Determination of Fair Market Value. Upon the commencement of the extension term, the Base Rent shall be an annual amount equal to ninety-five percent (95%) of the fair market rental value of the Premises in its then current condition, use and configuration, and without regard to any other possible condition, use, configuration or land use entitlements or restrictions with respect to the Premises, determined as follows (“Fair Market Rent”): (a) Landlord shall deliver to Tenant written notice of Landlord’s determination of fair market rental value within thirty (30) days after Landlord receives notice from Tenant that Tenant has exercised the Extension Option. (b) If Tenant disputes Landlord’s determination of the fair market rental value as contained in Landlord’s notice, Tenant shall notify Landlord in writing within twenty (20) days of its receipt of Landlord’s determination, which notice shall set forth Tenant’s determination of the fair market rental value. Should Tenant timely notify Landlord as aforesaid, Landlord and Tenant shall attempt to resolve their differences within twenty (20) days following Landlord’s receipt of Tenant’s notice. Should Tenant fail to timely notify Landlord as aforesaid, then ninety-five percent (95%) of Landlord’s determination of fair market rental value as contained in Landlord’s notice shall constitute the Fair Market Rent. (c) Should Tenant timely notify Landlord as aforesaid and if Landlord and Tenant cannot agree on fair market rental value during such ten (10) day period, Landlord and Tenant shall each appoint a disinterested commercial real estate broker specializing in the leasing of similarly situated real property in San Mateo County for at least ten (10) years and give notice of such appointment to the other within ten (10) days after the preceding ten (10) day period. If either Landlord or Tenant shall fail timely to appoint a broker, then the single broker appointed by one party shall proceed to make the determination of fair market rental value. Such broker(s) shall, within thirty (30) days after the appointment of the last of them to be appointed, complete their written determinations of fair market rental value and furnish the same to Landlord and Tenant. Each party shall pay the fees and costs of the broker appointed by it. If the valuations vary by 5% or less of the lower value, the fair market rental value shall be the average of the two valuations. (d) If the valuations vary by more than 5% of the lower value, the two brokers shall, within ten (10) days after submission of the last appraisal report, appoint a third disinterested broker satisfying the same qualifications. If the two brokers shall be unable to agree in a timely manner on the selection of the third broker, then either broker, on behalf of both, may request appointment of such third disinterested broker by the presiding judge of the Superior Court of the county in which the Premises are located or through the American Arbitration Association process. Such third broker shall, within thirty (30) days after appointment, select one of the two valuations submitted by the first two brokers as such third broker’s determination of fair market rental value, and shall submit such decision to Landlord and Tenant. The fair market rental value of the Premises as determined by the third broker shall be controlling. All fees and costs incurred in connection with the determination of fair market rental value by the third broker shall be paid one-half by Landlord and one-half by Tenant. (e) All valuations done pursuant to this Section 25.2 shall be based on leases of similar office, research & development, and lab flex buildings in the cities of Xxxxxx City, Redwood Shores and San Mateo.
Appears in 2 contracts
Samples: Standard NNN Lease (Vaxcyte, Inc.), Standard NNN Lease (SutroVax, Inc.)
Determination of Fair Market Value. Upon If the commencement of the extension term, the Base Rent shall be an annual amount equal FRANCHISEE fails to ninety-five percent (95%) of the fair market rental value of the Premises in its then current condition, use and configuration, and without regard to any other possible condition, use, configuration or land use entitlements or restrictions with respect to the Premises, determined as follows (“Fair Market Rent”):
(a) Landlord shall deliver to Tenant give COST CUTTERS written notice of Landlord’s determination of fair market rental value within thirty (30) days after Landlord receives notice from Tenant that Tenant has exercised the Extension Option.
(b) If Tenant disputes Landlord’s determination asking price of the fair market rental value as contained in Landlord’s noticeBusiness Assets, Tenant shall notify Landlord in writing within twenty (20) days of its receipt of Landlord’s determination, which notice shall set forth Tenant’s determination of or if COST CUTTERS and the fair market rental value. Should Tenant timely notify Landlord as aforesaid, Landlord and Tenant shall attempt to resolve their differences within twenty (20) days following Landlord’s receipt of Tenant’s notice. Should Tenant fail to timely notify Landlord as aforesaid, then ninety-five percent (95%) of Landlord’s determination of fair market rental value as contained in Landlord’s notice shall constitute the Fair Market Rent.
(c) Should Tenant timely notify Landlord as aforesaid and if Landlord and Tenant FRANCHISEE cannot agree on the price of the Business Assets, then either party will have the right to demand that the price of the Business Assets be determined by Arbitration in accordance with the Rules and Regulations of the American Arbitration Association. The Arbitration hearing will be held as soon as possible, but in no event later than seven (7) business days from the date Arbitration is demanded by either party. The Arbitrator will determine the fair market value of the Business Assets. The Arbitrator will not consider any value for goodwill associated with the names Cost Cutters(R) or Cost Cutters Family Hair Care(R) or for going concern value in determining the fair market value of the Business Assets since the right of purchase granted to COST CUTTERS pursuant to this provision applies only after this Agreement has expired or has been terminated, or the FRANCHISEE has ceased doing business. Furthermore, the Arbitrator will not consider any value for the Lease for the Franchised Location if COST CUTTERS agrees to assume the Lease and pay the rental and operating costs. If the Arbitrator is unable to determine the fair market value during such ten of any of the Business Assets, then they will be valued at book value (10cost less depreciation). COST CUTTERS will have the right, but not the obligation, to purchase any or all of the Business Assets from the FRANCHISEE for cash within fifteen (15) day period, Landlord and Tenant shall each appoint a disinterested commercial real estate broker specializing in the leasing of similarly situated real property in San Mateo County for at least ten (10) years and give notice of such appointment to the other within ten (10) business days after the preceding ten (10) day period. If either Landlord or Tenant shall fail timely to appoint a broker, then the single broker appointed by one party shall proceed to make the determination of fair market rental value. Such broker(s) shall, within thirty (30) days after the appointment of the last of them to be appointed, complete their written determinations of fair market rental value and furnish the same to Landlord and Tenant. Each party shall pay the fees and costs of the broker appointed by it. If the valuations vary by 5% or less of the lower value, the fair market rental value shall be the average of the two valuations.
(d) If the valuations vary by more than 5% of the lower value, the two brokers shall, within ten (10) days after submission of the last appraisal report, appoint a third disinterested broker satisfying the same qualifications. If the two brokers shall be unable to agree in a timely manner on the selection of the third broker, then either broker, on behalf of both, may request appointment of such third disinterested broker by the presiding judge of the Superior Court of the county in which the Premises are located or through the American Arbitration Association process. Such third broker shall, within thirty (30) days after appointment, select one of the two valuations submitted by the first two brokers as such third broker’s determination of fair market rental value, and shall submit such decision to Landlord and Tenant. The fair market rental value of the Premises as determined Business Assets has been established by the third broker shall be controllingArbitrator in writing. All fees Nothing in this Article will prohibit COST CUTTERS from enforcing the terms and costs incurred conditions of this Agreement, including the covenants not to compete contained in connection with the determination of fair market rental value by the third broker shall be paid one-half by Landlord and one-half by TenantArticle 12.
(e) All valuations done pursuant to this Section 25.2 shall be based on leases of similar office, research & development, and lab flex buildings in the cities of Xxxxxx City, Redwood Shores and San Mateo.
Appears in 2 contracts
Samples: Franchise Agreement (Barbers Hairstyling for Men & Women Inc), Franchise Agreement (Barbers Hairstyling for Men & Women Inc)
Determination of Fair Market Value. Upon the commencement of the extension termExcept as otherwise expressly provided in this Agreement, the Base Rent shall be an annual amount equal to ninety-five percent (95%) of the fair market rental value of the Premises in its then current conditionwherever this Agreement refers to, use and configurationor calls for a determination of, and without regard to any other possible condition, use, configuration or land use entitlements or restrictions with respect to the Premises, determined as follows (“Fair Market Rent”):
Value (a) Landlord shall deliver to Tenant written notice of Landlord’s determination of fair market rental value within thirty (30) days after Landlord receives notice from Tenant that Tenant has exercised the Extension Option.
(b) If Tenant disputes Landlord’s including, for example, a determination of the fair market rental value as contained in Landlord’s notice, Tenant shall notify Landlord in writing within twenty (20) days of its receipt of Landlord’s determination, which notice shall set forth Tenant’s Company Fair Market Value pursuant to Section 1.i. when there is no Per Share Public Market Value or a determination of the fair market rental value. Should Tenant timely notify Landlord as aforesaidFair Market Value of consideration received in a Sale of the Company pursuant to Section 5.a.), Landlord and Tenant shall attempt to resolve their differences within twenty (20) days following Landlord’s receipt of Tenant’s notice. Should Tenant fail to timely notify Landlord as aforesaid, then ninety-five percent (95%) of Landlord’s determination of fair market rental value as contained in Landlord’s notice shall constitute the Fair Market RentValue of the item in question will be determined in accordance with the following provisions:
a. The Company and Executive may agree on the Fair Market Value of the item in question.
(c) Should Tenant timely notify Landlord as aforesaid b. If the Company and if Landlord and Tenant cannot Executive are unable to agree on fair market rental value during such ten (10) day perioda Fair Market Value, Landlord and Tenant shall each appoint a disinterested commercial real estate broker specializing in the leasing of similarly situated real property in San Mateo County for at least ten (10) years and give notice of such appointment to the other within ten (10) 15 days after the preceding ten (10) day perioddate notice of a dispute as to that issue is given by either party to the other, or if they otherwise determine that an appraisal should be used to determine Fair Market Value, then they will cause the Fair Market Value as of the required date of determination to be determined by a qualified appraiser acceptable to both of them. If they are unable to agree on a single appraiser within 15 days after the date of notice of the dispute, each of them will have an additional 10 days to select one appraiser nationally recognized in valuing items of the kind required to be valued. If either Landlord or Tenant shall fail timely to appoint a brokeran appraiser, then the single broker appointed by one party shall proceed to make the determination of fair market rental valueFair Market Value by the one appraiser will be binding.
c. Each appraiser will determine the Fair Market Value of the item in question, taking into account such matters as may be prescribed by this Agreement and such other matters as the appraiser may deem relevant. Such broker(s) shall, The Company and Executive will use their reasonable best efforts to cause each appraiser to submit to them a written report indicating that appraiser's determination of Fair Market Value within thirty (30) 30 days after the appointment date such appraiser is selected.
d. If the higher of the last of them to be appointed, complete their written determinations of fair market rental value and furnish the same to Landlord and Tenant. Each party shall pay the fees and costs of the broker appointed by it. If the valuations vary by 5two appraisals is 110% or less of the lower valueappraisal, the fair market rental value shall be the average of the two valuationswill be the Fair Market Value.
(d) e. If the valuations vary by higher of the two appraisals is more than 5110% of the lower valueappraisal, the Company will immediately notify the two brokers shall, within ten (10) days after submission of the last appraisal report, appraisers and cause them to appoint a third disinterested broker satisfying similarly qualified appraiser within 10 days after such notice. The Company and Executive will use their reasonable best efforts to cause such third appraiser (who will not be apprised of the same qualificationsdetermination of the other appraisers) to submit a written report to each of them indicating such appraiser's determination of Fair Market Value within 30 days after the date such third appraiser is selected. If three appraisals are necessary then the average of the two brokers shall be unable to agree in a timely manner on the selection of the third broker, then either broker, on behalf of both, may request appointment of such third disinterested broker by the presiding judge of the Superior Court of the county appraisals in which the Premises determinations of Fair Market Value are located or through closest together will be the American Arbitration Association process. Such third broker shallFair Market Value or, within thirty (30) days after appointmentif the highest and lowest are equidistant from the middle determination, select one of then the two valuations submitted by middle determination will be the first two brokers Fair Market Value.
f. Each party will use reasonable best efforts to provide each appraiser with such information as such third broker’s determination appraiser may reasonably request for the purpose of fair market rental value, and shall submit such decision to Landlord and Tenant. The fair market rental value of the Premises as determined by the third broker shall be controlling. All fees and costs incurred in connection with the determination of fair market rental value by the third broker shall be paid one-half by Landlord and one-half by Tenant.
(e) All valuations done preparing an appraisal pursuant to this Section 25.2 shall 8.
g. A determination of Fair Market Value made pursuant to this Section 8 will be based on leases final, binding and nonappealable. Each party will be responsible for one-half of similar officeall fees and expenses of all appraisers.
h. If the determination of Fair Market Value pursuant to this Section 8 is a determination of the Company Fair Market Value for the purpose of determining Per Share Appreciation or SAR Per Share Appreciation or an adjustment to Deferred Compensation Per Share Base Value or SAR Per Share Base Value, research & development, the Company will make the required determination of such amounts using the Company Fair Market Value determined pursuant to this Section 8 and lab flex buildings in will give notice of such determination to Executive within two business days after receiving notice of the cities determination of Xxxxxx City, Redwood Shores and San MateoCompany Fair Market Value pursuant to this Section 8.
Appears in 1 contract
Samples: Deferred Compensation and Stock Appreciation Right Agreement (Liberty Digital Inc)
Determination of Fair Market Value. Upon (i) If within ten (10) days from the commencement date of the extension termExercise Notice, the Base Rent shall be an annual amount equal to ninety-five percent (95%) of Company and Grantee cannot agree on the fair market rental value of the Premises in its Shares, then current conditionthe Board (or a committee of the Board, use and configurationif applicable), and without regard to any other possible condition, use, configuration or land use entitlements or restrictions with respect to the Premises, determined as follows (“Fair Market Rent”):
(a) Landlord shall deliver to Tenant written notice of Landlord’s will make a determination of fair market rental value within thirty and notify the Grantee of that determination (30the “Proposed Price”). The notification to the Grantee must specify the Proposed Price, the method or calculation for determining the price, and such other information as may be reasonably requested by the Grantee. Grantee will have the option for ten (10) days after Landlord receives notice from Tenant that Tenant has exercised to accept or reject the Extension Option.
(b) Proposed Price. If Tenant disputes Landlordthe Grantee does not notify Company of Grantee’s determination of the fair market rental value as contained in Landlord’s notice, Tenant shall notify Landlord in writing rejection within twenty (20) days of its receipt of Landlord’s determination, which notice shall set forth Tenant’s determination of the fair market rental value. Should Tenant timely notify Landlord as aforesaid, Landlord and Tenant shall attempt to resolve their differences within twenty (20) days following Landlord’s receipt of Tenant’s notice. Should Tenant fail to timely notify Landlord as aforesaid, then ninety-five percent (95%) of Landlord’s determination of fair market rental value as contained in Landlord’s notice shall constitute the Fair Market Rent.
(c) Should Tenant timely notify Landlord as aforesaid and if Landlord and Tenant cannot agree on fair market rental value during such ten (10) day period, Landlord and Tenant shall each appoint a disinterested commercial real estate broker specializing in Grantee will be deemed to have accepted the leasing of similarly situated real property in San Mateo County for at least ten Proposed Price.
(10ii) years and give notice of such appointment to If the other within ten (10) days after Grantee timely rejects the preceding ten (10) day period. If either Landlord or Tenant shall fail timely to appoint a brokerProposed Price, then the single broker appointed by one party shall proceed matter will be submitted to make the determination of fair market rental value. Such broker(s) shall, within thirty (30) days after the appointment of the last of them to be appointed, complete their written determinations of fair market rental value and furnish the same to Landlord and Tenant. Each party shall pay the fees and costs of the broker appointed by it. If the valuations vary by 5% or less of the lower value, the fair market rental value shall be the average of the two valuations.
(d) If the valuations vary by more than 5% of the lower value, the two brokers shall, within ten (10) days after submission of the last appraisal report, appoint a third disinterested broker satisfying the same qualifications. If the two brokers shall be unable to agree in a timely manner on the selection of the third broker, then either broker, on behalf of both, may request appointment of such third disinterested broker by the presiding judge of the Superior Court of the county in which the Premises are located or through arbitration before the American Arbitration Association process(“AAA”) under the rules which will then be in effect. Such third broker shall, within thirty The AAA will be requested to determine (30A) days after appointment, select one of the two valuations submitted by the first two brokers as such third broker’s determination of fair market rental value, and shall submit such decision to Landlord and Tenant. The fair market rental value of the Premises Shares; and (B) the reasonable cost of attorneys’ and accounting fees for determination of such fair market value. In connection with such arbitration, the Proposed Price will be inadmissible for purposes of determining the fair market value and the arbitrator(s) will be instructed not to consider the Proposed Price if that information comes to their attention.
(iii) In the event of arbitration, the costs of arbitration will be borne as follows:
(A) If the arbitrator’s determination is equal to or less than ninety percent (90%) of the Proposed Price, the Grantee must pay all arbitration costs, including the amount of Company’s attorneys’ and accounting fees determined by the third broker shall be controlling. All fees and costs arbitrator to have been reasonably incurred in connection with therewith;
(B) If the arbitrator’s determination is equal to or more than one hundred ten percent (110%) of fair market rental value the Proposed Price, Company must pay all arbitration costs, including the amount of Grantee’s attorneys’ and accounting fees determined by the third broker shall be paid one-half by Landlord and one-half by Tenant.arbitrator to have been reasonably incurred in connection therewith; or
(eC) All valuations done pursuant to this Section 25.2 shall If the arbitrator’s determination is between ninety percent (90%) and one hundred ten percent (110%) of the Proposed Price, the costs of arbitration will be based on leases of similar office, research & developmentsplit equally between Company and the Grantee, and lab flex buildings in the cities of Xxxxxx City, Redwood Shores each will bear their own attorneys’ and San Mateoaccounting fees.
Appears in 1 contract
Samples: Stock Purchase Rights Agreement (Richtech Robotics Inc.)
Determination of Fair Market Value. Upon the commencement of the extension term, the Base Rent shall be an annual amount equal to ninety-five percent (95%) of the fair market rental value of the Premises in its then current condition, use and configuration, and without regard to any other possible condition, use, configuration or land use entitlements or restrictions with respect to the Premises, determined as follows (“Fair Market Rent”):
(a) Landlord shall deliver If all or any part of the Purchase Price specified in the Transfer Notice is a non-cash offer, then the Selling Shareholder and the Company may mutually agree as to Tenant written notice the Fair Market Value of Landlord’s determination of fair market rental the non-cash offer. If the Selling Shareholder and the Company are unable to agree on such value within thirty (30) days after Landlord receives notice from Tenant that Tenant has exercised the Extension OptionCompany and the Remaining Shareholders receive the Transfer Notice, then in such event, Fair Market Value shall be established as hereinafter provided by two independent qualified appraisers knowledgeable in the newspaper publishing industry, one to be appointed by the Selling Shareholder and the other to be appointed by majority vote of the Remaining Shareholders (irrespective of whether the Company shall exercise the option granted to it under Section 5.03 of this Agreement).
(b) If Tenant disputes Landlord’s determination of the fair market rental value as contained in Landlord’s notice, Tenant The two independent appraisers shall notify Landlord in writing within twenty (20) days of its receipt of Landlord’s determination, which notice shall set forth Tenant’s determination of the fair market rental value. Should Tenant timely notify Landlord as aforesaid, Landlord and Tenant shall attempt to resolve their differences within twenty (20) days following Landlord’s receipt of Tenant’s notice. Should Tenant fail to timely notify Landlord as aforesaid, then ninety-five percent (95%) of Landlord’s determination of fair market rental value as contained in Landlord’s notice shall constitute the Fair Market Rent.
(c) Should Tenant timely notify Landlord as aforesaid and if Landlord and Tenant cannot agree on fair market rental value during such ten (10) day period, Landlord and Tenant shall each appoint a disinterested commercial real estate broker specializing in the leasing of similarly situated real property in San Mateo County for at least ten (10) years and give notice of such appointment to the other within ten (10) days after the preceding ten (10) day period. If either Landlord or Tenant shall fail timely to appoint a broker, then the single broker be appointed by one party shall proceed to make the determination of fair market rental value. Such broker(s) shall, within thirty (30) days after receipt by the appointment Company and Remaining Shareholders of the last of them Transfer Notice. If either the Selling Shareholder or the Remaining Shareholders fails to appoint an appraiser within this time period, then its right to do so shall lapse, and the appraisal made by the one independent appraiser who is timely appointed shall be appointedthe Fair Market Value. If two appraisals are made, complete their written determinations of fair market rental value and furnish if the same to Landlord and Tenant. Each party shall pay the fees and costs higher appraisal does not exceed 110% of the broker appointed by it. If the valuations vary by 5% or less of the lower valuelower, the fair market rental value shall Fair Market Value will be the average of the two valuations.
(d) If the valuations vary by more than 5% of the lower value, the two brokers shall, within ten (10) days after submission of the last appraisal report, appoint a third disinterested broker satisfying the same qualificationstwo. If the two brokers shall appraisals are further apart, a third appraiser will be unable to agree in a timely manner on the selection of the third broker, then either broker, on behalf of both, may request appointment of such third disinterested broker by the presiding judge of the Superior Court of the county in which the Premises are located or through the American Arbitration Association process. Such third broker shall, selected within thirty (30) days after appointment, select one of the two valuations submitted by the first two brokers as such third broker’s determination of fair market rental valueappraisers, and the Fair Market Value will be deemed to be the average of the third appraisal and the one of the first two appraisals which is closer to the third. All appraisals shall submit be made within thirty (30) days of appointment of an appraiser and written notice of the results of such decision appraisal shall be given to Landlord and Tenantthe parties within such time. The fair market rental value Fair Market Value of MNG will be determined in its entirety as a going concern, with the Selling Shareholder to receive a proportionate part of the Premises as determined total value based on the number of shares being sold by the third broker it. In making any appraisal hereunder all debts and liabilities shall be controllingtaken into account and there shall be no discount made on account of the Selling Shareholder's interest being a minority interest, and no premium imposed on account of the Selling Shareholder's interest being a majority interest. All fees The Selling Shareholder shall pay the fee of the appraiser selected by it, and costs incurred the Remaining Shareholders (irrespective of whether the Company shall exercise the option granted to it under Section 5.03 of this Agreement) shall pay the fee of the appraiser selected by them (in connection proportion to their respective ownership interests in the Company) with the determination fee of fair market rental value by any third appraiser to be divided equally among the third broker shall be paid one-half by Landlord Selling Shareholder and one-half by Tenantthe Remaining Shareholders.
(e) All valuations done pursuant to this Section 25.2 shall be based on leases of similar office, research & development, and lab flex buildings in the cities of Xxxxxx City, Redwood Shores and San Mateo.
Appears in 1 contract
Determination of Fair Market Value. Upon the commencement Whenever a determination of the extension termFair Market Value is required pursuant to any provision of this Lease, the Base Rent such Fair Market Value shall be an annual amount equal determined in accordance with the following procedure: Landlord and Tenant shall endeavor to ninety-five percent (95%) of the fair market rental value of the Premises in its then current condition, use and configuration, and without regard to any other possible condition, use, configuration or land use entitlements or restrictions with respect to the Premises, determined as follows (“agree upon such Fair Market Rent”):
(a) Landlord shall deliver to Tenant written notice of Landlord’s determination of fair market rental value Value within thirty (30) days after the date (the “Applicable Initial Date”) on which Tenant provides Landlord receives notice from Tenant that Tenant has exercised with an Option Notice to purchase the Extension Option.
Premises pursuant to Paragraph 29. If the parties shall not have signed such agreement within thirty (b30) If Tenant disputes Landlord’s determination of days after the fair market rental value as contained in Landlord’s noticeApplicable Initial Date, Tenant shall within fifty (50) days after the Applicable Initial Date select an appraiser and notify Landlord in writing within twenty (20) days of its receipt of Landlord’s determination, which notice shall set forth Tenant’s determination of the fair market rental valuename, address and qualifications of such appraiser. Should Tenant timely notify Landlord as aforesaid, Landlord and Tenant shall attempt to resolve their differences within Within twenty (20) days following Landlord’s receipt of Tenant’s noticenotice of the appraiser selected by Tenant, Landlord shall select an appraiser and notify Tenant of the name, address and qualifications of such appraiser. Should Tenant fail Such two appraisers shall endeavor to timely notify agree upon Fair Market Value based on a written appraisal made by each of them as of the Relevant Date (and given to Landlord by Tenant). If such two appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as aforesaidso agreed shall be binding and conclusive upon Landlord and Tenant. If such two appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of an appraiser by Landlord, then ninety-five percent (95%) of Landlord’s determination of fair market rental value as contained in Landlord’s notice such appraisers shall constitute the Fair Market Rent.
(c) Should Tenant timely notify Landlord as aforesaid and if advise Landlord and Tenant cannot agree on fair market rental value during such ten (10) day period, of their respective determination of Fair Market Value and shall select a third appraiser to make the determination of Fair Market Value. The selection of the third appraiser shall be binding and conclusive upon Landlord and Tenant Tenant. If such two appraisers shall each appoint be unable to agree upon the designation of a disinterested commercial real estate broker specializing in the leasing of similarly situated real property in San Mateo County for at least ten (10) years and give notice of such appointment to the other third appraiser within ten (10) days after the preceding ten expiration of the twenty (1020) day period. If either Landlord period referred to in clause (iii) above, or Tenant shall fail timely to appoint if such third appraiser does not make a broker, then the single broker appointed by one party shall proceed to make the determination of fair market rental value. Such broker(s) shall, Fair Market Value within thirty twenty (3020) days after his selection, then such third appraiser or a substituted third appraiser, as applicable, shall, at the appointment request of either party hereto (with respect to the last of them to other party), be appointed, complete their written determinations of fair market rental value and furnish the same to Landlord and Tenant. Each party shall pay the fees and costs of the broker appointed by itthe American Arbitration Association in Minneapolis, MN. The determination of Fair Market Value made by the third appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment. If the valuations vary by 5% or less of the lower valuea third appraiser is selected, the fair market rental value Fair Market Value shall be the average of the two valuations.
determination of Fair Market Value made by the third appraiser and the determination of Fair Market Value made by the appraiser (dselected pursuant to Paragraph 31(a)(ii) If the valuations vary by more than 5% hereof) whose determination of the lower value, the two brokers shall, within ten (10) days after submission of the last appraisal report, appoint a third disinterested broker satisfying the same qualifications. If the two brokers shall be unable Fair Market Value is nearest to agree in a timely manner on the selection that of the third broker, then either broker, on behalf of both, may request appointment of such third disinterested broker by the presiding judge of the Superior Court of the county in which the Premises are located or through the American Arbitration Association processappraiser. Such third broker shall, within thirty (30) days after appointment, select one of the two valuations submitted by the first two brokers as such third broker’s determination of fair market rental value, average shall be binding and shall submit such decision to conclusive upon Landlord and Tenant. All appraisers selected or appointed pursuant to this Paragraph 31(a) shall (A) be independent qualified MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth above, and (D) be registered in the State if the State provides for or requires such registration. The fair market rental value Cost of the Premises as determined by the third broker shall be controlling. All fees and costs incurred procedure described in connection with the determination of fair market rental value by the third broker this Paragraph 31(a) above shall be paid one-half by Landlord Tenant and one-half by Tenant.
(e) All valuations done Landlord. If, by virtue of any delay, Fair Market Value is not determined by the expiration or termination of the then current Term, then the date on which the Term would otherwise expire or terminate shall be extended with respect to the Premises, to the date specified for termination in the particular provision of this Lease pursuant to this Section 25.2 which the determination of Fair Market Value is being made. In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (a) the present value of the Rent for the remaining Term provided herein (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on leases the creditworthiness of similar officeTenant and (b) the present value of the Premises as of the end of such Term. The appraisers shall further assume that no default then exists under the Lease, research & development, that Tenant has complied (and lab flex buildings in will comply) with all provisions of the cities of Xxxxxx City, Redwood Shores and San MateoLease.
Appears in 1 contract
Samples: Lease Agreement (Pw Eagle Inc)
Determination of Fair Market Value. Upon the commencement Fair market value shall be determined by a nationally recognized investment banker selected by mutual agreement of the extension term, Partners within 10 days (the Base Rent shall be an annual amount equal to ninety-five percent (95%"Mutual Selection Period") of the fair market rental value of Determination Notice. In the Premises in its then current condition, use and configuration, and without regard to any other possible condition, use, configuration or land use entitlements or restrictions with respect to event that an investment banker is not selected by the Premises, determined as follows (“Fair Market Rent”):
(a) Landlord shall deliver to Tenant written notice of Landlord’s determination of fair market rental value Partners within thirty (30) days after Landlord receives notice from Tenant that Tenant has exercised the Extension Option.
(b) If Tenant disputes Landlord’s determination of the fair market rental value as contained in Landlord’s notice, Tenant shall notify Landlord in writing within twenty (20) days of its receipt of Landlord’s determination, which notice shall set forth Tenant’s determination of the fair market rental value. Should Tenant timely notify Landlord as aforesaid, Landlord and Tenant shall attempt to resolve their differences within twenty (20) days following Landlord’s receipt of Tenant’s notice. Should Tenant fail to timely notify Landlord as aforesaidMutual Selection Period, then ninety-five percent each Partner shall select an investment banker from the list of three investment bankers (95%or their successors) of Landlord’s determination of fair market rental value attached hereto as contained in Landlord’s notice Exhibit A. Each Partner shall constitute the Fair Market Rent.
(c) Should Tenant timely notify Landlord as aforesaid and if Landlord and Tenant cannot agree on fair market rental value during such ten (10) day period, Landlord and Tenant shall each appoint a disinterested commercial real estate broker specializing in the leasing of similarly situated real property in San Mateo County for at least ten (10) years and give notice of such appointment simultaneously deliver to the other within ten (10) days Partner such Partner's selection of an investment banker on the fifth day after the preceding ten (10) day periodtermination of the Mutual Selection Period. If either Landlord or Tenant both Partners select the same investment banker, the investment banker so selected shall fail timely to appoint serve as the investment banker for the purpose of determining fair market value. If each Partner selects a brokerdifferent investment banker, then the single broker appointed by one party investment banker listed on Exhibit A, which neither of the Partners selected, shall proceed serve as the investment banker to make the determination of determine fair market rental value. Such broker(sThe selected investment banker shall (i) shall, within thirty (30) days after value the appointment Interest of the last Change Partner at its fair private market value by valuing the Partnership in the context of them an auction process and then applying to be appointed, complete their written determinations of fair market rental such value and furnish the same to Landlord and Tenant. Each party shall pay percentage interest represented by the fees and costs Interest of the broker appointed by itChange Partner, taking into account such other factors as the investment banker deems relevant to such analysis; and (ii) if Donnelley is the Change Partner, value the Donnelley Revenue Participation Interests in the context of an auction process, taking into account such other factors as the investment banker deems relevant to such process. If the valuations vary by 5% or less of the lower value, the fair market rental value The valuation shall be the average completed within 60 days of the two valuations.
(d) If the valuations vary by more than 5% of the lower value, the two brokers shall, within ten (10) days after submission of the last appraisal report, appoint a third disinterested broker satisfying the same qualifications. If the two brokers shall be unable to agree in a timely manner on the selection of the third broker, then either broker, on behalf of both, may request appointment of such third disinterested broker by the presiding judge of the Superior Court of the county investment banker and promptly communicated in which the Premises are located or through the American Arbitration Association process. Such third broker shall, within thirty (30) days after appointment, select one of the two valuations submitted by the first two brokers as such third broker’s determination of fair market rental value, and shall submit such decision writing to Landlord and Tenanteach Partner. The fair market rental value so determined shall be final and binding on the Partners and the Option Partner must, within 10 days of the Premises as determined by delivery of the third broker investment banker's valuation, indicate whether it will exercise the Purchase Option. If the Option Partner elects to exercise the Purchase Option, the Option Partner must consummate the purchase of the Change Partner's Interest and, if applicable, Donnelley's Revenue Participation Interests, on the terms set forth in Section 13.2 within 10 days after any requisite regulatory approval has been obtained. If the Purchase Option is exercised, the Partners agree that all fees of such investment banker for making such evaluation shall be controlling. All fees and costs incurred in connection with the determination of fair market rental value by the third broker shall be paid borne one-half by Landlord and one-half by Tenanteach Partner.
(e) All valuations done pursuant to this Section 25.2 shall be based on leases of similar office, research & development, and lab flex buildings in the cities of Xxxxxx City, Redwood Shores and San Mateo.
Appears in 1 contract
Determination of Fair Market Value. Upon the commencement Within fifteen (15) days of the extension termdate Tenant gives notice to Landlord of Tenant’s election to have the fair market value and the Premises determined, Tenant shall give Landlord written notice of an appraiser and Landlord shall give Tenant written notice of an appraiser. Within thirty (30) days after the Base Rent Election Date the two appraisers shall select a third appraiser. All appraisers shall be independent from the Landlord and Tenant and have no conflict of interest, shall have MAI certification and at least ten (10) years experience appraising real estate including appraising at least five (5) restaurants. Each appraiser shall complete and deliver to Tenant and Landlord an annual amount equal to ninety-five appraisal of the Premises in compliance with MAI standards within 120 days of the Election Date. Any appraisal that is ten percent (9510%) more or less then the average of the appraisals shall not be used. The average of the remaining appraisals shall be deemed the fair market value of the Premises. The appraisers shall give each party copies of the appraisals and final written notice of the fair market rental value value. The decision shall be final and not subject to appeal in the absence of fraud or other failure to follow the requirements set forth herein. The parties shall each pay one-half the cost of the Premises in its then current conditionappraisers. Such option shall be exercised, use and configurationif at all, and without regard to any other possible condition, use, configuration or land use entitlements or restrictions with respect to the Premises, determined as follows (“Fair Market Rent”):
(a) Landlord shall deliver to by Tenant giving written notice of thereof to Landlord’s determination of fair market rental value , said notice period to be within thirty (30) days after Landlord receives notice from Tenant that Tenant has exercised the Extension Option.
(b) If Tenant disputes Landlord’s determination having received a Final Written Notice of the fair market rental value as contained described above. Landlord shall provide Tenant with a warranty deed conveying marketable title to Tenant and with a current title insurance commitment to insure marketable title to the Premises. The title insurance company may use the sales proceeds to pay such encumbrances and costs as are necessary to insure marketable title in Landlordthe name of Tenant subject to Tenant’s notice, Tenant shall notify Landlord in writing mortgage financing. Subsequent closing of the sale and purchase must occur within twenty ninety (2090) days of its receipt of Landlord’s determination, which notice shall set forth Tenant’s determination of from the fair market rental value. Should Tenant timely notify Landlord as aforesaid, Landlord and Tenant shall attempt to resolve their differences within twenty (20) days following Landlord’s receipt of Tenant’s notice. Should Tenant fail to timely notify Landlord as aforesaid, then ninety-five percent (95%) of Landlord’s determination of fair market rental value as contained in Landlord’s notice shall constitute date the Fair Market Rentoption is exercised.
(c) Should Tenant timely notify Landlord as aforesaid and if Landlord and Tenant cannot agree on fair market rental value during such ten (10) day period, Landlord and Tenant shall each appoint a disinterested commercial real estate broker specializing in the leasing of similarly situated real property in San Mateo County for at least ten (10) years and give notice of such appointment to the other within ten (10) days after the preceding ten (10) day period. If either Landlord or Tenant shall fail timely to appoint a broker, then the single broker appointed by one party shall proceed to make the determination of fair market rental value. Such broker(s) shall, within thirty (30) days after the appointment of the last of them to be appointed, complete their written determinations of fair market rental value and furnish the same to Landlord and Tenant. Each party shall pay the fees and costs of the broker appointed by it. If the valuations vary by 5% or less of the lower value, the fair market rental value shall be the average of the two valuations.
(d) If the valuations vary by more than 5% of the lower value, the two brokers shall, within ten (10) days after submission of the last appraisal report, appoint a third disinterested broker satisfying the same qualifications. If the two brokers shall be unable to agree in a timely manner on the selection of the third broker, then either broker, on behalf of both, may request appointment of such third disinterested broker by the presiding judge of the Superior Court of the county in which the Premises are located or through the American Arbitration Association process. Such third broker shall, within thirty (30) days after appointment, select one of the two valuations submitted by the first two brokers as such third broker’s determination of fair market rental value, and shall submit such decision to Landlord and Tenant. The fair market rental value of the Premises as determined by the third broker shall be controlling. All fees and costs incurred in connection with the determination of fair market rental value by the third broker shall be paid one-half by Landlord and one-half by Tenant.
(e) All valuations done pursuant to this Section 25.2 shall be based on leases of similar office, research & development, and lab flex buildings in the cities of Xxxxxx City, Redwood Shores and San Mateo.
Appears in 1 contract
Samples: Development Agreement (Granite City Food & Brewery LTD)
Determination of Fair Market Value. Upon If Landlord and Tenant do not agree on the commencement of the extension term, the Base Rent shall be an annual amount equal to ninety-five percent (95%) of the fair market rental value Fair Market Rental Rate of the Premises in its then current condition, use and configuration, and without regard to any other possible condition, use, configuration or land use entitlements or restrictions with respect by the date seven (7) months prior to the Premisesfirst day of the Option Term, such Fair Market Rental Rate shall be determined as follows follows: Landlord and Tenant each shall appoint one (“Fair Market Rent”):
1) appraiser within fifteen (a) Landlord shall deliver to Tenant written notice of Landlord’s determination of fair market rental value within thirty (3015) days after Landlord receives notice from Tenant that Tenant has exercised the Extension Option.
(b) If Tenant disputes Landlord’s determination of the fair market rental value as contained in Landlord’s notice, Tenant shall notify Landlord in writing within twenty (20) days of its receipt of Landlord’s determination, which notice shall set forth Tenant’s determination of the fair market rental value. Should Tenant timely notify Landlord as aforesaid, Landlord and Tenant shall attempt to resolve their differences within twenty (20) days following Landlord’s receipt of Tenant’s notice. Should Tenant fail to timely notify Landlord as aforesaid, then ninety-five percent (95%) of Landlord’s determination of fair market rental value as contained in Landlord’s notice shall constitute the Fair Market Rent.
(c) Should Tenant timely notify Landlord as aforesaid and if Landlord and Tenant cannot agree on fair market rental value during such ten (10) day period, Landlord and Tenant shall each appoint a disinterested commercial real estate broker specializing in the leasing of similarly situated real property in San Mateo County for at least ten (10) years and give notice of such appointment to the other within ten (10) days after the preceding ten (10) day perioddate. If either Landlord or Tenant shall fail timely fails to appoint a brokerits appraiser within such period of fifteen (15) days, then the single broker such appraiser shall be appointed by the following process: Landlord shall make application to the president of the Real Estate Board of Metropolitan St. Louis to name three qualified appraisers for consideration; then Landlord and Tenant will each strike one party of those appraisers, with the appraiser that was not struck becoming the previously unnamed appraiser. Each such appraiser shall proceed appraise such Fair Market Rental Rate of the Premises and complete and submit his written appraisal setting forth the appraised value to make the determination of fair market rental value. Such broker(s) shall, Landlord and Tenant within thirty (30) days after the appointment of the last of them to be appointed, complete their written determinations of fair market rental value and furnish the same to Landlord and Tenant. Each party shall pay the fees and costs of the broker appointed by itboth such appraisers. If the valuations vary by 5% or less higher appraised value in such two (2) appraisals is not more than one hundred ten percent (110%) of the lower appraised value, such Fair Market Rental Rate of the fair market rental value Premises shall be the average of the two valuations.
(d2) appraised values. If the valuations vary by higher appraised value is more than 5% one hundred ten percent(110%) of the lower appraised value, Landlord and Tenant shall agree upon and appoint a neutral third appraiser within fifteen (15) days after both of the first two (2) appraisals have been submitted to Landlord and Tenant. If Landlord and Tenant do not agree upon and fail to appoint such neutral third appraiser within such period of fifteen (15) days, such neutral third appraiser shall be appointed by the following process: Landlord shall make application to the president of the Real Estate Board of Metropolitan St. Louis to name three qualified appraisers for consideration; then Landlord and Tenant will each strike one of those appraisers, with the appraiser that was not struck becoming the neutral third appraiser. The neutral third appraiser shall appraise such Fair Market Rental Rate of the Premises and complete and submit his written appraisal setting forth the appraised value to Landlord and Tenant within thirty (30) days after his appointment. Such Fair Market Rental Rate of the Premises shall be the average of the two brokers shall(2) appraised values in such three (3) appraisals that are closest to each other. If the middle appraised rental is the average of the other two, the then middle rental shall be such Fair Market Rental Rate. The Fair Market Rental Rate of the Premises, determined in accordance with this Section, shall be conclusive and binding upon Landlord and Tenant. All appraisers so appointed, shall be members of the American Institute of Real Estate Appraisers of the National Association of Realtors or real estate professionals qualified by appropriate training or experience and having at least ten (10) years of experience dealing with commercial real estate. The appraisers shall have no power or authority to amend or modify this Lease in any respect and their jurisdiction is limited accordingly. Landlord and Tenant each shall pay the fee and expenses charged by its appraiser plus one-half of the fee and expenses charged by the neutral third appraiser. If the Fair Market Rental Rate of the Premises has not been determined in accordance with this Section by the first day of the Option Term, Tenant shall pay as Base Rent the average of the amount of Base Rent proposed by Landlord and the amount of Base Rent proposed by Tenant, but not less than the monthly Base Rent for the month immediately preceding the Option Term, effective on the first day of the Option Term and Tenant shall continue to pay such average until the Fair Market Rental Rate of the Premises has been determined, at which time any adjustment in the Base Rent resulting therefrom shall be made retroactively within ten (10) days after submission of the last appraisal report, appoint a third disinterested broker satisfying the same qualifications. If the two brokers shall be unable to agree in a timely manner on the selection of the third broker, then either broker, on behalf of both, may request appointment of such third disinterested broker by the presiding judge of the Superior Court of the county in which the Premises are located or through the American Arbitration Association process. Such third broker shall, within thirty (30) days after appointment, select one of the two valuations submitted by the first two brokers as such third broker’s determination of fair market rental value, and shall submit such decision to Landlord and Tenant. The fair market rental value of the Premises as determined by the third broker shall be controlling. All fees and costs incurred in connection with the determination of fair market rental value by the third broker shall be paid one-half by Landlord and one-half by Tenantdetermination.
(e) All valuations done pursuant to this Section 25.2 shall be based on leases of similar office, research & development, and lab flex buildings in the cities of Xxxxxx City, Redwood Shores and San Mateo.
Appears in 1 contract
Samples: Sublease (Build a Bear Workshop Inc)
Determination of Fair Market Value. Upon If the commencement of the extension term, the Base Rent shall be an annual amount equal FRANCHISEE fails to ninety-five percent (95%) of the fair market rental value of the Premises in its then current condition, use and configuration, and without regard to any other possible condition, use, configuration or land use entitlements or restrictions with respect to the Premises, determined as follows (“Fair Market Rent”):
(a) Landlord shall deliver to Tenant give WCH written notice of Landlord’s determination of fair market rental value within thirty (30) days after Landlord receives notice from Tenant that Tenant has exercised the Extension Option.
(b) If Tenant disputes Landlord’s determination asking price of the fair market rental value as contained in Landlord’s noticeBusiness Assets, Tenant shall notify Landlord in writing within twenty (20) days of its receipt of Landlord’s determination, which notice shall set forth Tenant’s determination of or if WCH and the fair market rental value. Should Tenant timely notify Landlord as aforesaid, Landlord and Tenant shall attempt to resolve their differences within twenty (20) days following Landlord’s receipt of Tenant’s notice. Should Tenant fail to timely notify Landlord as aforesaid, then ninety-five percent (95%) of Landlord’s determination of fair market rental value as contained in Landlord’s notice shall constitute the Fair Market Rent.
(c) Should Tenant timely notify Landlord as aforesaid and if Landlord and Tenant FRANCHISEE cannot agree on the price of the Business Assets, then either party will have the right to demand that the price of the Business Assets be determined by arbitration in accordance with the Rules and Regulations of the American Arbitration Association. The arbitration hearing will be held as soon as possible, but in no event later than seven (7) business days from the date arbitration is demanded by either party. The Arbitrator will determine the fair market value of the Business Assets. The Arbitrator will not consider any value for goodwill associated with the names We Care Hair(R) or We Care Hair(R) or for going concern value in determining the fair market value of the Business Assets since the right of purchase granted to WCH pursuant to this provision applies only after this Agreement has expired or has been terminated, or the FRANCHISEE has ceased doing business. Furthermore, the Arbitrator will not consider any value for the Lease for the Franchised Location if WCH agrees to assume the Lease and pay the rental and operating costs. If the Arbitrator is unable to determine the fair market value during such ten of any of the Business Assets, then they will be valued at book value (10cost less depreciation). WCH will have the right, but not the obligation, to purchase any or all of the Business Assets from the FRANCHISEE for cash within fifteen (15) day period, Landlord and Tenant shall each appoint a disinterested commercial real estate broker specializing in the leasing of similarly situated real property in San Mateo County for at least ten (10) years and give notice of such appointment to the other within ten (10) business days after the preceding ten (10) day period. If either Landlord or Tenant shall fail timely to appoint a broker, then the single broker appointed by one party shall proceed to make the determination of fair market rental value. Such broker(s) shall, within thirty (30) days after the appointment of the last of them to be appointed, complete their written determinations of fair market rental value and furnish the same to Landlord and Tenant. Each party shall pay the fees and costs of the broker appointed by it. If the valuations vary by 5% or less of the lower value, the fair market rental value shall be the average of the two valuations.
(d) If the valuations vary by more than 5% of the lower value, the two brokers shall, within ten (10) days after submission of the last appraisal report, appoint a third disinterested broker satisfying the same qualifications. If the two brokers shall be unable to agree in a timely manner on the selection of the third broker, then either broker, on behalf of both, may request appointment of such third disinterested broker by the presiding judge of the Superior Court of the county in which the Premises are located or through the American Arbitration Association process. Such third broker shall, within thirty (30) days after appointment, select one of the two valuations submitted by the first two brokers as such third broker’s determination of fair market rental value, and shall submit such decision to Landlord and Tenant. The fair market rental value of the Premises as determined Business Assets has been established by the third broker shall be controllingArbitrator in writing. All fees Nothing in this Article will prohibit WCH from enforcing the terms and costs incurred conditions of this Agreement, including the covenants not to compete contained in connection with the determination of fair market rental value by the third broker shall be paid one-half by Landlord and one-half by TenantArticle 12.
(e) All valuations done pursuant to this Section 25.2 shall be based on leases of similar office, research & development, and lab flex buildings in the cities of Xxxxxx City, Redwood Shores and San Mateo.
Appears in 1 contract
Samples: Franchise Agreement (Barbers Hairstyling for Men & Women Inc)
Determination of Fair Market Value. Upon In the commencement of the extension term, the Base Rent shall be an annual amount equal to ninety-five percent (95%) of the fair market rental value of the Premises in its then current condition, use and configuration, and without regard to any other possible condition, use, configuration or land use entitlements or restrictions with respect to the Premises, determined as follows (“Fair Market Rent”):
(a) Landlord shall deliver to Tenant written notice of Landlord’s determination of fair market rental value within thirty (30) days after Landlord receives notice from Tenant event that Tenant has exercised the Extension Option.
(b) If Tenant disputes Landlord’s a determination of the fair market rental value of Non-Cash Consideration is required pursuant to the Right of First Refusal or the Charter Right of First Refusal, the Selling Stockholder or Charter, as contained appropriate, shall specify in Landlord’s notice, Tenant shall notify Landlord in writing within twenty (20) days of the applicable Offer Notice its receipt of Landlord’s determination, which notice shall set forth Tenant’s determination good faith estimate of the fair market rental value. Should Tenant timely notify Landlord as aforesaid, Landlord and Tenant shall attempt to resolve their differences within twenty (20) days following Landlord’s receipt value of Tenant’s notice. Should Tenant fail to timely notify Landlord as aforesaid, then ninetyany Non-five percent (95%) of Landlord’s determination of fair market rental value as contained in Landlord’s notice shall constitute the Fair Market Rent.
(c) Should Tenant timely notify Landlord as aforesaid and if Landlord and Tenant cannot agree on fair market rental value during such ten (10) day period, Landlord and Tenant shall each appoint a disinterested commercial real estate broker specializing in the leasing of similarly situated real property in San Mateo County for at least ten (10) years and give notice of such appointment to the other within ten (10) days after the preceding ten (10) day period. If either Landlord or Tenant shall fail timely to appoint a broker, then the single broker appointed by one party shall proceed to make the determination of fair market rental value. Such broker(s) shall, within thirty (30) days after the appointment of the last of them Cash Consideration to be appointed, complete their written determinations of fair market rental value and furnish the same to Landlord and Tenant. Each party shall pay the fees and costs of the broker appointed by it. If the valuations vary by 5% or less of the lower value, the fair market rental value shall be the average of the two valuations.
(d) If the valuations vary by more than 5% of the lower value, the two brokers shall, within ten (10) days after submission of the last appraisal report, appoint a third disinterested broker satisfying the same qualifications. If the two brokers shall be unable to agree in a timely manner on the selection of the third broker, then either broker, on behalf of both, may request appointment of such third disinterested broker by the presiding judge of the Superior Court of the county in which the Premises are located or through the American Arbitration Association process. Such third broker shall, within thirty (30) days after appointment, select one of the two valuations submitted by the first two brokers as such third broker’s determination of fair market rental value, and shall submit such decision to Landlord and Tenant. The fair market rental value of the Premises as determined by the third broker shall be controlling. All fees and costs incurred paid in connection with the determination proposed transfer. If a majority of the disinterested Stockholders agrees with the estimated fair market rental value by of such Non-Cash Consideration, the third broker estimate shall be paid deemed to be the Fair Market Value thereof for purposes of this Agreement. If a majority of disinterested Stockholders does not agree with the estimated fair market value, the disinterested Stockholders shall, within 10 Business Days of receipt of the Offer Notice, deliver to the Selling Stockholder or Charter, as appropriate, written notice of its disagreement and shall, for a period of 10 Business Days after delivering such notice, negotiate with the Selling Stockholder or Charter, as appropriate, for the purpose of determining the fair market value of the Non-Cash Consideration that is acceptable to a majority of disinterested Stockholders and the Selling Stockholder or Charter, as appropriate. If the disinterested Stockholders and the Selling Stockholder or Charter, as appropriate, are unable to agree on a fair market value during the aforementioned negotiation period, the disinterested Stockholders and the Selling Stockholder or Charter, as appropriate, shall appoint a mutually agreeable appraiser of recognized standing with respect to the nature of the property constituting the Non-Cash Consideration to complete an appraisal of the property constituting the Non-Cash Consideration. Such appraiser shall render a binding and non-appealable appraisal of the Fair Market Value of the property constituting the Non-Cash Consideration within 10 Business Days of such appraiser's appointment or, if it is not reasonably possible to complete such appraisal in such time period, such longer period as shall be reasonably necessary to complete such appraisal (not to exceed 30 Business Days). The Corporation and the Selling Stockholder or Charter, as appropriate, each shall bear one-half by Landlord and one-half by Tenantof the costs of such appraisal.
(e) All valuations done pursuant to this Section 25.2 shall be based on leases of similar office, research & development, and lab flex buildings in the cities of Xxxxxx City, Redwood Shores and San Mateo.
Appears in 1 contract
Samples: Stockholders' Agreement (Magellan Health Services Inc)
Determination of Fair Market Value. Upon the commencement of the extension term, the Base Rent shall be an annual amount equal to ninety-five percent (95%) of the fair market rental value of the Premises in its then current condition, use and configuration, and without regard to any other possible condition, use, configuration or land use entitlements or restrictions with respect to the Premises, determined as follows (“Fair Market Rent”):
(a) Landlord shall deliver If all or any part of the Purchase Price specified in the Transfer Notice is a non-cash offer, then the Selling Shareholder and the Company may mutually agree as to Tenant written notice the Fair Market Value of Landlord’s determination of fair market rental the non-cash offer. If the Selling Shareholder and the Company are unable to agree on such value within thirty (30) days after Landlord receives notice from Tenant that Tenant has exercised the Extension OptionCompany and the Remaining Shareholders receive the Transfer -12- 13 Notice, then in such event, Fair Market Value shall be established as hereinafter provided by two independent qualified appraisers knowledgeable in the newspaper publishing industry, one to be appointed by the Selling Shareholder and the other to be appointed by majority vote of the Remaining Shareholders (irrespective of whether the Company shall exercise the option granted to it under Section 5.03 of this Agreement).
(b) If Tenant disputes Landlord’s determination of the fair market rental value as contained in Landlord’s notice, Tenant The two independent appraisers shall notify Landlord in writing within twenty (20) days of its receipt of Landlord’s determination, which notice shall set forth Tenant’s determination of the fair market rental value. Should Tenant timely notify Landlord as aforesaid, Landlord and Tenant shall attempt to resolve their differences within twenty (20) days following Landlord’s receipt of Tenant’s notice. Should Tenant fail to timely notify Landlord as aforesaid, then ninety-five percent (95%) of Landlord’s determination of fair market rental value as contained in Landlord’s notice shall constitute the Fair Market Rent.
(c) Should Tenant timely notify Landlord as aforesaid and if Landlord and Tenant cannot agree on fair market rental value during such ten (10) day period, Landlord and Tenant shall each appoint a disinterested commercial real estate broker specializing in the leasing of similarly situated real property in San Mateo County for at least ten (10) years and give notice of such appointment to the other within ten (10) days after the preceding ten (10) day period. If either Landlord or Tenant shall fail timely to appoint a broker, then the single broker be appointed by one party shall proceed to make the determination of fair market rental value. Such broker(s) shall, within thirty (30) days after receipt by the appointment Company and Remaining Shareholders of the last of them Transfer Notice. If either the Selling Shareholder or the Remaining Shareholders fails to appoint an appraiser within this time period, then its right to do so shall lapse, and the appraisal made by the one independent appraiser who is timely appointed shall be appointedthe Fair Market Value. If two appraisals are made, complete their written determinations of fair market rental value and furnish if the same to Landlord and Tenant. Each party shall pay the fees and costs higher appraisal does not exceed 110% of the broker appointed by it. If the valuations vary by 5% or less of the lower valuelower, the fair market rental value shall Fair Market Value will be the average of the two valuations.
(d) If the valuations vary by more than 5% of the lower value, the two brokers shall, within ten (10) days after submission of the last appraisal report, appoint a third disinterested broker satisfying the same qualificationstwo. If the two brokers shall appraisals are further apart, a third appraiser will be unable to agree in a timely manner on the selection of the third broker, then either broker, on behalf of both, may request appointment of such third disinterested broker by the presiding judge of the Superior Court of the county in which the Premises are located or through the American Arbitration Association process. Such third broker shall, selected within thirty (30) days after appointment, select one of the two valuations submitted by the first two brokers as such third broker’s determination of fair market rental valueappraisers, and the Fair Market Value will be deemed to be the average of the third appraisal and the one of the first two appraisals which is closer to the third. All appraisals shall submit be made within thirty (30) days of appointment of an appraiser and written notice of the results of such decision appraisal shall be given to Landlord and Tenantthe parties within such time. The fair market rental value Fair Market Value of MNG will be determined in its entirety as a going concern, with the Selling Shareholder to receive a proportionate part of the Premises as determined total value based on the number of shares being sold by the third broker it. In making any appraisal hereunder all debts and liabilities shall be controllingtaken into account and there shall be no discount made on account of the Selling Shareholder's interest being a minority interest, and no premium imposed on account of the Selling Shareholder's interest being a majority interest. All fees The Selling Shareholder shall pay the fee of the appraiser selected by it, and costs incurred the Remaining Shareholders (irrespective of whether the Company shall exercise the option granted to it under Section 5.03 of this Agreement) shall pay the fee of the appraiser selected by them (in connection proportion to their respective ownership interests in the Company) with the determination fee of fair market rental value by any third appraiser to be divided equally among the third broker shall be paid one-half by Landlord Selling Shareholder and one-half by Tenantthe Remaining Shareholders.
(e) All valuations done pursuant to this Section 25.2 shall be based on leases of similar office, research & development, and lab flex buildings in the cities of Xxxxxx City, Redwood Shores and San Mateo.
Appears in 1 contract
Samples: Shareholder Agreement (Garden State Newspapers Inc)
Determination of Fair Market Value. Upon the commencement The Fair Market Value of WAC shall be ---------------------------------- determined by an independent appraiser who is a member of the extension term, the Base Rent shall be an annual amount equal to ninety-five percent (95%) American Society of the fair market rental value of the Premises in its then current condition, use Appraisers and configurationattains ASA status, and without regard is mutually satisfactory to any other possible condition, use, configuration or land use entitlements or restrictions with respect to the Premises, determined as follows (“Fair Market Rent”):
(a) Landlord shall deliver to Tenant written notice of Landlord’s determination of fair market rental value within thirty (30) days after Landlord receives notice from Tenant that Tenant has exercised the Extension Option.
(b) BCG and Seller. If Tenant disputes Landlord’s determination of the fair market rental value as contained in Landlord’s notice, Tenant shall notify Landlord in writing within twenty (20) days of its receipt of Landlord’s determination, which notice shall set forth Tenant’s determination of the fair market rental value. Should Tenant timely notify Landlord as aforesaid, Landlord BCG and Tenant shall attempt to resolve their differences within twenty (20) days following Landlord’s receipt of Tenant’s notice. Should Tenant fail to timely notify Landlord as aforesaid, then ninety-five percent (95%) of Landlord’s determination of fair market rental value as contained in Landlord’s notice shall constitute the Fair Market Rent.
(c) Should Tenant timely notify Landlord as aforesaid and if Landlord and Tenant Seller cannot agree on fair market rental value during such ten (10) day perioda single appraiser, Landlord BCG shall appoint an appraiser and Tenant Seller shall each appoint an appraiser and the two selected appraisers shall appoint a disinterested commercial real estate broker specializing third appraiser. In the event a third appraiser is used, the third appraiser shall be solely responsible for determining the Fair Market Value of WAC based on a review of BCG's and Seller's appraiser's valuation, and such other information as the third appraiser deems appropriate. The appraisal shall be completed prior to the date specified for closing in the leasing Exercise Notice (as defined below), and such valuation shall be as of similarly situated real property in San Mateo County for at least ten (10) years and give notice of such appointment to the other within ten (10) days after third calendar day before the preceding ten (10) day periodclosing. If either Landlord BCG or Tenant the Seller shall fail timely to agree upon or appoint a brokertheir respective appraiser within 10 days of the Exercise Date (as defined below), then the single broker appraiser appointed by one the other party shall proceed to make conduct the appraisal and that appraisers' determination of fair market rental valueshall be final and binding on BCG and Seller. Such broker(s) shall, within thirty (30) days after BCG shall bear the appointment of the last of them to be appointed, complete their written determinations of fair market rental value and furnish the same to Landlord and Tenant. Each party shall pay the fees and costs of the broker appointed by it. If the valuations vary by 5% or less of the lower valueits own appraiser, the fair market rental value Seller shall be bear the average costs of its appraiser, and the two valuations.
(d) If the valuations vary by more than 5% of the lower value, the two brokers shall, within ten (10) days after submission of the last appraisal report, appoint a third disinterested broker satisfying the same qualifications. If the two brokers shall be unable to agree in a timely manner on the selection cost of the third broker, then either broker, on behalf of both, may request appointment of such third disinterested broker by the presiding judge of the Superior Court of the county in which the Premises are located or through the American Arbitration Association process. Such third broker shall, within thirty (30) days after appointment, select one of the two valuations submitted by the first two brokers as such third broker’s determination of fair market rental value, and shall submit such decision to Landlord and Tenant. The fair market rental value of the Premises as determined by the third broker appraiser shall be controlling. All fees and costs incurred in connection with the determination of fair market rental value by the third broker shall be paid shared one-half by Landlord BCG and one-half by Tenant.
(e) All valuations done pursuant to this Section 25.2 Seller. In the absence of fraud or bad faith, the Fair Market Value determination for WAC by the one appraiser or third appraiser, as the case may be, shall be based final and binding on leases BCG and Seller. In assessing the Fair Market Value, the appraisers shall review the costs, expenses and other charges assessed to or paid by WAC under the terms of the Distribution Agreement to insure that such costs, expenses and charges were fair in comparison to similar officecharges normally assessed against unrelated and independent third parties and if the charges assessed were not fair, research & developmentthen the appraiser shall make pro forma adjustments. In addition, the appraisers shall assess all transactions between WAC and affiliates of BCG to ensure that they were on terms comparable to those customary in the industry for transactions between unrelated third parties, and lab flex buildings in to the cities extent of Xxxxxx Cityany disparate treatment between BCG's affiliates and WAC, Redwood Shores and San Mateothe appraiser shall make pro forma adjustments.
Appears in 1 contract
Determination of Fair Market Value. Upon the commencement of the extension term, the Base Rent shall be an annual amount equal to ninety-five percent (95%) of the fair market rental value of the Premises in its then current condition, use and configuration, and without regard to any other possible condition, use, configuration or land use entitlements or restrictions with respect to the Premises, determined as follows (“Fair Market Rent”):
(a) Landlord shall deliver to Tenant written notice of Landlord’s Whenever a determination of fair market rental value Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the “Applicable Initial Date”) on which Tenant provides Landlord receives notice from Tenant that Tenant has exercised with an Option Notice to purchase the Extension OptionPremises pursuant to Paragraph 29.
(bii) If Tenant disputes Landlord’s determination of the fair market rental value as contained in Landlord’s noticeparties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifty (50) days after the Applicable Initial Date select an appraiser and notify Landlord in writing within twenty (20) days of its receipt of Landlord’s determination, which notice shall set forth Tenant’s determination of the fair market rental valuename, address and qualifications of such appraiser. Should Tenant timely notify Landlord as aforesaid, Landlord and Tenant shall attempt to resolve their differences within Within twenty (20) days following Landlord’s receipt of Tenant’s noticenotice of the appraiser selected by Tenant, Landlord shall select an appraiser and notify Tenant of the name, address and qualifications of such appraiser. Should Tenant fail Such two appraisers shall endeavor to timely notify Landlord as aforesaid, then ninety-five percent (95%) of Landlord’s determination of fair market rental value as contained in Landlord’s notice shall constitute the agree upon Fair Market RentValue based on a written appraisal made by each of them as of the Relevant Date (and given to Landlord by Tenant). If such two appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(ciii) Should Tenant timely notify Landlord as aforesaid and if If such two appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of an appraiser by Landlord, then such appraisers shall advise Landlord and Tenant cannot agree on fair market rental value during such ten (10) day period, of their respective determination of Fair Market Value and shall select a third appraiser to make the determination of Fair Market Value. The selection of the third appraiser shall be binding and conclusive upon Landlord and Tenant Tenant.
(iv) If such two appraisers shall each appoint be unable to agree upon the designation of a disinterested commercial real estate broker specializing in the leasing of similarly situated real property in San Mateo County for at least ten (10) years and give notice of such appointment to the other third appraiser within ten (10) days after the preceding ten expiration of the twenty (1020) day period. If either Landlord period referred to in clause (iii) above, or Tenant shall fail timely to appoint if such third appraiser does not make a broker, then the single broker appointed by one party shall proceed to make the determination of fair market rental value. Such broker(s) shall, Fair Market Value within thirty twenty (3020) days after his selection, then such third appraiser or a substituted third appraiser, as applicable, shall, at the appointment request of either party hereto (with respect to the last of them to other party), be appointed, complete their written determinations of fair market rental value and furnish the same to Landlord and Tenant. Each party shall pay the fees and costs of the broker appointed by itthe American Arbitration Association in Minneapolis, MN. The determination of Fair Market Value made by the third appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(v) If the valuations vary by 5% or less of the lower valuea third appraiser is selected, the fair market rental value Fair Market Value shall be the average of the two valuationsdetermination of Fair Market Value made by the third appraiser and the determination of Fair Market Value made by the appraiser (selected pursuant to Paragraph 31(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third appraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(dvi) If All appraisers selected or appointed pursuant to this Paragraph 31(a) shall (A) be independent qualified MAI appraisers (B) have no right, power or authority to alter or modify the valuations vary by more than 5% provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth above, and (D) be registered in the State if the State provides for or requires such registration.
(vii) The Cost of the lower value, the two brokers shall, within ten (10procedure described in this Paragraph 31(a) days after submission of the last appraisal report, appoint a third disinterested broker satisfying the same qualifications. If the two brokers shall be unable to agree in a timely manner on the selection of the third broker, then either broker, on behalf of both, may request appointment of such third disinterested broker by the presiding judge of the Superior Court of the county in which the Premises are located or through the American Arbitration Association process. Such third broker shall, within thirty (30) days after appointment, select one of the two valuations submitted by the first two brokers as such third broker’s determination of fair market rental value, and shall submit such decision to Landlord and Tenant. The fair market rental value of the Premises as determined by the third broker shall be controlling. All fees and costs incurred in connection with the determination of fair market rental value by the third broker above shall be paid one-half by Landlord Tenant and one-half by TenantLandlord.
(eb) All valuations done If, by virtue of any delay, Fair Market Value is not determined by the expiration or termination of the then current Term, then the date on which the Term would otherwise expire or terminate shall be extended with respect to the Premises, to the date specified for termination in the particular provision of this Lease pursuant to this Section 25.2 which the determination of Fair Market Value is being made. In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (a) the present value of the Rent for the remaining Term provided herein (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on leases the creditworthiness of similar officeTenant and (b) the present value of the Premises as of the end of such Term. The appraisers shall further assume that no default then exists under the Lease, research & development, that Tenant has complied (and lab flex buildings in will comply) with all provisions of the cities of Xxxxxx City, Redwood Shores and San MateoLease.
Appears in 1 contract
Samples: Lease Agreement (Pw Eagle Inc)
Determination of Fair Market Value. Upon the commencement of the extension term, the Base Rent shall be an annual amount equal to ninety-five percent (95%) of the fair market rental value of the Premises in its then current condition, use and configuration, and without regard to any other possible condition, use, configuration or land use entitlements or restrictions with respect to the Premises, determined as follows (“Fair Market Rent”):
(a) Landlord Whenever a determination of Fair Market Value is required under this Agreement (including as part of a determination of Agreed Value), the Board shall deliver endeavor in good faith to Tenant determine the Fair Market Value and shall notify the Member who (or whose Affiliate) owns or to whom is being distributed the interest or property being valued of the Board’s determination The Interested Party may dispute the Board’s determination of Fair Market Value by giving written notice of Landlordobjection to the Board within ten (10) Business Days of written notice of the Board’s determination.
(b) The Interested Party may elect to have Fair Market Value determined by appraisal if (i) the Board is unable to reach a determination of fair market rental value Fair Market Value within thirty (30) days Days after Landlord receives notice from Tenant that Tenant has exercised the Extension Option.
obligation to determine Fair Market Value arises or (bii) If Tenant disputes Landlord’s determination the Board and the Interested Party are unable to reach an agreement on Fair Market Value within thirty (30) Days after the giving of the fair market rental value as contained notice of objection by the Interested Party in Landlord’s noticeaccordance with Section 7.9(a). If the Interested Party gives notice of election of appraisal within ten (10) Days after the applicable thirty (30) Day period, Tenant then the appraisal shall notify Landlord be conducted by an independent valuation firm with at least fifteen (15) years experience in writing within twenty undertaking valuations of petroleum products storage terminal assets and businesses (20“Appraiser”) days of its receipt of Landlord’s determination, which notice shall set forth Tenant’s determination selected by the mutual written agreement of the fair market rental valueInterested Party and the Board. Should Tenant timely notify Landlord as aforesaid, Landlord The Appraiser shall determine Fair Market Value within forty-five (45) Days after its appointment and Tenant its determination shall attempt be final and conclusive on the parties. If the Interested Party and the Board are unable to resolve their differences agree upon an Appraiser within twenty ten (2010) days following Landlord’s receipt Days after the Interested Party has given notice of Tenant’s notice. Should Tenant fail to timely notify Landlord as aforesaidelection of appraisal, then ninety-five percent each of the Interested Party and the Board shall designate an Appraiser within an additional ten (95%10) of Landlord’s determination of fair market rental value as contained in Landlord’s notice shall constitute the Fair Market Rent.
(c) Should Tenant timely notify Landlord as aforesaid and if Landlord and Tenant cannot agree on fair market rental value during Days after such ten (10) day period, Landlord Day period and Tenant the two (2) Appraisers so selected shall each appoint a disinterested commercial real estate broker specializing in determine jointly the leasing of similarly situated real property in San Mateo County for at least ten Fair Market Value within forty-five (1045) years and give notice of such appointment to the other within ten (10) days after the preceding ten (10) day period. If either Landlord or Tenant shall fail timely to appoint a broker, then the single broker appointed by one party shall proceed to make the determination of fair market rental value. Such broker(s) shall, within thirty (30) days Days after the appointment of the last of them such Appraisers, and their determination shall be final and conclusive on the parties. If either party fails to be appointedappoint an Appraiser within the ten (10) Day period, complete their written determinations of fair market rental value and furnish the same to Landlord and Tenant. Each Appraiser timely selected by the other party shall pay determine the fees Fair Market Value within forty-five (45) Days after the expiration of such ten (10) Day period and costs its determination shall be final and conclusive on the parties. All expenses of appraisal shall be paid by the Interested Party unless (i) the Board was initially unable to timely make a determination of the broker appointed Fair Market Value or (ii) the Fair Market Value resulting from the appraisal exceeds by it. five percent (5%) or more the Fair Market Value initially determined by the Board, in either which case, the expenses of the appraisal shall be paid by the Company.
(c) If the valuations vary Appraisers selected above are unable to reach a joint determination of Fair Market Value within the time period provided, then such Appraisers shall promptly submit their respective valuation reports, together with supporting documentation, to a third Appraiser mutually selected by 5% or less the first two Appraisers, which third Appraiser shall within an additional forty-five (45) Day period, determine the Fair Market Value and such determination shall be final and conclusive as to all parties hereto. In addition to the expenses provided for in Section 7.9(b), all expenses of the lower value, the fair market rental value third Appraiser shall be payable one-half by the average of Company and one-half by the two valuationsInterested Party.
(d) If the valuations vary by more than 5% of the lower value, the two brokers shall, within ten (10) days after submission of the last appraisal report, appoint a third disinterested broker satisfying the same qualifications. If the two brokers shall be unable to agree in a timely manner on the selection of the third broker, then either broker, on behalf of both, may request appointment of such third disinterested broker by the presiding judge of the Superior Court of the county in which the Premises are located or through the American Arbitration Association process. Such third broker shall, within thirty (30) days after appointment, select one of the two valuations submitted by the first two brokers as such third brokerEach Appraiser’s determination of fair market rental valueFair Market Value shall be contained in a written report, with copies provided to the Interested Party and shall submit such decision to Landlord and Tenantthe Board. The fair market rental value of Interested Party and the Premises as determined Company agree to provide the Appraisers access to all information, books and records and other data and documentation (including matters that may be deemed trade secrets or otherwise confidential) and to fully and promptly cooperate with requests by the third broker shall be controlling. All fees and costs incurred in connection with Appraisers for information regarding the determination of fair market rental value by the third broker shall be paid one-half by Landlord and one-half by TenantCompany or its business or assets.
(e) All valuations done pursuant to Notwithstanding the foregoing, the time periods provided for determination of Fair Market Value under this Section 25.2 Agreement shall be automatically extended (but no more than double the time period provided for herein) at the request of the Company or an Appraiser if necessary in order to obtain additional information or to provide a reasonable period of time to properly analyze information needed to determine Fair Market Value.
(f) Notwithstanding the foregoing, in the event an appraisal is requested, then the time periods provided (i) for the exercise of options to purchase Membership Interests from a Disposing Member under this Agreement that have an option exercise price based on leases Fair Market Value shall be automatically extended to provide the parties with an option period under this Agreement of similar office, research & development, at least ten (10) Days following the giving of written notice to the Company and lab flex buildings in the cities relevant Members of Xxxxxx City, Redwood Shores the determination of Fair Market Value and San Mateo(ii) for the closing of any purchase and sale of Membership Interests under this Agreement shall be extended to a date ten (10) Business Days after the determination of the Fair Market Value.
Appears in 1 contract
Samples: Limited Liability Company Agreement (TransMontaigne Partners L.P.)
Determination of Fair Market Value. Upon the commencement 50.1 Whenever a determination of the extension termFair Market Value is required pursuant to any provision of this Lease, the Base Rent such Fair Market Value shall be an annual amount equal to ninety-five percent (95%) of determined in accordance with the fair market rental value of the Premises in its then current condition, use and configuration, and without regard to any other possible condition, use, configuration or land use entitlements or restrictions with respect to the Premises, determined as follows (“Fair Market Rent”):following procedure:
(a) Landlord and Tenant shall deliver endeavor to Tenant written notice of Landlord’s determination of fair market rental value agree upon such Fair Market Value within thirty (30) days after the date (the “Applicable Initial Date”) on which Tenant provides Landlord receives with an Option Notice to purchase the Premises pursuant to Paragraph 25 or on which Landlord provides Tenant with a notice from Tenant that Tenant Landlord has exercised achieved the Extension OptionClean-Up Standard as described in Paragraph 27.
(b) If Tenant disputes Landlord’s determination of the fair market rental value as contained in Landlord’s noticeparties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifty (50) days after the Applicable Initial Date select an appraiser and notify Landlord in writing within twenty (20) days of its receipt of Landlord’s determination, which notice shall set forth Tenant’s determination of the fair market rental valuename, address and qualifications of such appraiser. Should Tenant timely notify Landlord as aforesaid, Landlord and Tenant shall attempt to resolve their differences within Within twenty (20) days following Landlord’s receipt of Tenant’s noticenotice of the appraiser selected by Tenant, Landlord shall select an appraiser and notify Tenant of the name, address and qualifications of such appraiser. Should Tenant fail Such two appraisers shall endeavor to timely notify Landlord as aforesaid, then ninety-five percent (95%) of Landlord’s determination of fair market rental value as contained in Landlord’s notice shall constitute the agree upon Fair Market RentValue based on a written appraisal made by each of them as of the Relevant Date (and given to Landlord by Tenant). If such two appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(c) Should Tenant timely notify Landlord as aforesaid and if If such two appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of an appraiser by Landlord, then such appraisers shall advise Landlord and Tenant cannot agree on fair market rental value during such ten (10) day period, of their respective determination of Fair Market Value and shall select a third appraiser to make the determination of Fair Market Value. The selection of the third appraiser shall be binding and conclusive upon Landlord and Tenant Tenant.
(d) If such two appraisers shall each appoint be unable to agree upon the designation of a disinterested commercial real estate broker specializing in the leasing of similarly situated real property in San Mateo County for at least ten (10) years and give notice of such appointment to the other third appraiser within ten (10) days after the preceding ten expiration of the twenty (1020) day period. If either Landlord period referred to in clause (iii) above, or Tenant shall fail timely to appoint if such third appraiser does not make a broker, then the single broker appointed by one party shall proceed to make the determination of fair market rental value. Such broker(s) shall, Fair Market Value within thirty twenty (3020) days after his selection, then such third appraiser or a substituted third appraiser, as applicable, shall, at the appointment request of either party hereto (with respect to the last of them to other party), be appointed, complete their written determinations of fair market rental value and furnish the same to Landlord and Tenant. Each party shall pay the fees and costs of the broker appointed by itthe American Arbitration Association in Tulsa, Oklahoma. The determination of Fair Market Value made by the third appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(e) If the valuations vary by 5% or less of the lower valuea third appraiser is selected, the fair market rental value Fair Market Value shall be the average of the two valuationsdetermination of Fair Market Value made by the third appraiser and the determination of Fair Market Value made by the appraiser (selected pursuant to Paragraph 28(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third appraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(df) If All appraisers selected or appointed pursuant to this Paragraph 31(a) shall (A) be independent qualified MAI appraisers (B) have no right, power or authority to alter or modify the valuations vary by more than 5% provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth above, and (D) be registered in the State if the State provides for or requires such registration.
(g) The Cost of the lower value, the two brokers shall, within ten (10procedure described in this Paragraph 28(a) days after submission of the last appraisal report, appoint a third disinterested broker satisfying the same qualifications. If the two brokers shall be unable to agree in a timely manner on the selection of the third broker, then either broker, on behalf of both, may request appointment of such third disinterested broker by the presiding judge of the Superior Court of the county in which the Premises are located or through the American Arbitration Association process. Such third broker shall, within thirty (30) days after appointment, select one of the two valuations submitted by the first two brokers as such third broker’s determination of fair market rental value, and shall submit such decision to Landlord and Tenant. The fair market rental value of the Premises as determined by the third broker shall be controlling. All fees and costs incurred in connection with the determination of fair market rental value by the third broker above shall be paid one-half by Landlord Tenant and one-half by TenantLandlord.
(e) All valuations done 50.2 If, by virtue of any delay, Fair Market Value is not determined by the expiration or termination of the then current Term, then the date on which the Term would otherwise expire or terminate shall be extended with respect to the Premises, to the date specified for termination in the particular provision of this Lease pursuant to this Section 25.2 which the determination of Fair Market Value is being made. In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (a) the present value of the Rent for the remaining Term provided herein (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on leases the creditworthiness of similar office, research & development, Tenant and lab flex buildings in (b) the cities present value of Xxxxxx City, Redwood Shores the Premises as of the date of the appraisal. The appraisers shall further assume that no default then exists under the Lease and San Mateothat Tenant has complied (and will comply) with all provisions of the Lease.
Appears in 1 contract
Samples: Lease (Pw Eagle Inc)
Determination of Fair Market Value. Upon If requested by the commencement holders of a majority of the extension termConversion Shares, the Base Rent shall Fair Market Value will be appraised by an annual amount equal to ninety-five percent (95%) independent appraiser appearing on the attached Schedule A selected by mutual agreement of Nordstrom and the holders of a majority of the fair market rental value Investor Stock (the "First Appraiser"). The First Appraiser will render an appraisal of the Premises in its then current condition, use and configuration, and without regard to any other possible condition, use, configuration or land use entitlements or restrictions with respect to the Premises, determined as follows (“Fair Market Rent”):
(a) Landlord shall deliver Value to Tenant written notice Nordstrom and the Investors. Nordstrom and the Investors will cause the fees and expenses of Landlord’s determination the First Appraiser to be paid by the LLC. Each of fair market rental value Nordstrom and the Investors will be entitled within thirty (30) days after Landlord receives notice from Tenant that Tenant has exercised the Extension Option.
(b) If Tenant disputes Landlord’s determination receipt of the fair market rental value as contained in Landlord’s notice, Tenant shall notify Landlord in writing within twenty (20) days of its receipt of Landlord’s determination, which notice shall set forth Tenant’s determination appraisal of the fair market rental valueFirst Appraiser to dispute such appraisal. Should Tenant timely notify Landlord In such event, the disputing party will select a second independent appraiser appearing on the attached Schedule A (the "Second Appraiser") who shall render an appraisal of the Fair Market Value. Nordstrom and the Investors will cause the fees and expenses of the Second Appraiser to be paid by the LLC. The First Appraiser and Second Appraiser shall meet to resolve their differences, if any, as aforesaid, Landlord and Tenant shall attempt to the Fair Market Value. If such two appraisers are able to resolve their differences within twenty (20) days following Landlord’s receipt as to Fair Market Value, the joint decision of Tenant’s notice. Should Tenant fail to timely notify Landlord as aforesaid, then ninety-five percent (95%) of Landlord’s determination of fair market rental value as contained in Landlord’s notice shall constitute such appraisers will be the Fair Market Rent.
(c) Should Tenant timely notify Landlord Value. If the First Appraiser and the Second Appraiser are unable to resolve their differences as aforesaid and if Landlord and Tenant cannot agree on fair market rental value during such ten (10) day period, Landlord and Tenant shall each appoint a disinterested commercial real estate broker specializing in the leasing of similarly situated real property in San Mateo County for at least ten (10) years and give notice of such appointment to the other Fair Market Value within ten (10) 30 days after the preceding ten (10) day period. If either Landlord or Tenant shall fail timely to appoint a broker, then the single broker appointed by one party shall proceed to make the determination of fair market rental value. Such broker(s) shall, within thirty (30) days after the appointment receipt of the last of them second appraisal, the First Appraiser and the Second Appraiser shall in turn select a third appraiser from the list on the attached Schedule A (the "Third Appraiser") to be appointed, complete their written determinations of fair market rental value appraise the Fair Market Value. Nordstrom and furnish the same to Landlord and Tenant. Each party shall pay Investors will cause the fees and costs expenses of the broker appointed Third Appraiser to be paid by itthe LLC. If the valuations vary by 5% or less The average of the lower value, three appraisals shall be the Fair Market Value. The Fair Market Value shall equal the fair market rental value shall be the average of the two valuations.
(d) If the valuations vary by more than 5% of the lower value, the two brokers shall, within ten (10) days after submission of the last appraisal report, appoint a third disinterested broker satisfying the same qualifications. If the two brokers shall be unable to agree in a timely manner on the selection of the third broker, then either broker, on behalf of both, may request appointment of such third disinterested broker by the presiding judge of the Superior Court of the county in which the Premises are located or through the American Arbitration Association process. Such third broker shall, within thirty (30) days after appointment, select one of the two valuations submitted by the first two brokers as such third broker’s determination of fair market rental value, and shall submit such decision to Landlord and Tenant. The fair market rental value of the Premises as determined company multiplied by a fraction (i) the third broker numerator of which is the number of Conversion Shares, and (ii) the denominator of which is the number of outstanding shares of Common Stock outstanding after giving effect to (A) the conversion of all outstanding convertible securities of the Company, (B) the exercise of all outstanding vested in-the-money securities of the Company, and (C) consummation of the merger contemplated pursuant to Section 5.8 of the Joint Venture Agreement between the Company and Nordstrom. (For purposes of the preceding sentence, the number of outstanding shares shall be controllingdetermined as of September 1, 2002). All fees and costs incurred in connection with Each appraiser shall appraise the determination of fair market rental value of the Company taken as a whole, taking into account valuation parameters deemed appropriate by such appraiser (including, without limitation, the third broker shall be paid one-half by Landlord Company's value as a going concern as a privately or publicly held company, the Company's value if sold to a willing buyer in an arms'-length transaction and one-half by Tenant.
(e) All valuations done pursuant the Company's value upon liquidation), without giving effect to this Section 25.2 shall be based on leases of similar office, research & development, and lab flex buildings any adjustment for the fact that the Investor Stock indirectly represents a minority interest in the cities of Xxxxxx City, Redwood Shores and San MateoLLC.
Appears in 1 contract
Samples: Put Agreement (Nordstrom Inc)
Determination of Fair Market Value. Upon the commencement When SCB timely gives Landlord written notice to proceed under Section C of the extension termthis Pre-emptive Rights Agreement, the Base Rent following procedures shall be an annual amount equal apply:
1. Within seven days after it gives notice of its election to ninety-five percent (95%) of the fair market rental value of the Premises in its then current conditionproceed under this section, use and configuration, and without regard to any other possible condition, use, configuration or land use entitlements or restrictions with respect to the Premises, determined as follows (“Fair Market Rent”):
(a) Landlord SCB shall deliver to Tenant Landlord a written statement of its proposed fair market rent for the subject premises. The relevant market shall be comparable space within the greater downtown Sacramento area. That rent may include any lease concessions offered by Landlords within the above-reference market for leased premises, including without limitation, free rent, or any other payments or concessions.
2. Within ten days after SCB delivers the foregoing written statement of its proposed fair market rent, Landlord may accept the same by a notice given in writing to SCB. In that event, the rent terms shall be as stated in SCB’s notice. If Landlord elects to dispute SCB’s proposed rent, it shall, within the same ten day period, deliver to SCB its written rejection of SCB’s proposal. If Landlord fails to timely respond to SCB’s proposal, the same shall be deemed a rejection of SCB’s proposal.
3. Upon Landlord’s rejection of SCB’s proposal, Landlord and SCB shall, within fifteen days after the expiration of Landlord’s determination time to accept or reject SCB’s proposal (irrespective of fair market rental value within thirty (30) days after whether actual rejection is given or Landlord receives notice from Tenant that Tenant has exercised the Extension Option.
(b) If Tenant disputes Landlord’s determination of the fair market rental value as contained in Landlordmakes no response to SCB’s notice, Tenant shall notify Landlord in writing within twenty (20) days of its receipt of Landlord’s determination, which notice shall set forth Tenant’s determination of the fair market rental value. Should Tenant timely notify Landlord as aforesaid), Landlord and Tenant shall attempt to resolve their differences within twenty (20) days following Landlord’s receipt of Tenant’s notice. Should Tenant fail to timely notify Landlord as aforesaid, then ninety-five percent (95%) of Landlord’s determination of fair market rental value as contained in Landlord’s notice shall constitute the Fair Market Rent.
(c) Should Tenant timely notify Landlord as aforesaid and if Landlord and Tenant cannot agree on fair market rental value during such ten (10) day period, Landlord and Tenant SCB shall each appoint one arbitrator who shall by profession be a disinterested commercial real estate appraiser or broker specializing in who shall have been active over the leasing of similarly situated real property in San Mateo County for at least ten five (105) years and give notice year period ending on the date of such appointment to in the other within ten (10) days after appraisal or brokerage of comparable commercial properties in the preceding ten (10) day periodGreater Downtown Sacramento Market. If either Landlord or Tenant shall fail timely to appoint a broker, then the single broker The two arbitrators so appointed by one party shall proceed to make the determination of fair market rental value. Such broker(s) shall, within thirty (30) fifteen days after the appointment of the last appointed arbitrator, jointly agree upon and appoint a third arbitrator, who shall be qualified under the same criteria set forth hereinabove for qualification of them the initial two arbitrators. The arbitrators shall give written notice to the parties of the identities of the members of the arbitration panel.
4. The determination of the three arbitrators shall be appointed, complete their written determinations limited solely to the issue of whether Landlord’s or SCB’s submitted fair market rental value for the subject premises is the closest to the actual fair market rental for the Premises, taking into account all relevant factors, including the other terms of the lease (i.e. the terms of the lease for 000 X Xxxxxx, Xxxxx 225, except rent and furnish tenant improvement allowance). Upon notification that the same to panel has been formed, Landlord and Tenant. Each party SCB shall pay the fees and costs of the broker appointed by it. If the valuations vary by 5% or less of the lower value, submit to each arbitrator their respective proposed figures for the fair market rental value of the premises, with copies to one another. Such submittal shall be the average made within seven days after notification of the two valuations.
(d) If the valuations vary by more than 5% formation of the lower value, panel and the two brokers shall, within ten (10) identities of its members. Within thirty days after submission submittal of the last appraisal reportproposed figures, the arbitrators shall reach a decision as to whether the parties shall use Landlord’s or SCB’s submitted fair market rent as the rent. The arbitrators shall notify Landlord and SCB of their decision. Such decision shall be based upon the projected prevailing fair market rent for comparable space in the Greater Downtown Sacramento Market area. The decision of the majority of the arbitrators shall control.
5. If either Landlord or SCB fail to appoint a third disinterested broker satisfying an arbitrator within the time set forth above, the arbitrator appointed by one of them shall request and receive proposed figures for fair market rent, pursuant to the same qualificationstimetable, and shall reach a decision in accordance with the foregoing subparagraph. That arbitrator shall notify Landlord and SCB of his or her decision, and the decision of such arbitrator shall be controlling. If the two brokers arbitrators fail to agree upon and appoint a third arbitrator, both shall be unable to agree in a timely manner on dismissed and the selection of the third broker, then either broker, on behalf of both, may request appointment of such third disinterested broker matter shall be decided by the presiding judge same standard by submission to arbitration under the rules of the Superior Court of the county in which the Premises are located or through the American Arbitration Association processAssociation. Such third broker shall, within thirty (30) days after appointment, select one All costs of the two valuations submitted by the first two brokers as such third broker’s determination of fair market rental value, and shall submit such decision to Landlord and Tenant. The fair market rental value of the Premises as determined by the third broker arbitration shall be controlling. All fees and costs incurred in connection with the determination of fair market rental value by the third broker shall be paid one-half shared equally by Landlord and one-half by TenantSCB.
(e) All valuations done pursuant to this Section 25.2 shall be based on leases of similar office, research & development, and lab flex buildings in the cities of Xxxxxx City, Redwood Shores and San Mateo.
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Determination of Fair Market Value. Upon If the commencement of the extension term, the Base Rent shall be an annual amount equal FRANCHISEE fails to ninety-five percent (95%) of the fair market rental value of the Premises in its then current condition, use and configuration, and without regard to any other possible condition, use, configuration or land use entitlements or restrictions with respect to the Premises, determined as follows (“Fair Market Rent”):
(a) Landlord shall deliver to Tenant give WCH written notice of Landlord’s determination of fair market rental value within thirty (30) days after Landlord receives notice from Tenant that Tenant has exercised the Extension Option.
(b) If Tenant disputes Landlord’s determination asking price of the fair market rental value as contained in Landlord’s noticeBusiness Assets, Tenant shall notify Landlord in writing within twenty (20) days of its receipt of Landlord’s determination, which notice shall set forth Tenant’s determination of or if WCH and the fair market rental value. Should Tenant timely notify Landlord as aforesaid, Landlord and Tenant shall attempt to resolve their differences within twenty (20) days following Landlord’s receipt of Tenant’s notice. Should Tenant fail to timely notify Landlord as aforesaid, then ninety-five percent (95%) of Landlord’s determination of fair market rental value as contained in Landlord’s notice shall constitute the Fair Market Rent.
(c) Should Tenant timely notify Landlord as aforesaid and if Landlord and Tenant FRANCHISEE cannot agree on the price of the Business Assets, then either party will have the right to demand that the price of the Business Assets be determined by Arbitration in accordance with the Rules and Regulations of the American Arbitration Association. The Arbitration hearing will be held as soon as possible, but in no event later than seven (7) business days from the date Arbitration is demanded by either party. The Arbitrator will determine the fair market value of the Business Assets. The Arbitrator will not consider any value for goodwill associated with the names We Care Hair(R) or We Care Hair(R) or for going concern value in determining the fair market value of the Business Assets since the right of purchase granted to WCH pursuant to this provision applies only after this Agreement has expired or has been terminated, or the FRANCHISEE has ceased doing business. Furthermore, the Arbitrator will not consider any value for the Lease for the Franchised Location if WCH agrees to assume the Lease and pay the rental and operating costs. If the Arbitrator is unable to determine the fair market value during such ten of any of the Business Assets, then they will be valued at book value (10cost less depreciation). WCH will have the right, but not the obligation, to purchase any or all of the Business Assets from the FRANCHISEE for cash within fifteen (15) day period, Landlord and Tenant shall each appoint a disinterested commercial real estate broker specializing in the leasing of similarly situated real property in San Mateo County for at least ten (10) years and give notice of such appointment to the other within ten (10) business days after the preceding ten (10) day period. If either Landlord or Tenant shall fail timely to appoint a broker, then the single broker appointed by one party shall proceed to make the determination of fair market rental value. Such broker(s) shall, within thirty (30) days after the appointment of the last of them to be appointed, complete their written determinations of fair market rental value and furnish the same to Landlord and Tenant. Each party shall pay the fees and costs of the broker appointed by it. If the valuations vary by 5% or less of the lower value, the fair market rental value shall be the average of the two valuations.
(d) If the valuations vary by more than 5% of the lower value, the two brokers shall, within ten (10) days after submission of the last appraisal report, appoint a third disinterested broker satisfying the same qualifications. If the two brokers shall be unable to agree in a timely manner on the selection of the third broker, then either broker, on behalf of both, may request appointment of such third disinterested broker by the presiding judge of the Superior Court of the county in which the Premises are located or through the American Arbitration Association process. Such third broker shall, within thirty (30) days after appointment, select one of the two valuations submitted by the first two brokers as such third broker’s determination of fair market rental value, and shall submit such decision to Landlord and Tenant. The fair market rental value of the Premises as determined Business Assets has been established by the third broker shall be controllingArbitrator in writing. All fees Nothing in this Article will prohibit WCH from enforcing the terms and costs incurred conditions of this Agreement, including the covenants not to compete contained in connection with the determination of fair market rental value by the third broker shall be paid one-half by Landlord and one-half by TenantArticle 12.
(e) All valuations done pursuant to this Section 25.2 shall be based on leases of similar office, research & development, and lab flex buildings in the cities of Xxxxxx City, Redwood Shores and San Mateo.
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Samples: Franchise Agreement (Barbers Hairstyling for Men & Women Inc)
