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200501143 and /or runoff from the grantee's Tract over, upon and across the Common Area of the grantor's Tract, upon the following conditions and terms: (i) The Common Area grades and the surface water drainage /detention system for the Shopping Center shall be initially constructed in strict conformance with the plans and specifications prepared pursuant to the Kohl's Lease; and (ii) No Party shall alter or permit to be altered the surface of the Common Area or the drainage /retention system constructed on its Tract if such alteration would materially increase the flow of surface water onto an adjacent Tract either in the aggregate or by directing the flow of surface water to a limited area. The surface water collection, detention and distribution facilities shall be deemed to be a Common Utility Line. 2.3 Building Encroachments. (a) In order to accommodate any Building improvements which inadvertently may be constructed beyond a Tract's boundary line, each Party grants to each Party owning an adjacent Tract an easement, not to exceed a maximum lateral distance of six inches (6 "), in, to, over, under and across that portion of the grantor's Tract adjacent to such common boundary line for the maintenance and replacement of such encroaching Building improvements. (b) If a constructing Party (the "Constructing Party ") determines that it is necessary to place underground piers, footings and /or foundations ( "Subsurface Construction Elements ") across the boundary line of its Tract, the Constructing Party shall advise the Party owning the adjacent Tract (the "Adjacent Party ") of its construction requirement and shall provide plans and specifications relating thereto, including proposed construction techniques for the Subsurface Construction Elements. The Adjacent Party hereby grants and conveys to the Constructing Party for the benefit of its Tract an easement, not to exceed a maximum lateral distance of five feet (5'), in, to, under and across that portion of the Adjacent Party's Tract not theretofore occupied by any then existing structure, for the installation, maintenance and replacement of such Subsurface Construction Elements. (c) The Adjacent Party reserves the right to require the Constructing Party to modify the design specifications for the Subsurface Construction Elements in order to permit the Adjacent Party the opportunity to use the same in connection with the construction of its Building improvements to the end that each Party shall be able to place its Building immediately adjacent to the common boundary line. If a common Subsurface Construction Element is used by the Parties, each shall assume and pay its reasonable share of the cost and expense of the design and construction thereof. If any Building using a common Subsurface Construction Element is destroyed and not replaced or is removed, the common Subsurface Construction Element shall remain in place for the benefit of the other Building using the same. (d) The foregoing easement grants shall not diminish or waive any right of a Party to recover damages resulting from the constructing Party's failure to construct its G: \LEGAL \STORES \NE \GRAND ISLAND \OEA4.WPD 11/16/04 8