Common use of Excess Land Clause in Contracts

Excess Land. Prior to Substantial Completion, Landlord shall convey the portion of the Premises described on Exhibit F (the “Excess Land”) to Tenant in accordance with this section; provided, if there is a material adverse change affecting the Excess Land (including, but not limited to, any material adverse change in the physical condition of the Excess Land not provided for in the Final Plans and Specifications (as subsequently modified by Change Order), title to the Excess Land, or the environmental condition of the Excess Land) prior to such conveyance, Tenant may elect not to have the Excess Land conveyed to it. Landlord shall give Tenant at least sixty (60) days advance written notice of the date upon which Landlord intends to convey the Excess Land to Tenant pursuant to this section (the “Excess Land Conveyance Date”). Tenant shall have the right to: (i) inspect the Excess Land, from time to time; (ii) obtain an updated title insurance commitment, survey, and Phase I and Phase II environmental assessments of the Excess Land; and (iii) review any and all information related to the Excess Land in Landlord’s possession or control. ▇▇▇▇▇▇▇▇ agrees to cooperate and assist with ▇▇▇▇▇▇’s efforts to obtain a Phase I and Phase II environmental assessment of the Excess Land, and Landlord shall furnish information reasonably required in connection therewith to the extent in its possession or control. Tenant acknowledges that Landlord intends to mine fill from the Excess Land as required by the Final Plans and Specifications and that mining such fill will change the physical characteristics of the Excess Land from the condition in which it exists as of the Effective Date to the condition provided for in the Final Plans and Specifications and this section. Such changes do not constitute a material adverse change for purposes of this Section 2.03 so long as the same are consistent with the Final Plans and Specifications and this section. Except for such changes, Landlord will not make any Alterations to the Excess Land, and Landlord shall cause the areas disturbed as a result of the mining of fill material in accordance with the Final Plans and Specifications to be (i) placed in a condition that complies with Applicable Laws, (ii) sloped in a manner that reasonably protects against erosion and does not result in any unsafe grades or precipices, and (iii) properly seeded with grass overlaid by straw. In addition, Landlord shall not place any debris, spoils or other material therein, except clean soil properly compacted in a manner approved by Tenant, which approval shall not be unreasonably withheld. Landlord shall promptly notify Tenant, in writing, if ▇▇▇▇▇▇▇▇ learns of any event, matter or circumstance that has or could have a material adverse effect on the Excess Land, including, without limitation, the presence of any Hazardous Substances on, under or about the Excess Land or released therefrom. Subject to the other terms hereof, Landlord shall convey the Excess Land to Tenant on the Excess Land Conveyance Date, pursuant to this section, by properly executing and delivering to Tenant a Special Warranty Deed conveying good and marketable fee simple title to the Excess Land to Tenant, subject only to the Permitted Exceptions that encumber the Excess Land (but not others) and free and clear of all Monetary Liens. The Excess Land will not be subject to the Prime Lease. At the time Landlord delivers such deed to Tenant, Landlord shall also (i) execute and deliver to Tenant an owner’s affidavit, in form and content, sufficient to have the mechanics’ and materialmen’s lien exception, rights of parties in possession exception and any other standard exceptions removed from the Owner’s Title Policy and the gap insured; (ii) furnish Tenant with evidence, reasonably satisfactory to Tenant and its title insurance company, that Landlord is duly authorized and empowered to convey the Excess Land to Tenant and perform its other obligations hereunder, including, but not limited to, formation documents, resolutions and certificates of good standing; (iii) execute and deliver to Tenant all other documents, instruments, certificates and affidavits necessary to consummate the transaction contemplated by this section, including, without limitation, an IRS §1445 certificate; and (iv) cause all liens (including, without limitation, all Fee Mortgages) affecting the Excess Land to be released and discharged, except for any liens arising or resulting directly from ▇▇▇▇▇▇’s affirmative acts. Tenant shall be responsible for up to Twenty-Five Thousand and No/100 Dollars ($25,000.00) of the out-of-pocket closing costs incurred by Landlord in conveying the Excess Land to Tenant, including, without limitation, the cost of subdividing the Excess Land (if required) and all transaction costs in consummating such closing; provided, (i) Landlord shall be responsible for the cost of releasing any Fee Mortgages and other Monetary Liens, such costs shall be paid by Landlord and shall not be included in Project Costs, and (ii) Landlord shall provide Tenant with reliable evidence of the amount of such costs and the payment thereof, including, but not limited to, invoices and paid receipts.

Excess Land. Prior to Substantial Completion, (a) Landlord shall convey the portion of the Premises described on Exhibit F (the “Excess Land”) to Tenant in accordance with this section; provided, if there is a material adverse change affecting acknowledges that the Excess Land (including, but is not limited to, any material adverse change in the physical condition necessary for Tenant's current and contemplated use of the Excess Land not provided for in the Final Plans and Specifications (as subsequently modified by Change Order), title to the Excess Land, or the environmental condition of the Excess Land) prior to such conveyance, Tenant may elect not to have the Excess Land conveyed to itLeased Premises. Landlord shall give Tenant at least sixty shall, upon not less than thirty (6030) days advance prior written notice of the date upon which to Landlord intends to and Lender, convey the Excess Land to or as directed by Tenant pursuant to for no consideration (other than having entered into this section (Lease with Tenant); provided, that no Event of Default under this Lease or under the “Excess Land Conveyance Date”). Tenant shall have documents evidencing and securing the right toLoan exists and the following conditions are satisfied: (i) inspect the Leased Premises shall have been subdivided in compliance with all applicable subdivision laws, Legal Requirements and Easement Agreements so that the Excess LandLand and the remainder of the Leased Premises (the "Retained Premises") are separate tracts, from time to time; (ii) obtain an updated title insurance commitmentafter such sale both the Excess Land and the Retained Premises shall comply with all applicable Laws, surveyLegal Requirements and Easement Agreements, and Phase I and Phase II environmental assessments (iii) the release of the Excess Land; and Land does not materially impact the functional use, legal use or viability of the Retained Premises, (iiiiv) review any and Tenant shall have complied with all information related requirements of Lender set forth in the Mortgage with respect to the Excess Land in Landlord’s possession or control. ▇▇▇▇▇▇▇▇ agrees to cooperate and assist with ▇▇▇▇▇▇’s efforts to obtain a Phase I and Phase II environmental assessment release of the Excess Land, and Landlord shall furnish information reasonably required (v) all Costs of Landlord, Lender and Tenant in connection therewith to with the extent in its possession or control. Tenant acknowledges that Landlord intends to mine fill from the Excess Land as required by the Final Plans and Specifications and that mining such fill will change the physical characteristics conveyance of the Excess Land from the condition and in which it exists as of the Effective Date to the condition provided for in the Final Plans and Specifications and this section. Such changes do not constitute a material adverse change for purposes of this Section 2.03 so long as the same are consistent complying with the Final Plans and Specifications and this section. Except for such changesabove conditions, Landlord will not make including reasonable attorneys' fees, (b) In the event at any Alterations time during the term Tenant determines to the Excess Land, and Landlord shall construct or cause the areas disturbed as a result of the mining of fill material in accordance with the Final Plans and Specifications to be (i) placed in a condition that complies with Applicable Laws, (ii) sloped in a manner that reasonably protects against erosion and does not result in any unsafe grades or precipices, and (iii) properly seeded with grass overlaid by straw. In addition, Landlord shall not place any debris, spoils or other material therein, except clean soil properly compacted in a manner approved by Tenant, which approval shall not be unreasonably withheld. Landlord shall promptly notify Tenant, in writing, if ▇▇▇▇▇▇▇▇ learns of any event, matter or circumstance that has or could have a material adverse effect constructed improvements on the Excess Land, includingTenant shall so notify Landlord, without limitation, the presence of any Hazardous Substances on, under or about and Landlord and Tenant shall negotiate in good faith for Landlord to purchase the Excess Land or released therefrom. Subject to from Tenant, construct such improvements and lease the other terms hereof, Landlord shall convey the Excess Land to Tenant on the Excess Land Conveyance Date, pursuant to this section, by properly executing and delivering to Tenant a Special Warranty Deed conveying good and marketable fee simple title to the Excess Land same to Tenant, subject only to the Permitted Exceptions that encumber the Excess Land (but not others) and free and clear of all Monetary Liens. The Excess Land will not be subject to the Prime Lease. At the time Landlord delivers such deed to Tenant, Landlord shall also (i) execute and deliver to Tenant an owner’s affidavit, in form and content, sufficient to have the mechanics’ and materialmen’s lien exception, rights of parties in possession exception and any other standard exceptions removed from the Owner’s Title Policy and the gap insured; (ii) furnish Tenant with evidence, reasonably satisfactory to Tenant and its title insurance company, that Landlord is duly authorized and empowered to convey the Excess Land to Tenant and perform its other obligations hereunder, including, but not limited to, formation documents, resolutions and certificates of good standing; (iii) execute and deliver to Tenant all other documents, instruments, certificates and affidavits necessary to consummate the transaction contemplated by this section, including, without limitation, an IRS §1445 certificate; and (iv) cause all liens (including, without limitation, all Fee Mortgages) affecting the Excess Land to be released and discharged, except for any liens arising or resulting directly from ▇▇▇▇▇▇’s affirmative acts. Tenant shall be responsible for up to Twenty-Five Thousand and No/100 Dollars ($25,000.00) of the out-of-pocket closing costs incurred by Landlord in conveying the Excess Land to Tenant, including, without limitation, the cost of subdividing the Excess Land (if required) and all transaction costs in consummating such closing; provided, (i) Landlord shall be responsible for the cost of releasing any Fee Mortgages and other Monetary Liens, such costs shall be paid by Landlord and shall not be included in Project Costs, and (ii) Landlord shall provide Tenant with reliable evidence of the amount of such costs and the payment thereof, including, but not limited to, invoices and paid receipts.

Excess Land. Prior to Substantial Completion(a) Landlord and Tenant acknowledge and agree that Landlord, or an affiliate of Landlord shall convey (the portion "EXCESS LAND OWNER") is the owner of the Premises described on Exhibit F (the “Excess Land”) to . Landlord has advised Tenant that Excess Land Owner may, in accordance with this sectionits sole and absolute discretion, develop any or all of such Excess Land in one or more phases for non-membership products; provided, if there is a material adverse change affecting the however, Excess Land Owner's development of any such Excess Land (including, but A) shall not limited to, any material diminish Tenant's rights under this Lease in a materially adverse change in the physical condition manner and (B) shall not be for use as a membership campground similar to Tenant's operations. Tenant hereby acknowledges and agrees that development of the Excess Land as a manufactured home community or a recreational vehicle resort shall not provided for in violate the Final Plans terms of clause (B) of the immediately preceding sentence. (b) Prior to Landlord's and Specifications Tenant's execution of this Lease, MHC Thousand Trails Trust, a Maryland real estate investment trust, now known as MHC 1000T Trust, a Maryland real estate investment trust, Thousand Trails Acquisition, Inc. (as subsequently modified by Change Order"TTA"), title KTTI Holding Company, Inc. ("KTTI") and Tenant (collectively, Landlord, TTA, KTTI and Tenant, the "MERGER PARTIES") entered into that certain Agreement and Plan of Merger ("MERGER AGREEMENT") pursuant to which TTA merged into KTTI ("MERGER TRANSACTION"). The Merger Parties entered into the Merger Transaction with the understanding that an integral part of the Merger Transaction was that Landlord (or an affiliate of Landlord) would acquire and develop the Excess Land, . Tenant (whose parent benefited from the Merger Transaction) agrees and acknowledges that it has a good faith obligation to cooperate with Landlord (or the environmental condition Landlord's affiliate) in Landlord's (or Landlord's affiliate's) development of the Excess Land) prior to such conveyance, Land including participation and cooperation in any zoning or other land use petitions. Tenant hereby agrees and acknowledges that Landlord or Landlord's affiliate may elect not to have transfer or sell the Excess Land conveyed or any portion thereof at any time to itanother affiliate of Landlord without Tenant's consent. Landlord shall give Tenant at least sixty (60) days advance written notice All other transfers of the date upon which Landlord intends to convey the Excess Land to Tenant pursuant to this section (shall require the “Excess Land Conveyance Date”). prior written consent of Tenant; Tenant shall have consider any such proposed transfer in good faith. For purposes of this paragraph 33(b), a Corporate Control Event (substituting Landlord or Landlord's affiliate, as the right to: (icase may be, for Tenant) inspect the Excess Land, from time to time; (ii) obtain an updated title insurance commitment, survey, and Phase I and Phase II environmental assessments shall be deemed a transfer of the Excess Land; provided, however, in no event shall the merger of or sale of ownership interests in Manufactured Home Communities, Inc., a Maryland corporation, MHC Trust, a Maryland real estate investment trust or MHC Operating Limited Partnership, an Illinois limited partnership, or a sale of substantially all of the assets of any such entity, at any time be deemed to be a Corporate Control Event. (c) Within thirty (30) days following the Commencement Date, Landlord will record, with the appropriate land records offices, notice of the use and transfer restrictions set forth in this paragraph 33, which notice shall expire by its terms on the date which is the earlier of (i) the fifth (5th) anniversary of the Lease Expiration Date and (iiiii) review any such date on which this Lease or Tenant's right to possession of the Premises is terminated following a Put/Call Default or an event of default under paragraphs 15(f) or 15(g) of this Lease and all information related which recorded document shall otherwise be in form and substance reasonably satisfactory to Tenant. (d) As of the Commencement Date, Landlord and Tenant have agreed that each of the Excess Land Properties contains Excess Land. However, Landlord and Tenant have not agreed upon which portions of the Excess Land Properties constitute Excess Land. Landlord and Tenant agree in Landlord’s possession principle that Excess Land is land which is subject to being separately developed in accordance with paragraphs 33(a) and (b) hereof, and Exhibit Y, attached to this Lease, contains an approximate description of the acreage of the Excess Land contained in the Excess Land Properties set forth on Exhibit Y, other than those set forth in clauses (i) through (vii), inclusive, of this paragraph 33(d). On or controlbefore the Excess Land Agreement Date, Landlord and Tenant shall use commercially reasonable efforts to agree upon and designate the size and location of the Excess Land located at each Excess Land Property. ▇▇For the Sites listed below, such agreement shall be based on the following general provisions: (i) With respect to the Site commonly known as ▇▇▇▇▇▇ agrees to cooperate and assist with ▇▇▇▇▇▇’s efforts to obtain a Phase I and Phase II environmental assessment Lake, certain portions of the Site shall be considered Excess Land, and Landlord shall furnish information reasonably required in connection therewith to the extent in . Landlord's (or its possession or control. Tenant acknowledges that Landlord intends to mine fill from the Excess Land as required by the Final Plans and Specifications and that mining such fill will change the physical characteristics Affiliate's) development of the Excess Land from at the condition in which it exists as of the Effective Date to the condition provided for in the Final Plans and Specifications and this section. Such changes do not constitute a material adverse change for purposes of this Section 2.03 so long as the same are consistent with the Final Plans and Specifications and this section. Except for such changes, Landlord will not make any Alterations to the Excess Land, and Landlord shall cause the areas disturbed as a result of the mining of fill material in accordance with the Final Plans and Specifications to be (i) placed in a condition that complies with Applicable Laws, (ii) sloped in a manner that reasonably protects against erosion and does not result in any unsafe grades or precipices, and (iii) properly seeded with grass overlaid by straw. In addition, Landlord shall not place any debris, spoils or other material therein, except clean soil properly compacted in a manner approved by Tenant, which approval shall not be unreasonably withheld. Landlord shall promptly notify Tenant, in writing, if ▇▇▇▇▇▇▇▇ learns Lake Site shall be surrounded by a buffer to the extent it abuts Tenant's existing membership campground. (ii) With respect to the Site commonly known as Rancho Oso, multiple portions of the Site, currently used as pasture/ranch land, shall be considered Excess Land. Landlord shall update Tenant on any progress made with respect to the applicable regulatory processes in California or evaluations performed relating to the development of the Excess Land at the Rancho Oso Site. (iii) With respect to the Site commonly known as Yosemite, in the event that Tenant does not, within a commercially reasonable period of time (taking into account market conditions at the Yosemite Site and in the surrounding campground market area; and in any event, matter such time period shall not exceed ten (10) years following the Commencement Date) (the "TT YOSEMITE DEVELOPMENT DEADLINE"), commence development of the vacant portion of the Yosemite Site for the use of "Getaway units" and expand the existing membership campground into said area, that portion of the Yosemite Site shall be, in accordance with paragraph 33(e) of this Lease, considered Excess Land. (iv) With respect to the Site commonly known as Lake Conroe, (a) the area to the north of the lake, (b) the area in which the sales center is currently located and (c) the land between the sales center and the lake, shall be considered Excess Land. Landlord and Tenant shall agree upon a reasonable buffer area to surround the sales center or circumstance that has or could shall relocate the sales center in connection with Landlord's development of the Excess Land at this Site. In the event Landlord undertakes development of the Excess Land located at the Lake Conroe Site, Landlord shall, at its sole cost and expense, improve the existing water and sewer facilities serving the Lake Conroe Site. In such event, following Landlord's development of the Excess Land at the Lake Conroe Site, Tenant's Members shall have reasonable access to the lake pursuant to the terms of paragraph 2(e) hereof. (v) With respect to the Site commonly known as Bend, a material adverse effect portion of the Site located on the western portion of the property shall be considered Excess Land. Landlord and Tenant shall consider the feasibility of creating a separate entrance for access to such Excess Land. (vi) With respect to the Site commonly known as LaConner, a portion of the LaConner Site, shall be considered Excess Land. In the event Landlord undertakes development of the Excess Land located at the LaConner Site, Landlord shall, at its sole cost and expense, improve the existing water and sewer facilities relating to the LaConner Site. (vii) With respect to the Site commonly known as Idyllwild, a portion of the Site located at the westerly side of the property shall be considered Excess Land. Promptly following Landlord's and Tenant's agreement regarding the size and location of the Excess Land, including, without limitation, the presence of any Hazardous Substances on, under or about the Excess Land or released therefrom. Subject to the other terms hereof, Landlord and Tenant shall convey the Excess Land to Tenant on the Excess Land Conveyance Date, pursuant enter into an amendment to this sectionLease to reflect such agreements, by properly executing and delivering to Tenant a Special Warranty Deed conveying good and marketable fee simple title to the Excess Land to Tenant, subject only to the Permitted Exceptions that encumber the Excess Land including (but not others1) and free and clear causing legal descriptions of all Monetary Liens. The Excess Land will not be subject to the Prime Lease. At the time Landlord delivers such deed to Tenant, Landlord shall also (i) execute and deliver to Tenant an owner’s affidavit, in form and content, sufficient to have the mechanics’ and materialmen’s lien exception, rights of parties in possession exception and any other standard exceptions removed from the Owner’s Title Policy and the gap insured; (ii) furnish Tenant with evidence, reasonably satisfactory to Tenant and its title insurance company, that Landlord is duly authorized and empowered to convey the Excess Land to Tenant and perform its other obligations hereunder, including, but not limited to, formation documents, resolutions and certificates of good standing; (iii) execute and deliver to Tenant all other documents, instruments, certificates and affidavits necessary to consummate the transaction contemplated by this section, including, without limitation, an IRS §1445 certificate; and (iv) cause all liens (including, without limitation, all Fee Mortgages) affecting the Excess Land to be released and dischargedprepared, except for any liens arising or resulting directly from ▇▇▇▇▇▇’s affirmative acts. Tenant shall be responsible for up to Twenty-Five Thousand and No/100 Dollars ($25,000.002) attaching revised legal descriptions of the out-of-pocket closing costs incurred by Landlord in conveying Premises, reflecting the exclusion of the Excess Land to Tenant, including, without limitation, the cost and (3) attaching said legal descriptions of subdividing the Excess Land (if required) and all transaction costs in consummating such closing; provided, (i) as Exhibit P to this Lease. Landlord shall be responsible for all costs associated with clauses (1), (2) and (3) of the cost foregoing sentence, with the exception of releasing Tenant's legal fees. In addition, Tenant shall cause any Fee Mortgages and other Monetary Liensall liens relating to any Leasehold Mortgage encumbering the Excess Land to be released. Notwithstanding anything contained herein to the contrary, until such time as this Lease is amended pursuant to this paragraph 33(d), Tenant shall bear all burdens associated with the Excess Land. If Landlord and Tenant are unable to agree on or before the Excess Land Agreement Date, upon a matter which is the subject of this paragraph 33(d), such costs matter shall be paid by subject to the arbitration procedures set forth on Exhibit U attached hereto. (e) If Tenant undertakes development of the Yosemite Site for the use of "Getaway Units" prior to the TT Yosemite Development Deadline, the Yosemite Site shall no longer be an Excess Land Property and no Excess Land shall be considered to be located thereon. To the extent that Tenant has not undertaken development and expansion of the Yosemite Site for the use of "Getaway Units" on or before the TT Yosemite Development Deadline and Landlord has delivered notice to Tenant that the TT Yosemite Development Deadline has occurred (the "TT YOSEMITE DEVELOPMENT DEADLINE NOTICE"), Landlord and Tenant shall, on or before the date which is six months following Landlord's delivery of the TT Yosemite Development Deadline Notice ("YOSEMITE EXCESS LAND AGREEMENT Date"), use commercially reasonable efforts to agree upon and designate the size and location of the Excess Land located at the Yosemite Site in accordance with the general provisions contained in paragraph 33(d) of this Lease. Promptly following Landlord's and Tenant's agreement regarding the size and location of the Excess Land at the Yosemite Site, Landlord and Tenant shall not enter into an amendment to this Lease to reflect such agreements, including (1) causing legal descriptions of such Excess Land to be included in Project Costsprepared, (2) attaching revised legal descriptions of the Premises, reflecting the exclusion of such Excess Land and (ii3) attaching said legal descriptions of such Excess Land as Exhibit P to this Lease. Landlord shall provide be responsible for all costs associated with the clauses (1), (2) and (3) of foregoing sentence, with the exception of Tenant's legal fees. In addition, Tenant shall cause any and all liens relating to any Leasehold Mortgage encumbering the Excess Land at the Yosemite Site to be released. Notwithstanding anything contained herein to the contrary, until such time as this Lease is amended pursuant to this paragraph 33(e), Tenant shall bear all burdens associated with reliable evidence such Excess Land located at the Yosemite Site. If Landlord and Tenant are unable to agree on or before the Yosemite Excess Land Agreement Date, upon a matter which is the subject of this paragraph 33(e), such matter shall be subject to the amount of such costs and the payment thereof, including, but not limited to, invoices and paid receiptsarbitration procedures set forth on Exhibit U attached hereto.

Excess Land. Prior to Substantial Completion, (a) Landlord shall convey the portion of the Premises described on Exhibit F (the “Excess Land”) to Tenant in accordance with this section; provided, if there is a material adverse change affecting acknowledges that the Excess Land (including, but is not limited to, any material adverse change in the physical condition necessary for Tenant's current and contemplated use of the Excess Land not provided for in the Final Plans and Specifications (as subsequently modified by Change Order), title to the Excess Land, or the environmental condition of the Excess Land) prior to such conveyance, Tenant may elect not to have the Excess Land conveyed to itLeased Premises. Landlord shall give Tenant at least sixty shall, upon not less than thirty (6030) days advance prior written notice of the date upon which to Landlord intends to and Lender, convey the Excess Land to or as directed by Tenant pursuant to for no consideration (other than having entered into this section (Lease with Tenant); provided, that no -------- Event of Default under this Lease or under the “Excess Land Conveyance Date”). Tenant shall have documents evidencing and securing the right toLoan exists and the following conditions are satisfied: (i) inspect the Leased Premises shall have been subdivided in compliance with all applicable subdivision laws, Legal Requirements and Easement Agreements so that the Excess LandLand and the remainder of the Leased Premises (the "Retained Premises") are ----------------- separate tracts, from time to time; (ii) obtain an updated title insurance commitmentafter such sale both the Excess Land and the Retained Premises shall comply with all applicable Laws, surveyLegal Requirements and Easement Agreements, and Phase I and Phase II environmental assessments (iii) the release of the Excess Land; and Land does not materially impact the functional use, legal use or viability of the Retained Premises, (iiiiv) review any and Tenant shall have complied with all information related requirements of Lender set forth in the Mortgage with respect to the Excess Land in Landlord’s possession or control. ▇▇▇▇▇▇▇▇ agrees to cooperate and assist with ▇▇▇▇▇▇’s efforts to obtain a Phase I and Phase II environmental assessment release of the Excess Land, and Landlord shall furnish information reasonably required (v) all Costs of Landlord, Lender and Tenant in connection therewith to with the extent in its possession or control. Tenant acknowledges that Landlord intends to mine fill from conveyance of the Excess Land and in complying with the above conditions, including reasonable attorneys' fees, shall be borne solely by Tenant. Landlord, as required by record title holder to the Final Plans Excess Land, shall cooperate with Tenant in obtaining a lawful subdivision of the Leased Premises with separate parcels consisting of the Excess Land and Specifications the Retained Premises, at no cost to Landlord. If Landlord conveys the Excess Land, then, except for Surviving Obligations this Lease shall terminate with respect to the Excess Land, but shall remain in full force and effect with respect to the Retained Premises, provided, however, that mining such fill in no event will change the physical characteristics release of the Excess Land from the condition in which it exists as this Lease amend, reduce or modify any of the Effective Date obligations and liabilities of Tenant hereunder, including the obligations to the condition provided for pay Basic Rent in the Final Plans and Specifications and this sectionamount set forth in Exhibit "D" hereto. Such changes do not constitute a material adverse change for purposes of this Section 2.03 so long as ---------- (b) In the same are consistent with event at any time during the Final Plans and Specifications and this section. Except for such changes, Landlord will not make any Alterations term Tenant determines to the Excess Land, and Landlord shall construct or cause the areas disturbed as a result of the mining of fill material in accordance with the Final Plans and Specifications to be (i) placed in a condition that complies with Applicable Laws, (ii) sloped in a manner that reasonably protects against erosion and does not result in any unsafe grades or precipices, and (iii) properly seeded with grass overlaid by straw. In addition, Landlord shall not place any debris, spoils or other material therein, except clean soil properly compacted in a manner approved by Tenant, which approval shall not be unreasonably withheld. Landlord shall promptly notify Tenant, in writing, if ▇▇▇▇▇▇▇▇ learns of any event, matter or circumstance that has or could have a material adverse effect constructed improvements on the Excess Land, includingTenant shall so notify Landlord, without limitation, the presence of any Hazardous Substances on, under or about and Landlord and Tenant shall negotiate in good faith for Landlord to purchase the Excess Land or released therefrom. Subject to from Tenant, construct such improvements and lease the other terms hereof, Landlord shall convey the Excess Land to Tenant on the Excess Land Conveyance Date, pursuant to this section, by properly executing and delivering to Tenant a Special Warranty Deed conveying good and marketable fee simple title to the Excess Land same to Tenant, subject only to the Permitted Exceptions that encumber the Excess Land (but not others) and free and clear of all Monetary Liens. The Excess Land will not be subject to the Prime Lease. At the time Landlord delivers such deed to Tenant, Landlord shall also (i) execute and deliver to Tenant an owner’s affidavit, in form and content, sufficient to have the mechanics’ and materialmen’s lien exception, rights of parties in possession exception and any other standard exceptions removed from the Owner’s Title Policy and the gap insured; (ii) furnish Tenant with evidence, reasonably satisfactory to Tenant and its title insurance company, that Landlord is duly authorized and empowered to convey the Excess Land to Tenant and perform its other obligations hereunder, including, but not limited to, formation documents, resolutions and certificates of good standing; (iii) execute and deliver to Tenant all other documents, instruments, certificates and affidavits necessary to consummate the transaction contemplated by this section, including, without limitation, an IRS §1445 certificate; and (iv) cause all liens (including, without limitation, all Fee Mortgages) affecting the Excess Land to be released and discharged, except for any liens arising or resulting directly from ▇▇▇▇▇▇’s affirmative acts. Tenant shall be responsible for up to Twenty-Five Thousand and No/100 Dollars ($25,000.00) of the out-of-pocket closing costs incurred by Landlord in conveying the Excess Land to Tenant, including, without limitation, the cost of subdividing the Excess Land (if required) and all transaction costs in consummating such closing; provided, (i) Landlord shall be responsible for the cost of releasing any Fee Mortgages and other Monetary Liens, such costs shall be paid by Landlord and shall not be included in Project Costs, and (ii) Landlord shall provide Tenant with reliable evidence of the amount of such costs and the payment thereof, including, but not limited to, invoices and paid receipts.

Excess Land. Prior DOC acknowledges that the Property includes certain parcels of excess vacant land located adjacent to Substantial Completionthe parcel on which the Hospital and MOB are situated, Landlord shall convey the portion of the Premises as more particularly described on Exhibit F A attached hereto and incorporated herein by this reference (the “Excess Land”) to Tenant in accordance ). In connection with this section; provided, if there is a material adverse change affecting the Excess Land (including, but not limited to, any material adverse change in the physical condition DOC’s purchase of the Excess Land not provided for in the Final Plans Property, DOC shall cause and Specifications (as subsequently modified by Change Order), title to the Excess Land, or the environmental condition of the Excess Land) prior to such conveyance, Tenant may elect not to have the Excess Land conveyed to it. Landlord shall give Tenant at least sixty (60) days advance written notice of the date upon which Landlord intends direct Seller to convey the Excess Land directly to Tenant pursuant to this section FREP El Paso, LLC, a Texas limited liability company (the “Excess Land Conveyance DateFREP”), on the terms and conditions set forth in this Section 4. Tenant FSHA shall have be responsible for all costs, fees and expenses that may be incurred by DOC in connection with the right to: (i) inspect the Excess Land, from time to time; (ii) obtain an updated title insurance commitment, survey, and Phase I and Phase II environmental assessments conveyance of the Excess Land; and (iii) review any and all information related to the Excess Land in Landlord’s possession or control. ▇▇▇▇▇▇▇▇ agrees to cooperate and assist with ▇▇▇▇▇▇’s efforts to obtain a Phase I and Phase II environmental assessment of the Excess Land, and Landlord shall furnish information reasonably required in connection therewith to the extent in its possession or control. Tenant acknowledges that Landlord intends to mine fill from the Excess Land as required by the Final Plans and Specifications and that mining such fill will change the physical characteristics of the Excess Land from the condition in which it exists as of the Effective Date to the condition provided for in the Final Plans and Specifications and this section. Such changes do not constitute a material adverse change for purposes of this Section 2.03 so long as the same are consistent with the Final Plans and Specifications and this section. Except for such changes, Landlord will not make any Alterations to the Excess Land, and Landlord shall cause the areas disturbed as a result of the mining of fill material in accordance with the Final Plans and Specifications to be (i) placed in a condition that complies with Applicable Laws, (ii) sloped in a manner that reasonably protects against erosion and does not result in any unsafe grades or precipices, and (iii) properly seeded with grass overlaid by straw. In addition, Landlord shall not place any debris, spoils or other material therein, except clean soil properly compacted in a manner approved by Tenant, which approval shall not be unreasonably withheld. Landlord shall promptly notify Tenant, in writing, if ▇▇▇▇▇▇▇▇ learns of any event, matter or circumstance that has or could have a material adverse effect on the Excess Land, including, without limitation, the presence of any Hazardous Substances on, under or about the Excess Land or released therefrom. Subject to the other terms hereof, Landlord shall convey the Excess Land to Tenant on the Excess Land Conveyance Date, pursuant to this section, by properly executing and delivering to Tenant a Special Warranty Deed conveying good and marketable fee simple title to the Excess Land to Tenant, subject only to the Permitted Exceptions that encumber the Excess Land (but not others) and free and clear of all Monetary Liens. The Excess Land will not be subject to the Prime Lease. At the time Landlord delivers such deed to Tenant, Landlord shall also (i) execute and deliver to Tenant an owner’s affidavit, in form and content, sufficient to have the mechanics’ and materialmen’s lien exception, rights of parties in possession exception and any other standard exceptions removed from the Owner’s Title Policy and the gap insured; (ii) furnish Tenant with evidence, reasonably satisfactory to Tenant and its title insurance company, that Landlord is duly authorized and empowered to convey the Excess Land to Tenant and perform its other obligations hereunder, including, but not limited to, formation documentstitle insurance premiums, resolutions transfer fees and certificates taxes, and recording fees. Such costs, fees and expenses shall be paid by DOC as part of good standing; the Transaction Costs. (iiia) execute FREP shall accept and deliver take conveyance of the Excess Land on the same terms and conditions as DOC will purchase the other portions of the Property, as set forth in the PSA. Except as may be contained in the PSA, FREP acknowledges and agrees that Seller has not made, will not make and has no duty or obligation to Tenant make, any warranties or representations, written or oral, express or implied, in any way related to the Excess Land. FREP shall rely solely on its own inspections of the Excess Land. FREP agrees that DOC shall in no way be obligated to make, or cause to be made (by DOC or any third party), any changes, alterations, remediation or any repair to the Excess Land and that all other documentssuch obligations and requirements are assumed by FREP. (b) As an inducement to enter into the Assignment, instrumentsthis Agreement, certificates and affidavits necessary to consummate the transaction contemplated by the PSA, in the event that FSHA or any affiliate of FHSA elects to develop the Excess Land, or to sell or lease the Excess Land to another to develop the Excess Land, for any inpatient or outpatient or medical office facility that FSHA seeks to place or authorize to be placed on the Excess Land, at any time and from time to time for a period of three (3) years after the Closing, FSHA or such affiliate shall first offer the opportunity to so develop the Excess Land to DOC or an affiliate of DOC as set forth herein. FSHA shall notify (the “Offer Notice”) DOC of FSHA’s or such affiliate’s determination to develop the Excess Land, or to sell or lease the Excess Land to another to develop the Excess Land, which notice shall specify the basic terms and conditions for such development. Thereafter, DOC (or its affiliate) shall have an exclusive and irrevocable right (the “Right of First Opportunity”) to submit DOC’s proposal (“DOC’s Proposal”) to FSHA to develop the Excess Land. DOC (or its affiliate) shall exercise such Right of First Opportunity by delivering to FSHA DOC’s Proposal within sixty (60) days after DOC’s receipt of the Offer Notice. If FSHA accepts DOC’s Proposal, which acceptance is in the sole and absolute discretion of FSHA, the parties shall consummate the terms of the development within sixty (60) days thereafter. If DOC (or its affiliate) fails to deliver DOC’s Proposal within the sixty (60) day period described above, DOC’s Right of First Opportunity shall expire, and FSHA or such affiliate shall be free to develop the Excess Land or to seek offers from third parties to develop the Excess Land. If FSHA or such affiliate receives any offer, proposal or term sheet from any third party to develop the Excess Land (whether unsolicited or following DOC’s Right of First Opportunity), within three (3) years after the Closing (the “Bona Fide Offer”), FSHA and such affiliate shall notify DOC in writing and shall provide DOC with a true and correct copy of said Bona Fide Offer (“Right of First Refusal”). DOC may, at DOC’s option and within thirty (30) days after receipt of such notice of said Bona Fide Offer and receipt of a copy thereof, offer to develop the Excess Land upon the terms and conditions as are contained in said Bona Fide Offer, in which event, FSHA or such affiliate shall enter into an agreement with DOC (or its affiliate) to develop the Excess Land upon said terms and conditions. In the event that DOC fails to exercise its Right of First Refusal in writing within thirty (30) days after receipt of written notice of said Bona Fide Offer as provided herein, DOC shall be deemed to have waived its Right of First Refusal for such transaction. FSHA covenants for itself and its affiliates that they shall accept no such Bona Fide Offer until it has complied with the terms of this section, includingSection 4(b). Any transaction entered into in the absence of full satisfaction of this Section 4(b) shall be null and void. DOC may enforce this Section 4(b), without limitation, an IRS §1445 certificate; and by injunction, specific performance or other equitable relief. (ivc) cause all liens In addition to the foregoing rights, if, within three (including3) years after the Closing, without limitationFSHA or any affiliate approve the development of skilled nursing, all Fee Mortgages) affecting assisted or independent living facilities on the Excess Land to be released and dischargeda developer, except for any liens arising landlord or resulting directly from ▇▇▇▇▇▇’s affirmative acts. Tenant shall be responsible for up operator introduced to Twenty-Five Thousand and No/100 Dollars FSHA or such affiliate by DOC ($25,000.00or Physicians Realty L.P.), FSHA will pay to DOC (or Physicians Realty L.P.) or allow such developer, landlord or such affiliate to pay to DOC (or Physicians Realty L.P.) a reasonable market fee of one percent (1%) of the out-of-pocket closing costs incurred by Landlord total project cost as consideration for such introduction. FSHA acknowledges DOC (or Physicians Realty L.P.) will be introducing Sentio Investments, Caddis Partners, Ernst Healthcare, Vibra, Lifecare Hospitals, Inc. and Select Medical, Inc., and Medical Property Investors to the opportunity to use the Excess Land, with FSHA’s permission. (d) The provisions of this Section 4 shall survive Closing and shall be binding upon and for the benefit of the parties’ successors and assigns for a period of three (3) years after the Closing. DOC shall have the right to record a memorandum of its Right of First Opportunity and Right of First Refusal against the Excess Land, in conveying a form acceptable to FSHA, and FSHA shall provide DOC with an accurate legal description of the Excess Land for that purpose. (e) DOC and FSHA hereby agree that in the event it becomes necessary in the development of the Excess Land to Tenantuse or have access to the Private Ponding Area, includingPrivate Ponding Area, without limitationVolume 77, the cost Page 21 (“Retention Land”) DOC agrees to enter into an access agreement or easement agreement as is necessary to such development of subdividing the Excess Land (if required) as is related to that certain Retention Pond, on reasonable and all transaction costs in consummating such closing; provided, (i) Landlord shall be responsible for the cost of releasing any Fee Mortgages and other Monetary Liens, such costs shall be paid by Landlord and shall not be included in Project Costs, and (ii) Landlord shall provide Tenant with reliable evidence of the amount of such costs and the payment thereof, including, but not limited to, invoices and paid receiptscustomary terms.

Excess Land. Prior to Substantial Completion, Landlord shall convey the portion of the Premises described on Exhibit F (the “Excess Land”) to Tenant in accordance with this section; provided, if there is a material adverse change affecting the Excess Land (including, but not limited to, any material adverse change in the physical condition of the Excess Land not provided for in the Final Plans and Specifications (as subsequently modified by Change Order), title to the Excess Land, or the environmental condition of the Excess Land) prior to such conveyance, Tenant may elect not to have the Excess Land conveyed to it. Landlord shall give Tenant at least sixty (60) days advance written notice of the date upon which Landlord intends to convey the Excess Land to Tenant pursuant to this section (the “Excess Land Conveyance Date”). Tenant shall have the right to: (i) inspect the Excess Land, from time to time; (ii) obtain an updated title insurance commitment, survey, and Phase I and Phase II environmental assessments of the Excess Land; and (iii) review any and all information related to the Excess Land in Landlord’s possession or control. ▇▇▇▇▇▇▇▇ Landlord agrees to cooperate and assist with ▇▇▇▇▇▇Tenant’s efforts to obtain a Phase I and Phase II environmental assessment of the Excess Land, and Landlord shall furnish information reasonably required in connection therewith to the extent in its possession or control. Tenant acknowledges that Landlord intends to mine fill from the Excess Land as required by the Final Plans and Specifications and that mining such fill will change the physical characteristics of the Excess Land from the condition in which it exists as of the Effective Date to the condition provided for in the Final Plans and Specifications and this section. Such changes do not constitute a material adverse change for purposes of this Section 2.03 so long as the same are consistent with the Final Plans and Specifications and this section. Except for such changes, Landlord will not make any Alterations to the Excess Land, and Landlord shall cause the areas disturbed as a result of the mining of fill material in accordance with the Final Plans and Specifications to be (i) placed in a condition that complies with Applicable Laws, (ii) sloped in a manner that reasonably protects against erosion and does not result in any unsafe grades or precipices, and (iii) properly seeded with grass overlaid by straw. In addition, Landlord shall not place any debris, spoils or other material therein, except clean soil properly compacted in a manner approved by Tenant, which approval shall not be unreasonably withheld. Landlord shall promptly notify Tenant, in writing, if ▇▇▇▇▇▇▇▇ Landlord learns of any event, matter or circumstance that has or could have a material adverse effect on the Excess Land, including, without limitation, the presence of any Hazardous Substances on, under or about the Excess Land or released therefrom. Subject to the other terms hereof, Landlord shall convey the Excess Land to Tenant on the Excess Land Conveyance Date, pursuant to this section, by properly executing and delivering to Tenant a Special Warranty Deed conveying good and marketable fee simple title to the Excess Land to Tenant, subject only to the Permitted Exceptions that encumber the Excess Land (but not others) and free and clear of all Monetary Liens. The Excess Land will not be subject to the Prime Lease. At the time Landlord delivers such deed to Tenant, Landlord shall also (i) execute and deliver to Tenant an owner’s affidavit, in form and content, sufficient to have the mechanics’ and materialmen’s lien exception, rights of parties in possession exception and any other standard exceptions removed from the Owner’s Title Policy and the gap insured; (ii) furnish Tenant with evidence, reasonably satisfactory to Tenant and its title insurance company, that Landlord is duly authorized and empowered to convey the Excess Land to Tenant and perform its other obligations hereunder, including, but not limited to, formation documents, resolutions and certificates of good standing; (iii) execute and deliver to Tenant all other documents, instruments, certificates and affidavits necessary to consummate the transaction contemplated by this section, including, without limitation, an IRS §1445 certificate; and (iv) cause all liens (including, without limitation, all Fee Mortgages) affecting the Excess Land to be released and discharged, except for any liens arising or resulting directly from ▇▇▇▇▇▇Tenant’s affirmative acts. Tenant shall be responsible for up to Twenty-Five Thousand and No/100 Dollars ($25,000.00) of the out-of-pocket closing costs incurred by Landlord in conveying the Excess Land to Tenant, including, without limitation, the cost of subdividing the Excess Land (if required) and all transaction costs in consummating such closing; provided, (i) Landlord shall be responsible for the cost of releasing any Fee Mortgages and other Monetary Liens, such costs shall be paid by Landlord and shall not be included in Project Costs, and (ii) Landlord shall provide Tenant with reliable evidence of the amount of such costs and the payment thereof, including, but not limited to, invoices and paid receipts.