Common use of Excluded Land Clause in Contracts

Excluded Land. (a) Landlord shall have the right from time to time, in Landlord’s sole discretion (except as otherwise provided below), to partition, divide, sub-divide, sell and/or finance the Excluded Land, subject to the terms and conditions of this Section 1.7. Landlord shall use diligent efforts to (i) determine the scope of the Excluded Land with respect to each Property, if any, within one hundred eighty (180) days after the PropCo Closing Date and (ii) upon determination of the scope of the Excluded Land, cause the surveyor that prepared the survey for the Demised Premises in connection with the Propco Closing Date to complete a survey of such Excluded Land as promptly as commercially practicable after such determination and, once such survey is completed, deliver a copy of such completed survey to Tenant, at Landlord’s sole cost and expense. Landlord’s failure notwithstanding such efforts to determine the scope of the Excluded Land for an applicable Property within the time frame set forth in the preceding sentence, or to obtain a survey of the Excluded Land within any particular period of time thereafter, shall not preclude Landlord from electing at a later date to partition, divide, sub-divide, sell and/or finance such Excluded Land. Neither the determination of the scope of any Excluded Land, nor the subsequent separation, development or use of the same, shall violate any applicable Property Requirements or impair in any material respect Tenant’s access to and from, or use and enjoyment of, the Demised Premises (together with its loading docks, bays, platforms, service-ways and driveways) by Tenant (or any subtenant that is a party to a sublease entered into in accordance with the provisions of this Lease) for operations therein and therefrom consistent with Tenant’s use thereof for the Permitted Use. (b) With respect to each applicable Property, from and after the date that the applicable Excluded Land with respect to such Property has been determined by Landlord, Landlord shall use diligent efforts to take the following actions at Landlord’s sole cost and expense with respect to such Property (the “Separation Actions”): (i) create a separate tax lot for the Land, separate and apart from one or more separate tax lots for the Excluded Land (it being agreed that Landlord shall cause such separate tax lots to be created prior to any sale or development of such Excluded Land); (ii) establish any easements, reciprocal easements or other agreements reasonably required to establish unilateral or reciprocal ingress, egress, access, utilities, drainage, stormwater, construction and similar easements (the “Excluded Land Easements”) which may be reasonably required to separate the Excluded Land and the Demised Premises and may be reasonably required by the Parties to provide each of the Excluded Land and the Demised Premises with separate ingress, egress, utilities, facilities and other separate attributes; (iii) establish such other joint arrangements (the “Excluded Land Co-Existence Agreements”) and take such other actions as may be reasonably required for the harmonious co-existence and the physical and legal separation of the Excluded Land and the Demised Premises; and (iv) if direct metering or direct access is not available at a commercially reasonable cost, creation of separate metering (or sub-metering) of utilities and other actions designed to allocate the provision and the cost of utilities between the Excluded Land (and any subsequent improvements thereto) and the Demised Premises, it being the mutual understanding of the Parties that, to the greatest extent practicable under the circumstances, amounts constituting Third-Party Charges shall be (A) allocable separately to the Excluded Land and the Demised Premises and (B) billed and payable separately by Landlord (as to the Excluded Land) and by Tenant (as to the Demised Premises); provided, however, that, to the extent that it is not commercially practicable for the Parties to arrange for the separate (or other equitable) payment of any such Third-Party Charges directly by the Parties, the Parties shall jointly negotiate, approve and execute such cost sharing agreements as may be mutually acceptable to them in their commercially reasonable judgment (the “Excluded Land Cost Sharing Agreements”) and shall otherwise cooperate reasonably and in good faith with each other to ensure that the Property Charges attributable to the Demised Premises are paid by Tenant and that all real estate taxes and other costs and expenses allocable to the Excluded Land are paid by Landlord. If the Parties are unable to agree upon the form and substance of an Excluded Land Easement, an Excluded Land Co-Existence Agreement or an Excluded Land Cost Sharing Agreement, either Party may submit such disagreement to binding arbitration in accordance with the provisions of Section 27.1 hereof. (c) Tenant shall cooperate, at Landlord’s sole cost and expense, with the reasonable requests of Landlord in connection with the Separation Actions, it being agreed that Landlord shall be solely responsible for: (i) paying all of its own costs, expenses and fees (including permitting fees) incurred in connection with the Separation Actions and in connection with entering into, negotiating and/or recording any Excluded Land Easement, Excluded Land Co-Existence Agreement or Excluded Land Cost Sharing Agreement; and (ii) reimbursing Tenant, promptly after Tenant’s request therefor (which request shall be accompanied by reasonable supporting documentation), for Costs and Expenses incurred by or for the benefit of Tenant in connection with Landlord’s requests for Tenant’s cooperation in connection with Separation Actions, including reviewing, entering into and negotiating any Excluded Land Easement, Excluded Land Co-Existence Agreement or Excluded Land Cost Sharing Agreement. (d) With respect to each applicable Property, until such time as Landlord creates a separate tax lot for the applicable Excluded Land, real estate taxes (and any other impositions) assessed against the applicable Demised Premises and the Excluded Land shall be apportioned between the Parties equitably, with Tenant paying its equitable share of such taxes (and other impositions) for such Demised Premises and Landlord paying its equitable share of such taxes (and other impositions) for such Excluded Land. The Parties shall cooperate in good faith to determine the equitable share of such taxes (and other impositions) attributable to such Excluded Land. If, within thirty (30) days following Landlord’s determination of the size and location of the Excluded Land with respect to a Property, the Parties are unable to agree on the equitable sharing of such taxes (and other impositions), either Party may submit such disagreement to binding arbitration in accordance with the provisions of Section 27.1 hereof. With respect to each Property, prior to the creation of separate tax lots for the applicable Excluded Land, once the equitable share attributable to such Excluded Land has been finally determined, Landlord shall pay its equitable share of real estate taxes (and/or other impositions) directly to the applicable taxing authorities and submit proof of such payment to Tenant on or before the day that is ten (10) Business Days before the applicable due dates thereof. If Landlord fails to pay its equitable share of any real estate taxes (and/or other impositions) in accordance with the immediately preceding sentence, Tenant shall have the right upon five (5) Business Days’ Notice (provided Landlord does not pay the same within such five (5) Business Day period) to pay the same on Landlord’s behalf (including any late charges or penalties that may have accrued by reason of any late payment thereof by Landlord) and, at Tenant’s option and without duplication, to (i) receive reimbursement for such payment from Landlord promptly after Tenant’s written request therefor (which request shall be accompanied by reasonable supporting documentation of the payment of such taxes and/or other impositions) and/or (ii) credit the same against the next installments of Base Rent due from Tenant to Landlord hereunder. In addition, following the date that the equitable share attributable to such Excluded Land has been finally determined, to the extent Tenant paid any real estate taxes (and/or other impositions) attributable to such Excluded Land, Landlord shall reimburse Tenant for such amount within fifteen (15) days after Tenant’s request therefor (which request shall be accompanied by reasonable supporting documentation of the payment of such taxes and/or other impositions). In the event Landlord fails to reimburse Tenant within the aforesaid fifteen (15) day period, Tenant shall have the right to credit the unreimbursed amount against the next installments of Base Rent due from Tenant to Landlord hereunder.