|FORTERRA, INC. filed this Form 8-K on 06/11/2018|
the Elk River Property shall be subject to Section 8.03 below. Certain of these Encroachments have been insured over by Landlord through the receipt of an owner’s policy of title insurance issued by Stewart Title Guaranty Company (“Stewart”), which contains an endorsement insuring Landlord in the event of a loss that results from a third party (each a “Third Party”) exercising its rights in and to the applicable Encroached Property (each a “Title Policy”). Tenant covenants that should a Third Party, at any time during the Lease Term, seek to enforce its rights in and to an Encroached Property upon which any of the Encroachments listed on Schedule 8.02(A) (collectively, the “Structural Encroachments” and each, a “Structural Encroachment”) are located, then Tenant shall use commercially reasonable efforts to resolve the situation with such Third Party by coming to an agreement with such Third Party, which agreement permits the applicable Structural Encroachment to remain on the applicable Encroached Property, such that the applicable Structural Encroachment is no longer deemed to be encroaching onto the Encroached Property; provided, however, that if the applicable Structural Encroachment is insured over under a Title Policy, then Tenant shall be responsible for the costs to resolve the applicable Encroachment, pursuant to the terms hereof, only to the extent such costs exceed any proceeds Landlord obtains from Stewart as a result of such Third Party seeking to enforce its rights. It being the intention of both Landlord and Tenant, and Landlord and Tenant hereby acknowledge and agree, that prior to Tenant being liable for any costs in accordance with the provisions of this Section 8.02, Landlord must first file a claim against its Title Policy, if and to the extent such Encroachment is insured over pursuant to such Title Policy. Tenant covenants that should a Third Party, at any time during the Lease Term, seek to enforce its rights in and to an Encroached Property upon which any of the Encroachments listed on Schedule 8.02(B) (collectively, the “Non-Structural Encroachments”, and each, a “Non-Structural Encroachment”) are located, then Tenant shall, and hereby agrees to, resolve the situation with such Third Party by either (i) moving the applicable Non-Structural Encroachment off of the Encroached Property and onto the applicable Demised Property or (ii) coming to an agreement with such Third Party, which agreement permits the applicable Non-Structural Encroachment to remain on the applicable Encroached Property, such that the applicable Non-Structural Encroachment is no longer deemed to be encroaching on such Encroached Property.
Section 8.03 Elk River.
(a) Landlord and Tenant acknowledge and agree that (i) a portion of those Buildings commonly referred to as Building 7 (including a conveyor belt) and Building 9, located on that certain Demised Property commonly known as 1340 6th Street, Elk River, Minnesota (the “Elk River Property”), encroach onto certain easements (the “City Easements”) that have been granted to the City of Elk River, a Minnesota municipal corporation (the “City of Elk River”), in exchange for the City of Elk River transferring fee title to the Remaining Elk River Property (as hereinafter defined) to Landlord (such encroachments, the “Elk River Encroachments”), as required under Section 8.03(b), which Elk River Encroachments are depicted on that certain survey of the Elk River Property, dated as of January 19, 2016, and last revised on May 16, 2018, prepared by Ulteig Engineers, Inc., (ii) Landlord has an owner’s policy of title insurance by Stewart, which provides Landlord with insurance coverage for certain losses Landlord may incur as a result of the Elk River Encroachments (the “Elk River Title Policy”), and (iii) if, at any time during the Lease Term, the City of Elk River and/or Centerpoint, as applicable, asserts its right(s) under any of the Elk River Easements to terminate Landlord’s right to encroach onto such Elk River Easements, pursuant to the terms thereof, and, as a result thereof, either (a) Building 7 and/or Building 9 must be relocated onto another portion of the Elk River Property, then Landlord shall file a claim against Stewart under its Elk River Title Policy upon receipt of any reasonable documentation that Landlord may need to receive from Tenant to file such claim (the “Elk River Supporting Documentation”), and Tenant shall relocate Building 7 and/or Building 9, as applicable, to a portion of the Elk River Property reasonably acceptable to Landlord so that the applicable Building is no longer encroaching onto any of the Elk River Easements, and any such relocation shall be completed at Tenant’s sole cost and expense, subject to Tenant receiving any title insurance proceeds (or reimbursement from Landlord) due to Tenant as set forth herein or (b) if the City of Elk River and/or Centerpoint agree to permit the applicable Elk River Encroachments to remain subject to either, (y) payment of a reasonable sum delivered to the City of Elk River and/or Centerpoint, as applicable, and Landlord, Tenant and the City of Elk River shall enter into an agreement
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