Center Declaration provides further description with respect to such Joint Use Easement Areas. The following items are Joint Use Easement Areas which shall be maintained by the Center Association and the costs for which shall be allocated among or between the parties who use and have benefit of such Joint Use Easement as Cost Center Allocations as hereinafter set forth: JOINT USE EASEMENT AREAS:

JT 1-4(1): JOINT USE EASEMENT FOR ELEVATOR FOR PARKING UNIT [UNIT 1] AND RETAIL UNIT [UNIT 4]

JT 7-5(1): JOINT USE EASEMENT ELEVATOR FOR HOTEL UNIT [UNIT 7] AND SPORTS CLUB UNIT [UNIT 5]

JT 7-RES(1) JOINT USE EASEMENT FOR HOTEL UNIT [UNIT 7] AND RESIDENTIAL PARCEL JOINT LOBBY CIRCULATION

JT 7-RES(2) JOINT USE EASEMENT FOR HOTEL UNIT [UNIT 7] AND RESIDENTIAL PARCEL BACK OF HOUSE JOINT USE

THE LOCATION OF THESE JOINT USE EASEMENTS ARE SHOWN ON THE FOLLOWING SHEETS OF THE COMMERCIAL MAP AS SET FORTH BELOW: LEVEL B-5 SHEET 6 COMMERCIAL MAP UNITS: PARCEL 1: PARKING UNIT; PARCEL 2: COMMERCIAL COMMON AREA JOINT USE EASEMENT AREAS:

JT 1-4(1): JOINT USE EASEMENT FOR ELEVATOR FOR PARKING UNIT [UNIT 1] AND RETAIL UNIT [UNIT 4]

LEVEL B-4 SHEET 7 COMMERCIAL MAP UNITS: PARCEL 1: PARKING UNIT; PARCEL 2: COMMERCIAL COMMON AREA JOINT USE EASEMENT AREAS:

JT 1-4(1): JOINT USE EASEMENT FOR ELEVATOR FOR PARKING UNIT [UNIT 1] AND RETAIL UNIT [UNIT 4]

LEVEL B-3 SHEET 8 COMMERCIAL MAP UNITS: PARCEL 1: PARKING UNIT; PARCEL 2: COMMERCIAL COMMON AREA JOINT USE EASEMENT AREAS:

JT 1-4(1): JOINT USE EASEMENT ELEVATOR FOR PARKING UNIT [UNIT 1] AND RETAIL UNIT [UNIT 4]

JT 7-5(1): JOINT USE EASEMENT ELEVATOR FOR HOTEL UNIT [UNIT 7] AND SPORTS CLUB UNIT [UNIT 5]

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LEVEL B-2 SHEET 9 COMMERCIAL MAP UNITS: PARCEL 1: PARKING UNIT; PARCEL 2: COMMERCIAL COMMON AREA; PARCEL 3: HOTEL UNIT JOINT USE EASEMENT AREAS:

JT 1-4(1): JOINT USE EASEMENT FOR ELEVATOR FOR PARKING UNIT [UNIT 1] AND RETAIL UNIT [UNIT 4]

JT 7-5(1): JOINT USE EASEMENT FOR ELEVATOR FOR HOTEL UNIT [UNIT 7] AND SPORTS CLUB UNIT [UNIT 5]

LEVEL B-1 SHEET 10 COMMERCIAL MAP UNITS: PARCEL 1: PARKING UNIT; PARCEL 2: COMMERCIAL COMMON AREA; PARCEL 4: RETAIL UNIT JOINT USE EASEMENT AREAS:

JT 1-4(1): JOINT USE EASEMENT FOR ELEVATOR FOR PARKING UNIT [UNIT 1] AND RETAIL UNIT [UNIT 4]

JT 7-5(1): JOINT USE EASEMENT FOR ELEVATOR FOR HOTEL UNIT [UNIT 7] AND SPORTS CLUB UNIT [UNIT 5]

LEVEL GROUND FLOOR SHEET 11/12 COMMERCIAL MAP UNITS: PARCEL 1: PARKING UNIT; PARCEL 2: COMMERCIAL COMMON AREA; PARCEL 4: RETAIL UNIT; PARCEL 5: SPORTS CLUB UNIT; PARCEL 6: MUSEUM UNIT JOINT USE EASEMENT AREAS:

JT 1-4(1): JOINT USE EASEMENT FOR ELEVATOR FOR PARKING UNIT [UNIT 1] AND RETAIL UNIT [UNIT 4]

JT 7-5(1): JOINT USE EASEMENT FOR ELEVATOR FOR HOTEL UNIT [UNIT 7] AND SPORTS CLUB UNIT [UNIT 5]

JT 7-RES(1) JOINT USE EASEMENT FOR HOTEL UNIT [UNIT 7] AND RESIDENTIAL PARCEL JOINT LOBBY CIRCULATION

JT 7-RES(2) JOINT USE EASEMENT FOR HOTEL UNIT [UNIT 7] AND RESIDENTIAL PARCEL BACK OF HOUSE JOINT USE

LEVEL 2D FLOOR SHEET 13/15 COMMERCIAL MAP UNITS: PARCEL 2: COMMERCIAL COMMON AREA; PARCEL 4: RETAIL UNIT; PARCEL 5 :SPORTS CLUB UNIT; PARCEL 6: MUSEUM UNIT JOINT USE EASEMENT AREAS:

JT 1-4(1): JOINT USE EASEMENT FOR ELEVATOR FOR PARKING UNIT [UNIT 1] AND RETAIL UNIT [UNIT 4]

JT 7-5(1): JOINT USE EASEMENT FOR ELEVATOR FOR HOTEL UNIT [UNIT 7] AND SPORTS CLUB UNIT [UNIT 5]

LEVEL 3D FLOOR SHEET 14/15 COMMERCIAL MAP UNITS: PARCEL 2: COMMERCIAL COMMON AREA; PARCEL 5: SPORTS CLUB UNIT; PARCEL 6: MUSEUM UNIT JOINT USE EASEMENT AREAS:

JT 7-5(1): JOINT USE EASEMENT FOR ELEVATOR FOR HOTEL UNIT [UNIT 7] AND SPORTS CLUB UNIT [UNIT 5]

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LEVEL 4TH FLOOR SHEET 16 COMMERCIAL MAP UNITS: PARCEL 2: COMMERCIAL COMMON AREA; PARCEL 5: SPORTS CLUB UNIT JOINT USE EASEMENT AREAS:

JT 7-5(1): JOINT USE EASEMENT FOR ELEVATOR FOR HOTEL UNIT [UNIT 7] AND SPORTS CLUB UNIT [UNIT 5]

LEVEL 5TH FLOOR SHEET 17 COMMERCIAL MAP JOINT USE EASEMENT AREAS: [NONE] LEVEL 5M SHEET 19 COMMERCIAL MAP JOINT USE EASEMENT AREAS: [NONE] LEVEL 6TH FLOOR SHEET 20 COMMERCIAL MAP AND ABOVE JOINT USE EASEMENT AREAS: [NONE]

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Exhibit “D-1” [The areas and items described on Exhibit “D” are Joint Use Easement Areas, the projected costs for which shall be allocated by the Center Board among or between the parties who use and have benefit of such Joint Use Easement Area as Cost Center Allocations in the percentage allocations set forth and described in Exhibit “D-1”.] The allocations set forth as Cost Center Allocations for a particular Joint Use Easement Area set forth on Exhibit “D-1” shall be subject to review and adjustment by the Center Board, periodically as the Center Board determines necessary and appropriate, to reflect its determination of the relative use and benefit received by each Component or Condominium Unit served by or having the use and benefit of the Joint Use Easement Area. JOINT USE EASEMENT AREAS:

JT 1-4(1): JOINT USE EASEMENT FOR ELEVATOR FOR PARKING UNIT [UNIT 1] AND RETAIL UNIT [UNIT 4]: PARKING UNIT [UNIT 1] 50% AND RETAIL UNIT [UNIT 4] 50%

JT 7-5(1): JOINT USE EASEMENT ELEVATOR FOR HOTEL UNIT [UNIT 7] AND SPORTS CLUB UNIT

[UNIT 5]: HOTEL UNIT [UNIT 7] 50% AND SPORTS CLUB UNIT [UNIT 5] 50%

JT 7-RES(1) JOINT USE EASEMENT FOR HOTEL UNIT [UNIT 7] AND RESIDENTIAL PARCEL JOINT LOBBY CIRCULATION: HOTEL UNIT [UNIT 7] 50% AND RESIDENTIAL PARCEL 50%

JT 7-RES(2) JOINT USE EASEMENT FOR HOTEL UNIT [UNIT 7] AND RESIDENTIAL PARCEL BACK OF

HOUSE JOINT USE: HOTEL UNIT [UNIT 7] 50% AND RESIDENTIAL PARCEL 50%

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EXHIBIT “E” COST CENTER SERVICES. THE FOLLOWING ITEMS ARE COST CENTER SERVICES WHICH ARE SERVICES AND ACTIVITIES WHICH SHALL BE PROVIDED BY THE CENTER ASSOCIATION AND THE COSTS FOR WHICH SHALL BE ALLOCATED AMONG OR BETWEEN THE PARTIES WHO USE AND HAVE BENEFIT OF SUCH COST CENTER SERVICES ON THE BASIS OF THE BENEFIT OF SUCH COST CENTER SERVICES AS SET FORTH IN SECTION 4.5.2 OF THIS CENTER DECLARATION: INSURANCE COST CENTER ALLOCATION: PARCEL 1 - COMMERCIAL COMPONENT - 61.95%

HOTEL UNIT 34.01% PARKING UNIT 9.68% RETAIL UNIT 5.91% SPORTS CLUB UNIT 12.36%

PARCEL 2 - RESIDENTIAL COMPONENT - 38.05% LOADING DOCK COST CENTER ALLOCATION: PARCEL 1 - COMMERCIAL COMPONENT - 57.87%

HOTEL UNIT 37.64% PARKING UNIT 0.00% RETAIL UNIT 6.55% SPORTS CLUB UNIT 13.69%

PARCEL 2 - RESIDENTIAL COMPONENT - 42.13% HVAC COST CENTER ALLOCATION: PARCEL 1 - COMMERCIAL COMPONENT - 66.22%

HOTEL UNIT 50.00% PARKING UNIT 0.00% RETAIL UNIT 5.25% SPORTS CLUB UNIT 10.97%

PARCEL 2 - RESIDENTIAL COMPONENT - 33.78% UTILITIES COST CENTER ALLOCATION: PARCEL 1 - COMMERCIAL COMPONENT - 57.87%

HOTEL UNIT 37.64% PARKING UNIT 0.00% RETAIL UNIT 6.55% SPORTS CLUB UNIT 13.69%

PARCEL 2 - RESIDENTIAL COMPONENT - 42.13%

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REFUSE COLLECTION COST CENTER ALLOCATION: PARCEL 1 - COMMERCIAL COMPONENT - 57.32%

HOTEL UNIT 51.59% PARKING UNIT 0.00% RETAIL UNIT 1.85% SPORTS CLUB UNIT 3.88%

PARCEL 2 - RESIDENTIAL COMPONENT - 42.68% CENTER ELEVATORS COST CENTER ALLOCATION: PARCEL 1 - COMMERCIAL COMPONENT - 100.00%

HOTEL UNIT 65.04% PARKING UNIT 0.00% RETAIL UNIT 11.31% SPORTS CLUB UNIT 23.65%

PARCEL 2 - RESIDENTIAL COMPONENT - 00.00% LANDSCAPING COST CENTER ALLOCATION: PARCEL 1 - COMMERCIAL COMPONENT - 80.00%

HOTEL UNIT 80.00% PARKING UNIT 0.00% RETAIL UNIT 0.00% SPORTS CLUB UNIT 0.00%

PARCEL 2 - RESIDENTIAL COMPONENT - 20.00% DOORMEN COST CENTER ALLOCATION: PARCEL 1 - COMMERCIAL COMPONENT - 50.00%

HOTEL UNIT 50.00% PARKING UNIT 0.00% RETAIL UNIT 0.00% SPORTS CLUB UNIT 0.00%

PARCEL 2 - RESIDENTIAL COMPONENT - 50.00% CUSTODIAL COST CENTER ALLOCATION: PARCEL 1 - COMMERCIAL COMPONENT - 20.00%

HOTEL UNIT 20.00% PARKING UNIT 0.00% RETAIL UNIT 0.00% SPORTS CLUB UNIT 0.00%

PARCEL 2 - RESIDENTIAL COMPONENT - 80.00%

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EXHIBIT “F” Residential Lobby Access Easement. An exclusive easement and right of access appurtenant to the Residential Condominium Project for use and benefit of the Residential Condominium Association and the Condominium Owners, their tenants, guest and invitees is hereby established and shall be provided over and across that portion of the lobby area of the Commercial Common Area on the ground level of the Center as designated and shown as the Exclusive Easement Area for the use and benefit of the Residential Condominium Project as shown on the Commercial Map as “E-RES(2)”, for use as the entry lobby for the Residential Condominium Project as the Residential Lobby and for access to elevators serving the Residential Condominium Project. A joint exclusive easement and right of access appurtenant to the Residential Condominium Project for use and benefit of the Residential Condominium Association and the Condominium Owners, their tenants, guest and invitees, jointly with the Owner of the Hotel Unit is hereby established and shall be provided over and across that portion of the lobby area of the Commercial Common Area on the ground level of the Center as designated and shown as the Joint Use Easement Area as shown on the Commercial Map as “JT 7-RES(1)”, for pedestrian access to the Residential Lobby and elevators serving the Residential Condominium Project. Hotel Unit Access Easement. An exclusive easement and right of access appurtenant to the Hotel Unit for use and benefit of the Hotel Unit and the Owner of the Hotel Unit, the hotel operator of the hotel within the Hotel Unit, and the employees, agents, guests and invitees thereof, is hereby established, and shall be provided, over and across that portion of the Commercial Common Area located on the ground level of the Center designated and shown on the Commercial Map as “E-7[4]” for use as the entry lobby for the Hotel Unit as the Hotel Unit Entry Lobby and for access to elevators serving the Hotel Unit. A joint exclusive easement and right of access appurtenant to the Hotel Unit for use and benefit of the Owner of the Hotel Unit and the guest and invitees of the Hotel Unit Owner, jointly with the Residential Condominium Project is hereby established and shall be provided over and across that portion of the lobby area of the Commercial Common Area on the ground level of the Center as designated and shown as the Joint Use Easement Area as shown on the Commercial Map as “JT 7-RES(1)”, for pedestrian access to the Hotel Unit Entry Lobby and elevators serving the Hotel Unit.