|FORTERRA, INC. filed this Form 8-K on 06/11/2018|
purposes of recalculating the Base Rent for the first year of the Option Period in accordance with clause (c)(ii) above; and if the two Appraisers so selected are unable to agree on the Fair Market Rental Value but the appraisals are not more than ten percent (10%) apart, computed from the base of the higher appraisal, the two appraisals shall be averaged and the average shall constitute the Fair Market Rental Value of the Demised Properties for purposes of recalculating the Base Rent for the first year of the Option Period. If the appraisals differ by more than ten percent (10%), such two Appraisers shall select a third Appraiser (who must satisfy the qualifications for an Appraiser in this Lease); and if the two Appraisers are unable to agree upon a third Appraiser within fifteen (15) days, then they shall in lieu thereof each select the names of two willing persons qualified to be Appraisers hereunder and from the four persons so named, one name shall be drawn by lot by a representative of Landlord in the presence of a representative of Tenant, and the person whose name is so drawn shall be the third Appraiser. The third Appraiser shall, within fifteen (15) days after having been selected, render his or her opinion of which of the amounts proposed by the original two Appraisers most closely represents the actual Fair Market Rental Value of the Premises for the first year of the Option Period, and the amount so selected by the third Appraiser shall be the Fair Market Rental Value of the Premises for the first year of the Option Period. Landlord and Tenant shall each pay the fees of their respective Appraisers, and the fee of the third Appraiser shall be shared equally between Landlord and Tenant.
Section 3.03 Additional Rent.
(a) If by applicable Law, any general or special assessment or like charge may be paid in installments without any penalty whatsoever, then such assessment may be paid in such installments, and Tenant shall only be liable for the portion thereof that is allocable or attributable to the Lease Term or any portion thereof. If such assessment or charge may be payable in installments with interest, Tenant may pay such assessment or charge in installments, together with all interest thereon.
(b) Tenant shall pay all Real Estate Taxes for the Demised Properties directly to the collecting authority prior to the delinquency date thereof. Within thirty (30) days after Tenant has received evidence from any collecting authority that such Real Estate Taxes have been paid, Tenant shall also provide Landlord with a copy of such evidence that such Real Estate Taxes were paid. Nothing in this Lease shall obligate Tenant to pay any estate, inheritance, franchise, income or similar taxes of Landlord nor shall any of same be deemed Real Estate Taxes, unless the same shall be specifically imposed in substitution for, or in lieu of, Real Estate Taxes. If Tenant fails to pay to the collecting authority any Real Estate Taxes when due hereunder, then Tenant shall, without limiting any other remedies available to Landlord, reimburse Landlord for any and all penalties or interest, or portion thereof, paid or incurred by Landlord as a result of such nonpayment or late payment by Tenant. Without limitation of the foregoing, Tenant shall deposit with Landlord, no later than thirty (30) days prior to the end of the Lease Term, an amount sufficient to pay unpaid Real Estate Taxes and other accrued liabilities that will encumber the Demised Properties after the end of the Lease Term, to the extent that Real Estate Taxes and such other liabilities have accrued and will accrue through the end of the Lease Term. Landlord shall segregate all such deposits from its other funds and use such deposits solely to pay such Real Estate Taxes and accrued liabilities as they come due. All collecting authorities shall be instructed to send all invoices for Real Estate Taxes to Tenant. In the event any collecting authority sends the invoices to Landlord instead of Tenant, Landlord shall promptly forward such invoices to Tenant. If Landlord receives any notices of assessment from any Governmental Authority for any of the Demised Properties, Landlord shall promptly forward a copy of such notices of assessment to Tenant.
(c) Provided that there shall be no Event of Default occurring at the time in question, Tenant shall have the right to undertake an action or proceeding against the applicable collecting authority
-6- A&R MASTER LAND AND BUILDING LEASE