Determination of Market Rent. If Tenant timely and appropriately objects to the Market Rent in Tenant’s Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one (21) days following Tenant’s Acceptance (“Outside Agreement Date”), then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii): (i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), above. (ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators. (iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, and shall notify Landlord and Tenant thereof. (iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant. (v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant. (vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d). (vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 3 contracts
Samples: Standard Office Lease, Standard Office Lease (Nexsan Corp), Standard Office Lease (Alliance Bancshares California)
Determination of Market Rent. Upon notification from Tenant of the exercise of its renewal option, Landlord shall within ten (10) business days thereafter notify Tenant in writing of the proposed Market Rate applicable to the extended Term; Tenant shall within ten (10) business days following receipt of such notice from Landlord, notify Landlord in writing of the acceptance or rejection of the proposed Market Rate. If Tenant timely and appropriately objects fails to respond to Landlord’s determination of Market Rate within said ten (10) business-day period, Tenant shall be deemed to have rejected Landlord’s designation of Market Rate for all purposes. In the event of rejection by Tenant, the Market Rent in Rate for the renewal Term shall be determined as follows:
(1) Within ten (10) business days following notification of Tenant’s Acceptancerejection (or expiration of the ten (10) business day Tenant response period), Landlord and Tenant shall each appoint a broker. Any broker appointed hereunder shall be impartial, shall have at least ten (10) years’ experience as a real estate broker involved in flex building transactions in the Sonoma County area and shall be licensed to perform brokerage services in the State in which the Premises are located. If either party does not appoint a broker within the ten (10) business day period, then the other party may apply to the presiding judge of the Sonoma County Superior Court for such appointment, which appointment shall be conclusive on all parties and nonappealable. The brokers so appointed shall meet promptly and attempt to agree on the Market Rate for the renewal Term. The determination of Market Rate by the two brokers, if they agree, shall be binding on Landlord and Tenant.
(2) If the two brokers cannot agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one (21) days following Tenant’s Acceptance (“Outside Agreement Date”), then each party shall make a separate determination of Rate for the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, renewal Term within ten (10) business days of following their appointment, then the Outside Agreement Datetwo brokers shall select a third broker, one arbitrator who shall by profession be but if they are unable to agree on a current real estate third broker or appraiser of commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall within five (5) business days days, then either Landlord or Tenant may apply to the presiding judge of the date of the Sonoma County Superior Court for such appointment, which appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial conclusive on all parties and nonappealable.
(3) The first two (2) arbitrators.
(iii) The three (3) arbitrators brokers selected hereunder shall within fifteen (15) days each deliver a signed, brief written report of the appointment of the third arbitrator reach a decision as each broker’s respective opinion to whether the parties shall use Tenant, Landlord’s or Tenant’s submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator third broker within ten (10) business days after the applicable Outside Agreement Date, the arbitrator appointed by third broker’s appointment. The third broker must choose one of them shall reach a decision, notify Landlord the two opinions of market rent and Tenant thereof, and such arbitrator’s decision may not average the determinations. The opinion chosen by the third broker shall be binding upon on Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment . The fee of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) The cost of arbitration broker initially selected by Tenant shall be paid by Tenant, the fee of the broker initially selected by Landlord shall be paid by Landlord, and the fee of any third broker and any expenses of the third broker (except attorneys’ fees, which shall be borne by the party incurring the same) shall be shared equally by Tenant equallyand Landlord.
(4) If the determination proceedings are initiated as provided above in order to determine the Market Rate which is applicable to the renewal term, the decision and award of the brokers as to such Market Rate shall be final, conclusive, and binding on the parties, absent settlement by agreement of the parties prior to the rendering by the brokers of any such decision and award. If the Market Rate is not finally determined prior to the commencement of the renewal Term, Tenant shall pay Base Rent equal to the previous month’s Base Rent until the final determination of the Market Rate for the renewal Term occurs as provided above. If final determination of such Market Rate is different from the amount paid by Tenant, Tenant shall promptly pay to Landlord any additional Base Rent.
Appears in 3 contracts
Samples: Lease Agreement (Endologix Inc /De/), Lease Agreement (TriVascular Technologies, Inc.), Lease Agreement (TriVascular Technologies, Inc.)
Determination of Market Rent. If Tenant timely and appropriately objects The rent payable for the Premises during the Renewal Term shall be adjusted to the Market Rent (as defined in Tenant’s AcceptanceSection 2.2.2) as of the Renewal Term Commencement Date. In order to determine the Market Rent for the Renewal Term, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one (21) days following Tenant’s Acceptance (“Outside Agreement Date”), then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Datedate on which the Renewal Notice is given by Tenant, shall commence discussions to endeavor to agree upon the arbitrator appointed by one of them shall reach a decision, notify Market Rent. In the event that Landlord and Tenant thereofdo not agree upon such rate within twenty (20) days after the expiration of said ten (10) day period, on the twenty-fifth (25th) day after the expiration of said ten (10) day period, Landlord and Tenant shall each simultaneously submit to the other in writing its good faith estimate of the Market Rent. If the higher of said estimates is not more than one hundred and five percent (105%) of the lower of such arbitrator’s decision estimates, the Market Rent in question shall be binding upon Landlord and Tenant.
(vi) deemed to be the average of the submitted rates. If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitratorotherwise, then the appointment of the third arbitrator or any arbitrator rate shall be dismissed and the matter set by arbitration to be decided shall be forthwith submitted to arbitration under held in the provisions county where the Premises is located in accordance with the Real Estate Valuation Arbitration Rules of the American Arbitration Association, but subject to except that the instruction set forth in this item (d).
(vii) The cost of arbitration shall be paid conducted by a single arbitrator who shall be selected as follows. By the date that is thirty (30) days after the simultaneous submittal by Landlord and Tenant equallyof their respective estimates of the Market Rent (such date, the “Outside Appointment Date”), each shall designate a recognized real estate expert or broker who shall have generally recognized current competence in the valuation of rental properties similar to the Building and Project in the county where the Building is located. The two individuals so designated shall, within thirty (30) days after the last of them is designated, appoint a third expert or broker possessing the aforesaid qualifications to be the single arbitrator who alone shall pick (within twenty (20) days after the single arbitrator is selected) one of the two rates submitted by Landlord and Tenant, being the rate which is closer to the Market Rent as determined by the arbitrator using the definition set forth in Section 2.2.
Appears in 2 contracts
Samples: Office Lease (Artiva Biotherapeutics, Inc.), Office Lease (Artiva Biotherapeutics, Inc.)
Determination of Market Rent. If In the event Tenant timely and appropriately objects or is deemed to have objected to the Market Rent in Tenant’s AcceptanceRent, Landlord and Tenant shall attempt to agree upon the Market Rent using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one sixty (2160) days following Tenant’s Acceptance 's objection or deemed objection to the Landlord's Option Rent Calculation (“the "Outside Agreement Date”"), then each party shall make a separate separate, final and binding determination of the Market Rent which Rent, within five (5) days following the Outside Agreement Date, and such determinations shall be submitted to each the other party and to arbitration in accordance with the following items (i) through (vii):arbitrators pursuant to the TCCs of this Section 2.2.4.
(i) 2.2.4.1 Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, appoint one arbitrator who shall by profession be a current commercial real estate lease broker or commercial real estate lease appraiser of commercial office properties in the immediate vicinity of the Project, and who has shall have been active in such field over the last five (5) yearsyear period ending on the date of such appointment in the leasing (or appraisal, as the case may be) of Comparable Buildings. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Market Rent Rent, is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item Section 2.2.2 of this Lease. Each such arbitrator shall be appointed within fifteen (b15) days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed ("Advocate Arbitrators"), above.
(ii) 2.2.4.2 The two (2) arbitrators Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within five ten (510) business days of the date of the appointment of the last appointed arbitrator Advocate Arbitrator agree upon and appoint a third arbitrator ("Neutral Arbitrator") who shall be qualified under a commercial real estate lease attorney who shall have been active over the same criteria five (5) year period ending on the date of such appointment in the leasing of Comparable Buildings, except that neither the Landlord or Tenant or either party's Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior to or subsequent to his or her appearance; provided, however, the Neutral Arbitrator shall retain an appraiser (the "Neutral Appraiser") to assist such Neutral Arbitrator (which Neutral Appraiser shall be selected by the Advocates Arbitrators). The Neutral Appraiser shall be retained for the sole purpose of advising and assisting the Neutral Arbitrator, and such Neutral Appraiser shall not have an independent vote as the whether Landlord's or Tenant's submitted Market Rent is closest to the Market Rent. In no event shall either the Neutral Arbitrator or the Neutral Appraiser have represented (or have been engaged to represent) Landlord or Tenant during the five (5) year period preceding the Outside Agreement Date or have any business or ownership affiliation with either of the Advocate Arbitrators during such five (5) year period (as opposed to having had professional interaction with the same). The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord's counsel and Tenant's counsel.
2.2.4.3 The parties shall, in connection with the determination of the Market Rent, enter into an arbitration agreement (the "Arbitration Agreement") which shall set forth hereinabove for qualification the following: (i) each party's final and binding Market Rent determination, (ii) an agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an Exhibit to the initial two (2) arbitrators.
Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, (iii) The instructions to be followed by the Neutral Arbitrator when conducting such arbitration, which instructions shall be mutually and reasonably prepared by Landlord and Tenant and which instructions shall be consistent with the terms and conditions of this Lease, (iv) that Landlord and Tenant shall each have the right to have its Advocate Arbitrator submit to the Neutral Arbitrator (with a copy to the other parties), on or before a date agreed upon by Landlord and Tenant, an advocate statement (and any other information such Advocate Arbitrator deems relevant), in support of Landlord's or Tenant's respective Market Rent determination (the "Briefs"), (v) that within three (3) arbitrators business days following the exchange of Briefs by each of the Advocate Arbitrators, the Advocate Arbitrators representing Landlord and Tenant shall each have the right to provide the Neutral Arbitrator (with a copy to the other parties) with a written rebuttal to the other party's Brief (the "First Rebuttals"); provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party's Brief and shall identify clearly which argument or fact of the other party's Brief is intended to be rebutted, (vi) that within three (3) business days following Landlord's and/or Tenant's receipt of the other party's First Rebuttal, the Advocate Arbitrators representing Landlord and Tenant, as applicable, shall have the right to provide the Neutral Arbitrator (with a copy to the other parties) with a written rebuttal to the other party's First Rebuttal (the "Second Rebuttals"); provided, however, such Second Rebuttals shall be limited to the facts and arguments raised in the other party's First Rebuttal and shall identify clearly which argument or fact of the other party's First Rebuttal is intended to be rebutted, (vii) the date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by the Advocate Arbitrators representing Landlord and Tenant, taking into consideration the schedules of the Landlord, the Tenant, the Neutral Arbitrator, and the Advocate Appraisers, which date shall in any event be within fifteen (15) business days of following the appointment of the third arbitrator reach Neutral Arbitrator, (viii) that no discovery shall take place in connection with the arbitration, (ix) that the Neutral Arbitrator shall not be allowed to undertake an independent investigation or consider any factual information other than presented by the Advocate Arbitrators representing Landlord or Tenant and information provided by the Neutral Appraiser based upon such Neutral Appraiser's review of the factual information presented by the Advocate Arbitrators representing Landlord or Tenant (except that the Neutral Arbitrator, with representatives from each of Landlord and Tenant, shall have the right to visit the Comparable Buildings), (x) the specific persons that shall be allowed to attend the arbitration, (xi) the Advocate Arbitrator representing Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed two (2) hours ("Tenant's Initial Statements"), (xii) following Tenant's Initial Statement, the Advocate Arbitrator representing Landlord shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed two (2) hours ("Landlord's Initial Statements"), (xiii) following Landlord's Initial Statements, the Advocate Arbitrator representing Tenant shall have up to one (1) additional hour to present additional arguments and/or to rebut the arguments offered in Landlord's Initial Statements ("Tenant's Rebuttal Statement"), (xiv) following Tenant's Rebuttal Statement, the Advocate Arbitrator representing Landlord shall have up to one (1) additional hour to present additional arguments and/or to rebut the arguments offered in Tenant's Initial Statements and Tenant's Rebuttal Statement ("Landlord's Rebuttal Statement"), (xv) that the Neutral Arbitrator shall render a decision as to ("Award") indicating whether the parties shall use Landlord’s 's or Tenant’s 's submitted Market Rent is closest to the Market Rent as determined by the Neutral Arbitrator, (xvi) that following notification of the Award, the Landlord's or Tenant's submitted Market Rent determination, whichever is selected by the Neutral Arbitrator as being closest to the Market Rent, shall become the then applicable Market Rent, and shall notify Landlord and Tenant thereof.
(ivxvii) The that the decision of the majority of the three (3) arbitrators Neutral Arbitrator shall be binding upon on Landlord and Tenant.
(v) 2.2.4.4 If either Landlord or Tenant fails fail to appoint an arbitrator Advocate Arbitrator within ten fifteen (1015) days after the applicable Outside Agreement Date, either party may petition the arbitrator appointed by one presiding judge of them shall reach a decisionthe Superior Court of San Diego County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.4.1 of this Lease, notify Landlord and Tenant thereofor if he or she refuses to act, and either party may petition any judge having jurisdiction over the parties to appoint such arbitrator’s decision shall be binding upon Landlord and TenantAdvocate Arbitrator.
(vi) 2.2.4.5 If the two arbitrators Advocate Arbitrators fail to agree upon and appoint a third arbitratorthe Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Diego County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.4.1 of this Lease, or both if he or she refuses to act, either party may petition any judge having jurisdiction over the parties fail to appoint an such arbitrator, then the appointment .
2.2.4.6 The costs of the third arbitrator or any arbitrator Neutral Arbitrator and Neutral Appraiser shall be dismissed and [***]. The costs of the matter to be decided Advocate Arbitrator representing the Tenant shall be forthwith submitted to arbitration under borne by the provisions Tenant. The Costs of the American Arbitration Association, but subject to Advocate Arbitrator representing the instruction set forth in this item (d).
(vii) The cost of arbitration Landlord shall be paid borne by Landlord and Tenant equallythe Landlord. The costs of petitioning any judge under Section 2.2.4.4 shall be [***]. The costs of petitioning any judge under Section 2.2.4.5 shall be [***].
Appears in 2 contracts
Samples: Lease Agreement (Bridgepoint Education Inc), Office Lease (Bridgepoint Education Inc)
Determination of Market Rent. If Tenant timely and appropriately objects to the Market Rent in Tenant’s Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one thirty (2130) days following Tenant’s Acceptance (“Outside Agreement Date”), then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current licensed real estate leasing broker or appraiser of comparable commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five ten (510) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), aboveabove (i.e., the arbitrators may only select Landlord’s or Tenant’s determination of Market Rent and shall not be entitled to make a compromise determination).
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two (2) arbitrators fail to agree upon and appoint a third (3rd) arbitrator, or both parties fail the appointment of the third (3rd) arbitrator shall made by one (1) JAMS arbitrator pursuant to appoint an arbitrator, then the JAMS Streamlined Arbitration Rules and Procedures in Chicago. The scope of the JAMS arbitration shall be limited to the appointment of the third arbitrator who will be involved in determining the Market Rent together with the original two arbitrators whom the parties have appointed. The JAMS arbitrator shall have no authority to determine the Market Rent or any other matter. Promptly after the JAMS arbitrator shall be dismissed appoints the third arbitrator for determining the Market Rent, such third arbitrator and the matter to be decided original two arbitrators shall be forthwith submitted to arbitration under determine the provisions of the American Arbitration Association, but subject to the instruction set forth Market Rent as provided in this item (d)Lease.
(vii) Judgment on any arbitration decision or award may be entered in any court having jurisdiction. The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 2 contracts
Samples: Standard Office Lease, Standard Office Lease (Coinstar Inc)
Determination of Market Rent. If In the event Tenant timely and appropriately objects or is deemed to have objected to the Market Rent in Tenant’s AcceptanceRent, Landlord and Tenant shall attempt to agree upon the Market Rent using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one sixty (2160) days following Tenant’s Acceptance objection or deemed objection to the Landlord’s Option Rent Calculation (the (the “Outside Agreement Date”), then (i) in connection with the Option Rent, Landlord’s Option Rent Calculation and Tenant’s Option Rent Calculation, each party as previously delivered to the other party, shall be submitted to the arbitrators pursuant to the TCCs of this Section 3.2.4, and (ii) in connection with any other contested calculation of market Rent, the parties shall each make a separate determination of the Market Rent which and shall submit the same to the arbitrators pursuant to the TCCs of this Section 3.2.5. The submittals shall be made concurrently with the selection of the arbitrators pursuant to this Section 3.2.5 and shall be submitted to each other and to arbitration in accordance with Section 3.2.5.1 through 3.2.5.5 of this First Amendment, but subject to the following items (i) through (vii):conditions, when appropriate, of Section 3.2.3.
(i) 3.2.5.1. Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, mutually and reasonably select and appoint one arbitrator who shall by profession be a current real estate broker broker, appraiser or appraiser of commercial office properties in attorney (the immediate vicinity of the Project, and “Neutral Arbitrator”) who has shall have been active in such field over the last five (5) yearsyear period ending on the date of such appointment in the leasing (or appraisal, as the case may be) of first-class office/lab/manufacturing properties in the Comparable Area. The determination of the arbitrators Neutral Arbitrator shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent Rent, is the closest to the actual Market Rent as determined by the arbitratorsNeutral Arbitrator, taking into account the requirements of item Section 3.2.2 of this First Amendment. Such Neutral Arbitrator shall be appointed within thirty (b)30) days after the applicable Outside Agreement Date. Neither the Landlord nor Tenant may, abovedirectly or indirectly, consult with the Neutral Arbitrator prior to subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
3.2.5.2. Within thirty (ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (1530) days of the appointment of the third arbitrator Neutral Arbitrator, such Neutral Arbitrator shall reach a decision as to Market Rent and determine whether the parties shall use Landlord’s or Tenant’s determination of Market Rent as submitted pursuant to Section 3.2.5.1 and Section 3.2.3 of this First Amendment is closest to Market Rent as determined by such Neutral Arbitrator and simultaneously publish a ruling (“Award”) indicating whether Landlord’s or Tenant’s submitted Market Rent is closest to the Market Rent as determined by the Neutral Arbitrator. Following notification of the Award, the Landlord’s or Tenant’s submitted Market Rent determination, whichever is selected by the Neutral Arbitrator as being closest to Market rent shall become the then applicable Market Rent, and shall notify Landlord and Tenant thereof.
(iv) 3.2.5.3. The decision of Award issued by the majority of the three (3) arbitrators Neutral Arbitrator shall be binding upon Landlord and Tenant.
(v) 3.2.5.4. If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a the Neutral Arbitrator, then either party may petition Judicial Arbitration & Mediation Services, Inc. (“JAMS”) to designate an independent third arbitrator, or both parties fail party to appoint an arbitratorthe Neutral Arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth criteria in Section 3.2.5.1 of this item (d)First Amendment.
(vii) 3.2.5.5. The cost of arbitration shall be paid by the party (either Landlord and Tenant equallyor Tenant) whose Market Rent is not selected by the Neutral Arbitrator.
Appears in 2 contracts
Samples: Office Lease (Favrille Inc), Office Lease (Favrille Inc)
Determination of Market Rent. If In the event Tenant timely and appropriately objects or is deemed to have objected to the Market Rent in Tenant’s AcceptanceRent, Landlord and Tenant shall attempt to agree upon the Market Rent using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one sixty (2160) days following Tenant’s Acceptance 's objection or deemed objection to the Landlord's Option Rent Calculation (“the "Outside Agreement Date”"), then each party shall make a separate separate, final and binding determination of the Market Rent which Rent, within five (5) days following the Outside Agreement Date, and such determinations shall be submitted to each the other party and to arbitration in accordance with the following items (i) through (vii):arbitrators pursuant to the TCCs of this Section 2.2.4.
(i) 2.2.4.1 Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, appoint one arbitrator who shall by profession be a current commercial real estate lease broker or commercial real estate lease appraiser of commercial office properties in the immediate vicinity of the Project, and who has shall have been active in such field over the last five (5) yearsyear period ending on the date of such appointment in the leasing (or appraisal, as the case may be) of Comparable Buildings. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Market Rent Rent, is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item Section 2.2.2 of this Lease. Each such arbitrator shall be appointed within fifteen (b15) days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed ("Advocate Arbitrators"), above.
(ii) 2.2.4.2 The two (2) arbitrators Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within five ten (510) business days of the date of the appointment of the last appointed arbitrator Advocate Arbitrator agree upon and appoint a third arbitrator ("Neutral Arbitrator") who shall be qualified under a commercial real estate lease attorney who shall have been active over the same criteria set forth hereinabove five (5) year period ending on the date of such appointment in the leasing of Comparable Buildings, except that neither the Landlord or Tenant or either party's Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior to or subsequent to his or her appearance; provided, however, the Neutral Arbitrator shall retain an appraiser (the "Neutral Appraiser") to assist such Neutral Arbitrator (which Neutral Appraiser shall be selected by the Advocates Arbitrators). The Neutral Appraiser shall be retained for qualification the sole purpose of advising and assisting the Neutral Arbitrator, and such Neutral Appraiser shall not have an independent vote as the whether Landlord's or Tenant's submitted Market Rent is closest to the Market Rent. In no event shall either the Neutral Arbitrator or the Neutral Appraiser have represented (or have been engaged to represent) Landlord or Tenant during the five (5) year period preceding the Outside Agreement Date or have any business or ownership affiliation with either of the initial two Advocate Arbitrators during such five (25) arbitratorsyear period (as opposed to having had professional interaction with the same). The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord's counsel and Tenant's counsel.
(iii) 2.2.4.3 The three (3) arbitrators shall within fifteen (15) days parties shall, in connection with the determination of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, enter into an arbitration agreement (the "Arbitration Agreement") which shall set forth the following: [***] [***] Confidential portions of this document have been redacted and shall notify Landlord and Tenant thereoffiled separately with the Commission.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) 2.2.4.4 If either Landlord or Tenant fails fail to appoint an arbitrator Advocate Arbitrator within ten fifteen (1015) days after the applicable Outside Agreement Date, either party may petition the arbitrator appointed by one presiding judge of them shall reach a decisionthe Superior Court of San Diego County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.4.1 of this Lease, notify Landlord and Tenant thereofor if he or she refuses to act, and either party may petition any judge having jurisdiction over the parties to appoint such arbitrator’s decision shall be binding upon Landlord and TenantAdvocate Arbitrator.
(vi) 2.2.4.5 If the two arbitrators Advocate Arbitrators fail to agree upon and appoint a third arbitratorthe Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Diego County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.4.1 of this Lease, or both if he or she refuses to act, either party may petition any judge having jurisdiction over the parties fail to appoint an such arbitrator, then the appointment .
2.2.4.6 The costs of the third arbitrator or any arbitrator Neutral Arbitrator and Neutral Appraiser shall be dismissed and [***]. The costs of the matter to be decided Advocate Arbitrator representing the Tenant shall be forthwith submitted to arbitration under borne by the provisions Tenant. The Costs of the American Arbitration Association, but subject to Advocate Arbitrator representing the instruction set forth in this item (d).
(vii) The cost of arbitration Landlord shall be paid borne by Landlord and Tenant equallythe Landlord. The costs of petitioning any judge under Section 2.2.4.4 shall be [***]. The costs of petitioning any judge under Section 2.2.4.5 shall be [***].
Appears in 2 contracts
Samples: Office Lease (Bridgepoint Education Inc), Office Lease (Bridgepoint Education Inc)
Determination of Market Rent. If Tenant timely and appropriately objects to the Market Rent in Tenant’s Acceptanceas provided above, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one thirty (2130) days following Tenant’s 's Acceptance (“"Outside Agreement Date”"), then each party Tenant shall make a separate determination of the Market Rent which shall be submitted to each other Landlord, and Tenant's determination of Market Rent and Landlord's determination of Market Rent as set forth in the Option Rent Notice shall be submitted to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of comparable commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five ten (510) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), aboveabove (i.e., the arbitrators may only select Landlord's or Tenant's determination of Market Rent and shall not be entitled to make a compromise determination).
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision based on the concurrence of no less than two (2) of such arbitrators as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s 's decision shall be binding upon Landlord and Tenant.
(vi) If the two (2) arbitrators fail to agree upon and appoint a third (3rd) arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 2 contracts
Samples: Lease (Cohu Inc), Agreement of Purchase and Sale (Cohu Inc)
Determination of Market Rent. The Market Rent shall be based on the rent for comparable renewal leases (in terms of length of term, space and other relevant factors) for space in the Schrafft Center executed within the preceding twelve (12) month period and for comparable renewal leases (in terms of length of term, space, and other relevant factors) for comparable space in the Charlestown area. Tenant shall have fifteen (15) business days after receipt of Landlord's notice of Market Rent to notify Landlord that Tenant is contesting same. Tenant's failure to so notify Landlord within such fifteen (15) day period shall be deemed an acceptance of the Market Rent set forth in Landlord's notice and a waiver of Tenant's right to contest Landlord's determination of Market Rent. If Tenant timely and appropriately objects contests Landlord's determination of Market Rent, then the parties shall have thirty (30) days after Landlord receives Tenant's notice of contest in accordance herewith in which to agree on the Market Rent in Tenant’s Acceptancefor the Extension Period. If the parties agree on the Market Rent during such thirty (30) day period, Landlord and Tenant shall attempt execute an amendment to this Lease setting forth the Annual Fixed Rent for the Extension Period. If the parties are unable to agree upon on the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one the thirty (2130) days following Tenant’s Acceptance (“Outside Agreement Date”)day period, then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appointthen, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Dateexpiration of that period, each party, at its cost and by giving written notice to the other party, shall appoint a qualified M.A.I. real estate appraiser with at least 5 years' full-time commercial appraisal experience in the greater Boston metropolitan area to appraise and set the Market Rent for the Premises in accordance with the foregoing criteria. If a party does not appoint such an appraiser within ten (10) days after the other party has given notice of the name of its appraiser, the arbitrator single appraiser appointed shall be the sole appraiser and shall set the Market Rent for the Premises. The two appraisers appointed by one of them the parties as stated in this paragraph shall reach meet promptly and attempt to establish the Market Rent for the Premises. If they are unable to agree within thirty (30) days after the second appraiser has been appointed, they shall attempt to elect a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
third appraiser meeting the qualifications stated in this paragraph within ten (vi10) If days after the last day the two arbitrators fail appraisers are given to set the Market Rent. If they are unable to agree upon and appoint on the third appraiser, either of the parties to this Lease, by giving ten (10) days' notice to the other party, can appeal to the then president of the Greater Boston Real Estate Board, for the selection of a third arbitrator, or both appraiser who meets the qualifications stated in this paragraph. Each of the parties fail to appoint an arbitrator, then shall bear one-half (1/2) of the appointment cost of appointing and paying the fee of the third arbitrator or any arbitrator appraiser. The third appraiser, however selected, shall be dismissed a person who has not previously acted in any capacity for either party. Within thirty (30) days after the selection of the third appraiser, a majority of the appraisers shall set the Market Rent for the Premises. If a majority of the appraisers are unable to set the Market Rent within the stipulated period of time, the three appraisals shall be added together and their total divided by three; the resulting quotient shall be the Market Rent for the Premises. If, however, the low appraisal and/or the high appraisal are more than ten (10%) percent lower and/or higher than the middle appraisal, the low appraisal and/or the high appraisal shall be disregarded. If only one appraisal is disregarded, the remaining two appraisals shall be added together and their total divided by two; the resulting quotient shall be the Market Rent for the Premises. If both the low appraisal and the matter to be decided high appraisal are disregarded as stated in this paragraph, the middle appraisal shall be forthwith submitted to arbitration under the provisions Market Rent of the American Arbitration Association, but subject to the instruction set forth in this item (d)Premises.
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 2 contracts
Samples: Commercial Lease (IntraLinks Holdings, Inc.), Commercial Lease (IntraLinks Holdings, Inc.)
Determination of Market Rent. If In the event Tenant timely and appropriately objects or is deemed to have objected to the Market Rent in Tenant’s AcceptanceRent, Landlord and Tenant shall attempt to agree upon the Market Rent using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one sixty (2160) days following Tenant’s Acceptance objection or deemed objection to the Landlord’s Option Rent Calculation (the “Outside Agreement Date”), then each party shall make a separate determination of then, within two (2) business days following such Outside Agreement Date, (x) Landlord may reestablish the Market Landlord’s Option Rent which shall be submitted Calculation by delivering written notice thereof to each other Tenant, and (y) Tenant may reestablish the Tenant’s Option Rent Calculation by delivering written notice thereof to arbitration in accordance with the following items (i) through (vii):
(i) Tenant. If Landlord and Tenant shall each appoint, thereafter fail to reach agreement within ten seven (107) business days of the Outside Agreement Date, then in connection with the Option Rent, Landlord’s Option Rent Calculation and Tenant’s Option Rent Calculation, each as most recently delivered to the other party pursuant to the TCCs of this Section 2.2, shall be submitted to the “Neutral Arbitrator,” as that term is defined in Section 2.2.4.1 of this Lease, pursuant to the TCCs of this Section 2.2.4. The submittals shall be made concurrently with the selection of the Neutral Arbitrator pursuant to this Section 2.2.4 and shall be submitted to arbitration in accordance with Section 2.2.4.1 through 2.2.4.4 of this Lease, but subject to the conditions, when appropriate, of Section 2.2.3.
2.2.4.1 Landlord and Tenant shall mutually and reasonably appoint one (1) arbitrator who shall by profession be a current real estate broker broker, appraiser or appraiser of commercial office properties in the immediate vicinity of the Project, and attorney who has shall have been active in such field over the last five (5) yearsyear period ending on the date of such appointment in the leasing (or appraisal, as the case may be) of first-class, institutionally-owned, high-rise commercial properties in the Comparable Area (the “Neutral Arbitrator”). The determination of the arbitrators Neutral Arbitrator shall be limited solely to the issue of whether Landlord’s Option Rent Calculation or Tenant’s Option Rent Calculation, each as submitted Market Rent to the Neutral Arbitrator pursuant to Section 2.2.4, above, is the closest to the actual Market Rent as determined by the arbitratorssuch Neutral Arbitrator, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall within five (5) business days Section 2.2.2 of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who this Lease. Such Neutral Arbitrator shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall appointed within fifteen (15) days after the applicable Outside Agreement Date. Neither the Landlord or Tenant or either party’s arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior to, or subsequent to, his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.4.2 The Neutral Arbitrator shall, within thirty (30) days of the appointment of the third arbitrator his/her appointment, reach a decision as to Market Rent and determine whether the parties shall use Landlord’s Option Rent Calculation or Tenant’s Option Rent Calculation, each as submitted to the Neutral Arbitrator pursuant to Section 2.2.4, above, is closest to Market Rent as determined by such Neutral Arbitrator and simultaneously publish a ruling (“Award”) indicating whether Landlord’s Option Rent Calculation or Tenant’s Option Rent Calculation is closest to the Market Rent as determined by such Neutral Arbitrator. Following notification of the Award, the Landlord’s Option Rent Calculation or Tenant’s Option Rent Calculation, whichever is selected by the Neutral Arbitrator as being closest to Market Rent, and shall notify Landlord and Tenant thereofbecome the then applicable Option Rent.
(iv) 2.2.4.3 The decision of the majority of the three (3) arbitrators Award issued by such Neutral Arbitrator shall be binding upon Landlord and Tenant.
(v) 2.2.4.4 If either Landlord or and Tenant fails fail to appoint an arbitrator the Neutral Arbitrator within ten fifteen (1015) days after the applicable Outside Agreement Date, either party may petition the arbitrator appointed by one presiding judge of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail Superior Court of San Francisco County to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but such Neutral Arbitrator subject to the instruction set forth criteria in Section 2.2.4.1 of this item (d).
(vii) Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Neutral Arbitrator. The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 2 contracts
Samples: Office Lease (Appdynamics Inc), Office Lease (Appdynamics Inc)
Determination of Market Rent. If In the event Tenant timely and appropriately objects exercises its option to extend the Market Lease but rejects the Option Rent set forth in Tenantthe Landlord’s AcceptanceOption Rent Calculation pursuant to Section 2.2.3, above, then Landlord and Tenant shall attempt to agree upon the Market Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one upon the Option Rent applicable to the Option Term on or before the date that is ninety (2190) days following Tenant’s Acceptance prior to the expiration of the initial Lease Term (the “Option Rent Outside Agreement Date”), then each party shall, within ten (10) business days following the Option Rent Outside Agreement Date, deliver to the other an updated Tenant’s Option Rent Calculation and Landlord’s Option Rent Calculation, respectively, and the parties shall meet and attempt to agree upon the Option Rent using their best good-faith efforts based upon such updated calculations. Thereafter, if Landlord and Tenant fail to reach agreement upon the Option Rent applicable to the Option Term on or before the date which is ten (10) business days following the Option Rent Outside Date, the Option Rent shall be determined by arbitration pursuant to the terms of this Section 2.2.4, below. Each party shall make a separate determination of the Market Rent which Option Rent, within five (5) business days following the Outside Agreement Date, and such determinations shall be submitted to each other and to arbitration in accordance with the following items (i) Section 2.2.4.1 through (vii):Section 2.2.4.4, below.
(i) 2.2.4.1 Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, appoint one arbitrator who shall by profession be a current an MAI appraiser, or real estate broker or appraiser who shall have been active over the five (5) year period ending on the date of commercial such appointment in the appraising and/or leasing of first class office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) yearsBuilding. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s last submitted Market Option Rent (i.e., prior to the Outside Agreement Date) is the closest to the actual Market Option Rent as determined by the arbitrators, taking into account the requirements of item Section 2.2.2 of this Lease. Each such arbitrator shall be appointed within fifteen (b15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable), above. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
(ii) 2.2.4.2 The two (2) arbitrators Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within five ten (510) business days of the date of the appointment of the last appointed arbitrator Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators except that (2i) arbitratorsneither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly, or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant during the five (5) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.4.3 Within ten (iii10) The three days following the appointment of the Arbitrator, Landlord and Tenant shall enter into an arbitration agreement (3the “Arbitration Agreement”) arbitrators which shall within set forth the following:
2.2.4.3.1 Each of Landlord’s and Tenant’s best and final and binding determination of the Option Rent exchanged by the parties pursuant to Section 2.2.4, above;
2.2.4.3.2 An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, and shall require the Neutral Arbitrator to demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant;
2.2.4.3.3 Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
2.2.4.3.4 That Landlord and Tenant shall each have the right to submit to the Neutral Arbitrator (with a copy to the other party), on or before the date that occurs fifteen (15) days of following the appointment of the third arbitrator reach a decision Neutral Arbitrator, an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord or Tenant, as to whether the parties shall use case may be, in support of Landlord’s or Tenant’s submitted Market Rentrespective determination of Option Rent (the “Briefs”);
2.2.4.3.5 That within five (5) business days following the exchange of Briefs, and shall notify Landlord and Tenant thereof.
shall each have the right to provide the Neutral Arbitrator (ivwith a copy to the other party) The decision with a written rebuttal to the other party’s Brief (the “First Rebuttals”); provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party’s Brief and shall identify clearly which argument or fact of the majority other party’s Brief is intended to be rebutted;
2.2.4.3.6 That within five (5) business days following the parties’ receipt of each other’s First Rebuttal, Landlord and Tenant, as applicable, shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s First Rebuttal (the “Second Rebuttals”); provided, however, such Second Rebuttals shall be limited to the facts and arguments raised in the other party’s First Rebuttal and shall identify clearly which argument or fact of the other party’s First Rebuttal is intended to be rebutted;
2.2.4.3.7 The date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Advocate Arbitrators, Landlord and Tenant, and each party’s applicable consultants, which date shall in any event be within forty-five (45) days following the appointment of the Neutral Arbitrator;
2.2.4.3.8 That no discovery shall take place in connection with the arbitration, other than to verify the factual information that is presented by Landlord or Tenant;
2.2.4.3.9 That the Neutral Arbitrator shall not be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant, except that the Neutral Arbitrator shall be permitted to visit the Project and the buildings containing the Comparable Transactions;
2.2.4.3.10 The specific persons that shall be allowed to attend the arbitration;
2.2.4.3.11 Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) arbitrators hours (“Tenant’s Initial Statement”);
2.2.4.3.12 Following Tenant’s Initial Statement, Landlord shall be binding upon have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours (“Landlord’s Initial Statement”);
2.2.4.3.13 Following Landlord’s Initial Statement, Tenant shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Landlord and (“Tenant.’s Rebuttal Statement”);
2.2.4.3.14 Following Tenant’s Rebuttal Statement, Landlord shall have up to two (v2) If either Landlord or Tenant fails additional hours to appoint an arbitrator within present additional arguments and/or to rebut the arguments of Tenant;
2.2.4.3.15 That, not later than ten (10) days after the applicable Outside Agreement Datedate of the arbitration, the arbitrator appointed Neutral Arbitrator shall render a decision (the “Ruling”) indicating whether Landlord’s or Tenant’s submitted Option Rent is closer to the Option Rent;
2.2.4.3.16 That following notification of the Ruling, Landlord’s or Tenant’s submitted Option Rent determination, whichever is selected by one the Neutral Arbitrator as being closer to the Option Rent shall become the then applicable Option Rent; and
2.2.4.3.17 That the decision of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision the Neutral Arbitrator shall be binding upon on Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 2 contracts
Samples: Office Lease (DoorDash Inc), Office Lease (DoorDash Inc)
Determination of Market Rent. If In the event Tenant timely and appropriately objects to the Market Rent in Tenant’s AcceptanceRent, Landlord and Tenant shall attempt to agree upon the Market Rent using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one sixty (2160) days following Tenant’s Acceptance objection to the Landlord’s Option Rent Calculation (the “Outside Agreement Date”), then each party shall make a separate determination of then, within two (2) business days following such Outside Agreement Date, (x) Landlord may re-calculate the Market Landlord’s Option Rent which shall be submitted Calculation by delivering written notice thereof to each other Tenant, and (y) Tenant may re-calculate the Tenant’s Option Rent Calculation by delivering written notice thereof to arbitration in accordance with the following items (i) through (vii):
(i) Tenant. If Landlord and Tenant shall each appoint, thereafter fail to reach agreement within ten seven (107) business days of the Outside Agreement Date, then in connection with the Option Rent, Landlord’s Option Rent Calculation and Tenant’s Option Rent Calculation, each as most recently delivered to the other party pursuant to the TCCs of this Section 2.2, shall be submitted to the “Neutral Arbitrator,” as that term is defined in Section 2.2.4.1 of this Lease, pursuant to the TCCs of this Section 2.2.4. The submittals shall be made concurrently with the selection of the Neutral Arbitrator pursuant to this Section 2.2.4 and shall be submitted to arbitration in accordance with Section 2.2.4.1 through 2.2.4.5 of this Lease, but subject to the conditions, when appropriate, of Section 2.2.3.
2.2.4.1 Landlord and Tenant shall mutually and reasonably appoint one (1) arbitrator who shall by profession be a current real estate broker broker, appraiser or appraiser attorney who shall have been active over the five (5) year period ending on the date of commercial such appointment in the leasing (or appraisal, as the case may be) of first-class office properties in the immediate vicinity of Comparable Area, as that term is defined in Exhibit H attached hereto (the Project, and who has been active in such field over the last five (5) years“Neutral Arbitrator”). The determination of the arbitrators Neutral Arbitrator shall be limited solely to the issue of whether Landlord’s Option Rent Calculation or Tenant’s Option Rent Calculation, each as submitted Market Rent to the Neutral Arbitrator pursuant to Section 2.2.4, above, is the closest to the actual Market Rent as determined by the arbitratorssuch Neutral Arbitrator, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall within five (5) business days Section 2.2.2 of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who this Lease. Such Neutral Arbitrator shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall appointed within fifteen (15) days after the applicable Outside Agreement Date. Neither the Landlord nor Tenant may, directly or indirectly, consult with the Neutral Arbitrator prior to, or subsequent to, his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Xxxxxxxx’s counsel and Xxxxxx’s counsel.
2.2.4.2 The Neutral Arbitrator shall, within thirty (30) days of the appointment of the third arbitrator his/her appointment, reach a decision as to Market Rent and determine whether the parties shall use Landlord’s Option Rent Calculation or Tenant’s Option Rent Calculation, each as submitted to the Neutral Arbitrator pursuant to Section 2.2.4, above, is closest to Market Rent as determined by such Neutral Arbitrator and simultaneously publish a ruling (“Award”) indicating whether Landlord’s Option Rent Calculation or Tenant’s Option Rent Calculation is closest to the Market Rent as determined by such Neutral Arbitrator. Following notification of the Award, the Landlord’s Option Rent Calculation or Tenant’s Option Rent Calculation, whichever is selected by the Neutral Arbitrator as being closest to Market Rent, and shall notify Landlord and Tenant thereofbecome the then applicable Second Option Rent.
(iv) 2.2.4.3 The decision of the majority of the three (3) arbitrators Award issued by such Neutral Arbitrator shall be binding upon Landlord and Tenant.
(v) 2.2.4.4 If either Landlord or and Tenant fails fail to appoint an arbitrator the Neutral Arbitrator within ten fifteen (1015) days after the applicable Outside Agreement Date, either party may petition the arbitrator appointed by one presiding judge of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail Superior Court of San Diego County to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but such Neutral Arbitrator subject to the instruction set forth criteria in Section 2.2.4.1 of this item (d).
(vii) Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Neutral Arbitrator. The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 2 contracts
Samples: Office Lease (Roka BioScience, Inc.), Office Lease (Roka BioScience, Inc.)
Determination of Market Rent. If In the event Tenant timely and appropriately objects to the Landlord's determination of Fair Market Rent in Tenant’s Acceptanceconnection with the Option Rent or First Offer Rent, Landlord and Tenant shall attempt to agree upon the Fair Market Rent using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one thirty (2130) days following Tenant’s Acceptance 's objection to the Landlord's Fair Market Rent determination (“the "Outside Agreement Date”"), then then, within five (5) business days following such Outside Agreement Date, Landlord and Tenant shall each party shall make concurrently submit a separate final, binding determination of the Fair Market Rent to the "Neutral Arbitrator," as that term is defined in Section 2.2.4.1 of this Lease, which determinations shall be submitted to each other and to arbitration in accordance with the following items (i) Section 2.2.4.1 through (vii):2.2.4.5, below.
(i) 2.2.4.1 Landlord and Tenant shall each appointmutually, within ten reasonably appoint one (101) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of commercial office properties in the immediate vicinity of the Project, who is disinterested and who has shall have been active in such field over the last five (5) yearsyear period ending on the date of such appointment in the valuation or appraisal of office leases in Comparable Buildings (the "Neutral Arbitrator"). The determination of the arbitrators Neutral Arbitrator shall be limited solely to the issue of whether Landlord’s 's Fair Market Rent calculation or Tenant’s submitted 's Fair Market Rent calculation, each as submitted to the Neutral Arbitrator pursuant to Section 2.2.4, above, is the closest to the actual Fair Market Rent defined in Section 2.2.2, above, as determined by the arbitrators, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who such Neutral Arbitrator. Such Neutral Arbitrator shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall appointed within fifteen (15) days after the applicable Outside Agreement Date. Neither the Landlord or Tenant may, directly or indirectly, consult with the Neutral Arbitrator prior to or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord's counsel and Tenant's counsel.
2.2.4.2 The Neutral Arbitrator shall, within thirty (30) days of the appointment of the third arbitrator his/her appointment, reach a decision as to Fair Market Rent and determine whether the parties shall use Landlord’s 's Fair Market Rent calculation or Tenant’s 's Fair Market Rent calculation, each as submitted to the Neutral Arbitrator pursuant to Section 2.2.4, above, is closest to the Option Rent as determined by such Neutral Arbitrator and simultaneously publish a ruling ("Award"). Following notification of the Award, the Landlord's Fair Market Rent calculation or Tenant's Fair Market Rent calculation, whichever is selected by the Neutral Arbitrator as being closest to Fair Market Rent, and shall notify Landlord and Tenant thereofbecome the then applicable Option Rent or First Offer Rent, as applicable.
(iv) 2.2.4.3 The decision of the majority of the three (3) arbitrators Award issued by such Neutral Arbitrator shall be binding upon Landlord and Tenant.
(v) 2.2.4.4 If either Landlord or and Tenant fails fail to appoint an arbitrator the Neutral Arbitrator within ten fifteen (1015) days after the applicable Outside Agreement Date, either party may petition the arbitrator appointed by one presiding judge of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail Superior Court of Alameda County to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but such Neutral Arbitrator subject to the instruction set forth criteria in Section 2.2.4.1 of this item (d)Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Neutral Arbitrator.
(vii) 2.2.4.5 The cost of arbitration the Neutral Arbitrator shall be paid by Landlord and Tenant equally.
Appears in 2 contracts
Samples: Office Lease (Zeltiq Aesthetics Inc), Office Lease (Zeltiq Aesthetics Inc)
Determination of Market Rent. If In the event Tenant timely and appropriately objects to the Landlord's determination of Fair Market Rent in Tenant’s Acceptanceconnection with the Option Rent, Landlord and Tenant shall attempt to agree upon the Fair Market Rent using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one thirty (2130) days following Tenant’s Acceptance 's objection to the Landlord's Fair Market Rent determination (“the "Outside Agreement Date”"), then then, within five (5) business days following such Outside Agreement Date, Landlord and Tenant shall each party shall make concurrently submit a separate final, binding determination of the Fair Market Rent to the "Neutral Arbitrator," as that term is defined in Section 2.2.4.1 of this Lease, which determinations shall be submitted to each other and to arbitration in accordance with the following items (i) Section 2.2.4.1 through (vii):2.2.4.5, below.
(i) 2.2.4.1 Landlord and Tenant shall each appointmutually, within ten reasonably appoint one (101) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of commercial office properties in the immediate vicinity of the Project, who is disinterested and who has shall have been active in such field over the last five (5) yearsyear period ending on the date of such appointment in the valuation or appraisal of office leases in Comparable Buildings (the "Neutral Arbitrator"). The determination of the arbitrators Neutral Arbitrator shall be limited solely to the issue of whether Landlord’s 's Fair Market Rent calculation or Tenant’s submitted 's Fair Market Rent calculation, each as submitted to the Neutral Arbitrator pursuant to Section 2.2.4, above, is the closest to the actual Fair Market Rent defined in Section 2.2.2, above, as determined by the arbitrators, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who such Neutral Arbitrator. Such Neutral Arbitrator shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall appointed within fifteen (15) days after the applicable Outside Agreement Date. Neither the Landlord nor Tenant may, directly or indirectly, consult with the Neutral Arbitrator prior to or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord's counsel and Tenant's counsel.
2.2.4.2 The Neutral Arbitrator shall, within thirty (30) days of the appointment of the third arbitrator his/her appointment, reach a decision as to Fair Market Rent and determine whether the parties shall use Landlord’s 's Fair Market Rent calculation or Tenant’s 's Fair Market Rent calculation, each as submitted to the Neutral Arbitrator pursuant to Section 2.2.4, above, is closest to the Option Rent as determined by such Neutral Arbitrator and simultaneously publish a ruling ("Award"). Following notification of the Award, the Landlord's Fair Market Rent calculation or Tenant's Fair Market Rent calculation, whichever is selected by the Neutral Arbitrator as being closest to Fair Market Rent, and shall notify Landlord and Tenant thereofbecome the then applicable Option Rent.
(iv) 2.2.4.3 The decision of the majority of the three (3) arbitrators Award issued by such Neutral Arbitrator shall be binding upon Landlord and Tenant.
(v) 2.2.4.4 If either Landlord or and Tenant fails fail to appoint an arbitrator the Neutral Arbitrator within ten fifteen (1015) days after the applicable Outside Agreement Date, either party may petition the arbitrator appointed by one presiding judge of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail Superior Court of Alameda County to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but such Neutral Arbitrator subject to the instruction set forth criteria in Section 2.2.4.1 of this item (d)Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Neutral Arbitrator.
(vii) 2.2.4.5 The cost of arbitration the Neutral Arbitrator shall be paid by Landlord and Tenant equally.
Appears in 2 contracts
Samples: Office Lease (Giga Tronics Inc), Office Lease (Giga Tronics Inc)
Determination of Market Rent. If In the event Tenant timely and appropriately objects or is deemed to have objected to the Market Rent in Tenant’s AcceptanceRent, Landlord and Tenant shall attempt to agree upon the Market Rent using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one sixty (2160) days following Tenant’s Acceptance 's objection or deemed objection to the Landlord's Option Rent Calculation (“the "Outside Agreement Date”"), then each party shall make a separate separate, final and binding determination of the Market Rent which Rent, within five (5) days following the Outside Agreement Date, and such determinations shall be submitted to each the other party and to arbitration in accordance with the following items (i) through (vii):arbitrators pursuant to the TCCs of this Section 2.2.4.
(i) 2.2.4.1 Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, appoint one arbitrator who shall by profession be a current commercial real estate lease broker or commercial real estate lease appraiser of commercial office properties in the immediate vicinity of the Project, and who has shall have been active in such field over the last five (5) yearsyear period ending on the date of such appointment in the leasing (or appraisal, as the case may be) of Comparable Buildings. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Market Rent Rent, is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item Section 2.2.2 of this Lease. Each such arbitrator shall be appointed within fifteen (b15) days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed ("Advocate Arbitrators"), above.
(ii) 2.2.4.2 The two (2) arbitrators Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within five ten (510) business days of the date of the appointment of the last appointed arbitrator Advocate Arbitrator agree upon and appoint a third arbitrator ("Neutral Arbitrator") who shall be qualified under a commercial real estate lease attorney who shall have been active over the same criteria set forth hereinabove five (5) year period ending on the date of such appointment in the leasing of Comparable Buildings, except that neither the Landlord or Tenant or either party's Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior to or subsequent to his or her appearance; provided, however, the Neutral Arbitrator shall retain an appraiser (the "Neutral Appraiser") to assist such Neutral Arbitrator (which Neutral Appraiser shall be selected by the Advocates Arbitrators). The Neutral Appraiser shall be retained for qualification the sole purpose of advising and assisting the Neutral Arbitrator, and such Neutral Appraiser shall not have an independent vote as the whether Landlord's or Tenant's submitted Market Rent is closest to the Market Rent. In no event shall either the Neutral Arbitrator or the Neutral Appraiser have represented (or have been engaged to represent) Landlord or Tenant during the five (5) year period preceding the Outside Agreement Date or have any business or ownership affiliation with either of the initial two Advocate Arbitrators during such five (25) arbitratorsyear period (as opposed to having had professional interaction with the same). The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord's counsel and Tenant's counsel.
(iii) 2.2.4.3 The three (3) arbitrators shall within fifteen (15) days parties shall, in connection with the determination of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, and enter into an arbitration agreement (the "Arbitration Agreement") which shall notify Landlord and Tenant thereof.set forth the following: [***]
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) 2.2.4.4 If either Landlord or Tenant fails fail to appoint an arbitrator Advocate Arbitrator within ten fifteen (1015) days after the applicable Outside Agreement Date, either party may petition the arbitrator appointed by one presiding judge of them shall reach a decisionthe Superior Court of San Diego County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.4.1 of this Lease, notify Landlord and Tenant thereofor if he or she refuses to act, and either party may petition any judge having jurisdiction over the parties to appoint such arbitrator’s decision shall be binding upon Landlord and TenantAdvocate Arbitrator.
(vi) 2.2.4.5 If the two arbitrators Advocate Arbitrators fail to agree upon and appoint a third arbitratorthe Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Diego County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.4.1 of this Lease, or both if he or she refuses to act, either party may petition any judge having jurisdiction over the parties fail to appoint an such arbitrator, then the appointment .
2.2.4.6 The costs of the third arbitrator or any arbitrator Neutral Arbitrator and Neutral Appraiser shall be dismissed and [***]. The costs of the matter to be decided Advocate Arbitrator representing the Tenant shall be forthwith submitted to arbitration under borne by the provisions Tenant. The Costs of the American Arbitration Association, but subject to Advocate Arbitrator representing the instruction set forth in this item (d).
(vii) The cost of arbitration Landlord shall be paid borne by Landlord and Tenant equallythe Landlord. The costs of petitioning any judge under Section 2.2.4.4 shall be [***]. The costs of petitioning any judge under Section 2.2.4.5 shall be [***].
Appears in 2 contracts
Samples: Lease Agreement (Bridgepoint Education Inc), Lease Agreement (Bridgepoint Education Inc)
Determination of Market Rent. If In the event Tenant timely and appropriately objects or is deemed to have objected to the Market Rent in Tenant’s AcceptanceRent, Landlord and Tenant shall attempt to agree upon the Market Rent using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one sixty (2160) days following Tenant’s Acceptance objection or deemed objection to the Landlord’s Option Rent Calculation (the “Outside Agreement Date”), then each party shall make a separate determination of then, within two (2) business days following such Outside Agreement Date, (x) Landlord may re-calculate the Market Landlord’s Option Rent which shall be submitted Calculation by delivering written notice thereof to each other Tenant, and (y) Tenant may re-calculate the Tenant’s Option Rent Calculation by delivering written notice thereof to arbitration in accordance with the following items (i) through (vii):
(i) Tenant. If Landlord and Tenant shall each appoint, thereafter fail to reach agreement within ten seven (107) business days of the Outside Agreement Date, then in connection with the Option Rent, Landlord’s Option Rent Calculation and Tenant’s Option Rent Calculation, each as most recently delivered to the other party pursuant to the TCCs of this Section 2.3, shall be submitted to the “Neutral Arbitrator,” as that term is defined in Section 2.3.4.1 of this Lease, pursuant to the TCCs of this Section 2.3.4. The submittals shall be made concurrently with the selection of the Neutral Arbitrator pursuant to this Section 2.3.4 and shall be submitted to arbitration in accordance with Section 2.3.4.1 through 2.3.4.5 of this Lease, but subject to the conditions, when appropriate, of Section 2.3.3.
2.3.4.1 Landlord and Tenant shall mutually and reasonably agree on the appointment of one (1) arbitrator who shall by profession be a current real estate broker broker, appraiser or appraiser of commercial office properties in the immediate vicinity of the Project, and attorney who has shall have been active in such field over the last five (5) yearsyear period ending on the date of such appointment in the leasing (or appraisal, as the case may be) of first-class commercial properties in the Comparable Area (the “Neutral Arbitrator”). The determination of the arbitrators Neutral Arbitrator shall be limited solely to the issue of whether Landlord’s Option Rent Calculation or Tenant’s Option Rent Calculation, each as submitted Market Rent to the Neutral Arbitrator pursuant to Section 2.2.4, above, is the closest to the actual Market Rent as determined by the arbitratorssuch Neutral Arbitrator, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall within five (5) business days Section 2.2.2 of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who this Lease. Such Neutral Arbitrator shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall appointed within fifteen (15) days after the applicable Outside Agreement Date. Neither the Landlord or Tenant or either party’s arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior to, or subsequent to, his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.3.4.2 The Neutral Arbitrator shall, within thirty (30) days of the appointment of the third arbitrator his/her appointment, reach a decision as to Market Rent and determine whether the parties shall use Landlord’s Option Rent Calculation or Tenant’s Option Rent Calculation, each as submitted to the Neutral Arbitrator pursuant to Section 2.2.4, above, is closest to Market Rent as determined by such Neutral Arbitrator and simultaneously publish a ruling (“Award”) indicating whether Landlord’s Option Rent Calculation or Tenant’s Option Rent Calculation is closest to the Market Rent as determined by such Neutral Arbitrator. Following notification of the Award, the Landlord’s Option Rent Calculation or Tenant’s Option Rent Calculation, whichever is selected by the Neutral Arbitrator as being closest to Market Rent, and shall notify Landlord and Tenant thereofbecome the then applicable Option Rent.
(iv) 2.3.4.3 The decision of the majority of the three (3) arbitrators Award issued by such Neutral Arbitrator shall be binding upon Landlord and Tenant.
(v) 2.3.4.4 If either Landlord or and Tenant fails fail to appoint an arbitrator the Neutral Arbitrator within ten fifteen (1015) days after the applicable Outside Agreement Date, either party may petition the arbitrator appointed by one presiding judge of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail Superior Court of San Diego County to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but such Neutral Arbitrator subject to the instruction set forth criteria in Section 2.2.4.1 of this item (d).
(vii) Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Neutral Arbitrator. The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 2 contracts
Samples: Office Lease (Anaptysbio Inc), Office Lease (Anaptysbio Inc)
Determination of Market Rent. If In the event Tenant timely and appropriately objects exercises its option to extend the Market Lease but rejects the Option Rent set forth in Tenant’s Acceptancethe Option Rent Notice pursuant to Section 2.2.3, above, then Landlord and Tenant shall attempt to agree upon the Market Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one upon the Option Rent applicable to the Option Term on or before the date that is ninety (2190) days following Tenant’s Acceptance prior to the expiration of the initial Lease Term (the “Outside Agreement Date”), then each the Option Rent shall be determined by arbitration pursuant to the terms of this Section 2.2.4. Each party shall make a separate determination of the Market Rent which Option Rent, within five (5) days following the Outside Agreement Date, and such determinations shall be submitted to each other and to arbitration in accordance with the following items (i) Section 2.2.4.1 through (vii):Section 2.2.4.4, below.
(i) 2.2.4.1 Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, appoint one arbitrator who shall by profession be a current MAI appraiser, real estate broker broker, or appraiser real estate lawyer who shall have been active over the five (5) year period ending on the date of commercial such appointment in the appraising and/or leasing of first class office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) yearsBuilding. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Market Option Rent is the closest to the actual Market Option Rent as determined by the arbitrators, taking into account the requirements of item Section 2.2.2 of this Lease. Each such arbitrator shall be appointed within fifteen (b15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable), above. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
(ii) 2.2.4.2 The two (2) arbitrators Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within five ten (510) business days of the date of the appointment of the last appointed arbitrator Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators except that (2i) arbitratorsneither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly, or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant during the seven (7) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.4.3 Within ten (iii10) The three days following the appointment of the Arbitrator, Landlord and Tenant shall enter into an arbitration agreement (3the “Arbitration Agreement”) arbitrators which shall within set forth the following:
2.2.4.3.1 Each of Landlord’s and Tenant’s best and final and binding determination of the Option Rent exchanged by the parties pursuant to Section 2.2.4, above;
2.2.4.3.2 An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, and shall require the Neutral Arbitrator to demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant;
2.2.4.3.3 Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
2.2.4.3.4 That Landlord and Tenant shall each have the right to submit to the Neutral Arbitrator (with a copy to the other party), on or before the date that occurs fifteen (15) days of following the appointment of the third arbitrator reach a decision Neutral Arbitrator, an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord or Tenant, as to whether the parties shall use case may be, in support of Landlord’s or Tenant’s submitted Market Rentrespective determination of Option Rent (the “Briefs”);
2.2.4.3.5 That within five (5) business days following the exchange of Briefs, and shall notify Landlord and Tenant thereof.
shall each have the right to provide the Neutral Arbitrator (ivwith a copy to the other party) The decision with a written rebuttal to the other party’s Brief (the “First Rebuttals”); provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party’s Brief and shall identify clearly which argument or fact of the majority other party’s Brief is intended to be rebutted;
2.2.4.3.6 That within five (5) business days following the parties’ receipt of each other’s First Rebuttal, Landlord and Tenant, as applicable, shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s First Rebuttal (the “Second Rebuttals”); provided, however, such Second Rebuttals shall be limited to the facts and arguments raised in the other party’s First Rebuttal and shall identify clearly which argument or fact of the other party’s First Rebuttal is intended to be rebutted;
2.2.4.3.7 The date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Advocate Arbitrators, Landlord and Tenant, and each party’s applicable consultants, which date shall in any event be within forty-five (45) days following the appointment of the Neutral Arbitrator;
2.2.4.3.8 That no discovery shall take place in connection with the arbitration, other than to verify the factual information that is presented by Landlord or Tenant;
2.2.4.3.9 That the Neutral Arbitrator shall not be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant, except that the Neutral Arbitrator shall be permitted to visit the Project and the buildings containing the Comparable Transactions;
2.2.4.3.10 The specific persons that shall be allowed to attend the arbitration;
2.2.4.3.11 Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) arbitrators hours (“Tenant’s Initial Statement”);
2.2.4.3.12 Following Tenant’s Initial Statement, Landlord shall be binding upon have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours (“Landlord’s Initial Statement”);
2.2.4.3.13 Following Landlord’s Initial Statement, Tenant shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Tenant (“Tenant’s Rebuttal Statement”);
2.2.4.3.14 Following Tenant’s Rebuttal Statement, Landlord and Tenant.shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Tenant (“Landlord’s Rebuttal Statement”);
(v) If either Landlord or Tenant fails to appoint an arbitrator within 2.2.4.3.15 That, not later than ten (10) days after the applicable Outside Agreement Datedate of the arbitration, the arbitrator appointed Neutral Arbitrator shall render a decision (the “Ruling”) indicating whether Landlord’s or Tenant’s submitted Option Rent is closer to the Option Rent;
2.2.4.3.16 That following notification of the Ruling, Landlord’s or Tenant’s submitted Option Rent determination, whichever is selected by one the Neutral Arbitrator as being closer to the Option Rent shall become the then applicable Option Rent; and
2.2.4.3.17 That the decision of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision the Neutral Arbitrator shall be binding upon on Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 2 contracts
Samples: Office Lease (Airgain Inc), Office Lease (Airgain Inc)
Determination of Market Rent. If Tenant timely and appropriately objects The rent payable for the Premises during the Renewal Term shall be adjusted to the Market Rent (as defined in Tenant’s AcceptanceSection 2.2.2) as of the Renewal Term Commencement Date. In order to determine the Market Rent for the Renewal Term, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one (21) days following Tenant’s Acceptance (“Outside Agreement Date”), then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Datedate on which the Renewal Notice is given by Xxxxxx, shall commence discussions to endeavor to agree upon the arbitrator appointed by one of them shall reach a decision, notify Market Rent. In the event that Landlord and Tenant thereofdo not agree upon such rate within twenty (20) days after the expiration of said ten (10) day period, on the twenty-fifth (25th) day after the expiration of said ten (10) day period, Landlord and Tenant shall each simultaneously submit to the other in writing its good faith estimate of the Market Rent. If the higher of said estimates is not more than one hundred and five percent (105%) of the lower of such arbitrator’s decision estimates, the Market Rent in question shall be binding upon Landlord and Tenant.
(vi) deemed to be the average of the submitted rates. If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitratorotherwise, then the appointment of the third arbitrator or any arbitrator rate shall be dismissed and the matter set by arbitration to be decided shall be forthwith submitted to arbitration under held in the provisions county where the Premises is located in accordance with the Real Estate Valuation Arbitration Rules of the American Arbitration Association, but subject to except that the instruction set forth in this item (d).
(vii) The cost of arbitration shall be paid conducted by a single arbitrator who shall be selected as follows. By the date that is thirty (30) days after the simultaneous submittal by Landlord and Tenant equallyof their respective estimates of the Market Rent (such date, the “Outside Appointment Date”), each shall designate a recognized real estate expert or broker who shall have generally recognized current competence in the valuation of rental properties similar to the Building and Project in the county where the Building is located. The two individuals so designated shall, within thirty (30) days after the last of them is designated, appoint a third expert or broker possessing the aforesaid qualifications to be the single arbitrator who alone shall pick (within twenty (20) days after the single arbitrator is selected) one of the two rates submitted by Landlord and Tenant, being the rate which is closer to the Market Rent as determined by the arbitrator using the definition set forth in Section 2.2.
Appears in 2 contracts
Samples: Office Lease (Artiva Biotherapeutics, Inc.), Office Lease (Artiva Biotherapeutics, Inc.)
Determination of Market Rent. If Tenant timely and appropriately objects to the Market Rent in Tenant’s Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one (21) days following Tenant’s Acceptance (“Outside Agreement Date”), then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of commercial office high-rise properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b)Section 2.2.2, above.
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions commercial rules of the American Arbitration Association, but subject to the instruction set forth in this item (d)Section 2.2.4.
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Samples: Assignment and Assumption of Lease (Pacific Mercantile Bancorp)
Determination of Market Rent. If Tenant timely and appropriately objects Tenant’s Response elects to the determine Market Rent in Tenant’s Acceptanceunder this provision, Landlord and Tenant shall negotiate in good faith to attempt to agree upon the Market Rent using their best good-faith effortsRent. If Landlord and Tenant fail to do not reach agreement within twenty-one (21) days following after delivery of Tenant’s Acceptance Response to Landlord (“Outside Agreement Date”), then each party shall make a separate determination of the Market Rent (which determination may include periodic adjustments) which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):terms. The determination of the arbitrators shall be limited solely to deciding whether Landlord’s or Tenant’s submitted Market Rent schedule is the closest to the actual Market Rent as determined by the arbitrators and the arbitrators shall have no ability to amend this Lease, modify the definition of Market Rent or to propose a middle ground.
(ia) Landlord and Tenant shall each appoint, within Within ten (10) days of the Outside Agreement Date, Date Landlord and Tenant shall each appoint one arbitrator who and shall notify the other party in writing of such selection. Each arbitrator shall by profession be a current real estate broker or appraiser of commercial office properties space in the immediate vicinity of the Project, and who has been active in such field the downtown Seattle and Lake Union submarkets of Seattle over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), above.
(iib) The two (2) arbitrators so appointed shall shall, within five (5) business days of the date of the appointment of the last appointed arbitrator arbitrator, agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification above and, in addition, shall not have acted on behalf of either party, except as a neutral arbitrator, in the initial prior three (3) years. If the two (2) arbitratorsarbitrators fail to agree upon and appoint a third arbitrator, then either party can petition a court to appoint the third arbitrator meeting the qualifications set forth herein.
(iiic) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenantdetermine which party’s submitted Market RentRent schedule is the closest to the actual Market Rent as determined by the arbitrators. The arbitrators shall consider all written materials submitted and may, and upon notice to both parties, request additional information be submitted in writing but shall not hold a hearing or take oral testimony. The arbitrators shall notify Landlord and Tenant thereof.
(iv) of their decision in writing. The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant. The arbitrators shall have no power to modify the provisions of this Lease.
(vd) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the single arbitrator appointed by one of them shall reach a decision, determine the Market Rent and shall notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vie) If Each party shall pay the two arbitrators fail to agree upon fees and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then expenses of the appointment arbitrator appointed by it and shall share equally the fees and expenses of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d)arbitrator.
(viif) If Base Rent has not been finalized prior to the first day of the Extension Term, Tenant will pay Base Rent at a rate equal to one hundred ten percent (110%) of the Base Rent in effect immediately prior to the Extension Term until Base Rent is determined. The cost amount of arbitration shall the new Base Rent will be paid by applied retroactively to the beginning of the Extension Term, and any adjustment will be made with the next installment of Base Rent due, after Base Rent is determined. Landlord and Tenant equallyshall within thirty (30) days after the determination of the Base Rent, execute an amendment to this Lease, documenting the new termination date and the Base Rent for the Extension Term.
Appears in 1 contract
Samples: Office Lease (Tableau Software Inc)
Determination of Market Rent. If Tenant timely and appropriately objects to the Market Rent in Tenant’s Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one (21) days following Tenant’s Acceptance (“Outside Agreement Date”), then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of comparable commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), aboveabove (i.e., the arbitrators may only select Landlord’s or Tenant’s determination of Market Rent and shall not be entitled to make a compromise determination).
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two (2) arbitrators fail to agree upon and appoint a third (3rd) arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Samples: Standard Office Lease (United Business Holdings, Inc)
Determination of Market Rent. If In the event Tenant timely and appropriately objects or is deemed to have objected to the Market Rent in Tenant’s AcceptanceRent, Landlord and Tenant shall attempt to agree upon the Market Rent using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one thirty (2130) days following Tenant’s Acceptance objection or deemed objection to the Landlord’s Option Rent Calculation (the “Outside Agreement Date”), then each party shall make a separate determination of then, within two (2) business days following such Outside Agreement Date, (x) Landlord may reestablish the Market Landlord’s Option Rent which shall be submitted Calculation by delivering written notice thereof to each other Tenant, and (y) Tenant may reestablish the Tenant’s Option Rent Calculation by delivering written notice thereof to arbitration in accordance with the following items (i) through (vii):
(i) Tenant. If Landlord and Tenant shall each appoint, thereafter fail to reach agreement within ten seven (107) business days of the Outside Agreement Date, then in connection with the Option Rent, Landlord’s Option Rent Calculation and Tenant’s Option Rent Calculation, each as most recently delivered to the other party pursuant to the TCCs of this Section 2.2, shall be submitted to the “Neutral Arbitrator,” as that term is defined in Section 2.2.4.1 of this Lease, pursuant to the TCCs of this Section 2.2.4. The submittals shall be made concurrently with the selection of the Neutral Arbitrator pursuant to this Section 2.2.4 and shall be submitted to arbitration in accordance with Section 2.2.4.1 through 2.2.4.4 of this Lease, but subject to the conditions, when appropriate, of Section 2.2.3.
2.2.4.1 Landlord and Tenant shall mutually and reasonably appoint one (1) arbitrator who shall by profession be a current real estate broker broker, appraiser or appraiser of commercial office properties in the immediate vicinity of the Project, and attorney who has shall have been active in such field over the last five (5) yearsyear period ending on the date of such appointment in the leasing (or appraisal, as the case may be) of first-class, institutionally-owned, comparable commercial properties in the Comparable Area (the “Neutral Arbitrator”). The determination of the arbitrators Neutral Arbitrator shall be limited solely to the issue of whether Landlord’s Option Rent Calculation or Tenant’s Option Rent Calculation, each as submitted Market Rent to the Neutral Arbitrator pursuant to Section 2.2.4, above, is the closest to the actual Market Rent as determined by the arbitratorssuch Neutral Arbitrator, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall within five (5) business days Section 2.2.2 of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who this Lease. Such Neutral Arbitrator shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall appointed within fifteen (15) days after the applicable Outside Agreement Date. Neither the Landlord or Tenant or either party’s arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior to, or subsequent to, his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.4.2 The Neutral Arbitrator shall, within thirty (30) days of the appointment of the third arbitrator his/her appointment, reach a decision as to Market Rent and determine whether the parties shall use Landlord’s Option Rent Calculation or Tenant’s Option Rent Calculation, each as submitted to the Neutral Arbitrator pursuant to Section 2.2.4, above, is closest to Market Rent as determined by such Neutral Arbitrator and simultaneously publish a ruling (“Award”) indicating whether Landlord’s Option Rent Calculation or Tenant’s Option Rent Calculation is closest to the Market Rent as determined by such Neutral Arbitrator. Following notification of the Award, the Landlord’s Option Rent Calculation or Tenant’s Option Rent Calculation, whichever is selected by the Neutral Arbitrator as being closest to Market Rent, and shall notify Landlord and Tenant thereofbecome the then applicable Option Rent.
(iv) 2.2.4.3 The decision of the majority of the three (3) arbitrators Award issued by such Neutral Arbitrator shall be binding upon Landlord and Tenant.
(v) 2.2.4.4 If either Landlord or and Tenant fails fail to appoint an arbitrator the Neutral Arbitrator within ten fifteen (1015) days after the applicable Outside Agreement Date, either party may petition the arbitrator appointed by one presiding judge of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail Superior Court of San Francisco County to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but such Neutral Arbitrator subject to the instruction set forth criteria in Section 2.2.4.1 of this item (d).
(vii) Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Neutral Arbitrator. The cost of arbitration the Neutral Arbitrator shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Samples: Sublease Agreement (Okta, Inc.)
Determination of Market Rent. If In the event Tenant timely and appropriately objects or is deemed to have objected to the Market Rent in Tenant’s AcceptanceRent, Landlord and Tenant shall attempt to agree upon the Market Rent using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one ten (2110) business days following Tenant’s Acceptance objection or deemed objection to the Landlord’s Option Rent Calculation (the “Outside Agreement Date”), then (i) in connection with the Option Rent, Landlord’s Option Rent Calculation and Tenant’s Option Rent Calculation, each party as previously delivered to the other party, shall be submitted to binding arbitration pursuant to the TCCs of this Section 2.3.4, and (ii) in connection with any other contested calculation of market Rent, the parties shall each make a separate determination of the Market Rent which and shall submit the same to the arbitrators pursuant to the TCCs of this Section 2.3.4. Such submittals shall be submitted to each other and to arbitration in accordance with Section 2.3.4.1 through 2.3.4.3 of this Lease, but subject to the following items conditions, when appropriate, of Section 2.3.3, above.
2.3.4.1 Pursuant to this Section 2.3.4, Landlord’s Option Rent Calculation and Tenant’s Option Rent Calculation shall each be submitted to binding arbitration to be held in accordance with the Commercial Arbitration Rules and Procedures of the San Francisco chapter of JAMs, provided, however, that the arbitrator shall by profession be a MAI certified Appraiser who shall have been active over the previous three (i3) through years in the valuation of similar commercial properties located in the vicinity of the Building. In the event the parties cannot reach an agreement in connection with the appointment of the arbitrator then, within ten (vii):
(i10) days after written notice by Landlord or Tenant to the other party of such disagreement, the appointment of the arbitrator shall be made as quickly as possible by JAMs. Both parties shall equally advance the costs of the Arbitration. The Option Rent shall be decided by the Arbitrator; provided, however that such Option Rent shall not exceed the range established by Landlord and Tenant’s submission of Landlord’s Option Rent Calculation and Tenant’s Option Rent Calculation, respectively. The MAI certified Appraisers shall each prepare an appraisal of the Market Rent pursuant to the conditions herein provided. The Arbitrators decision shall be the middle of the three appraised Market rents. In the event the parties cannot reach an agreement in connection with the appointment of the arbitrator then, within ten (10) days after written notice by Landlord or Tenant to the other party of such disagreement, the appointment of a neutral arbitrator shall be made as quickly as possible by JAMs. The parties may elect by mutual agreement to use only one appraiser. Notwithstanding the foregoing, for spaces under 20,000 rentable square feet, Landlord may elect at its option (but shall have no obligation so to do) to have the Market Rent and terms decided by an appraisal conducted by an MAI certified Appraiser (“Fast Track Appraiser”) who shall act as arbitrator and who meets the qualification as otherwise specified in this paragraph. The Fast Track Appraiser shall be selected by Landlord within ten (10) business days of Landlord’s election to pursue appointment of such Fast Track Appraiser. The Fast Track Appraiser shall have no relationship or past business relations with either party. Following the appointment of the Fast Track Appraiser, Landlord’s Option Rent Calculation and Tenant’s Option Rent Calculation shall promptly be delivered to such Fast Track Appraiser. Within fifteen (15) business days following the Fast Track Appraiser’s receipt of Landlord’s Option Rent Calculation and Tenant’s Option Rent Calculation, the Fast Track Appraiser shall determine whether the Landlord’s Option Rent Calculation or Tenant’s Option Rent Calculation as submitted is closest to the actual Market Rent for the space as reasonably determined by the Fast Track Appraiser. The Option Rent Calculation (as between Landlord’s Option Rent Calculation and Tenant’s Option Rent Calculation) that is closest to the Market Rent as determined by the Fast Track Appraiser shall be the Option Rent for the space during the Option Term. The determination of the Fast Track Appraiser shall be binding upon the parties. The Landlord shall administer the Fast Track Appraiser fairly in accordance with the terms herein and shall sign the engagement contract. Both parties shall equally advance and pay the costs of any such arbitration. Failure of one party to comply to advance and pay for the costs of any such arbitration shall result in a determination for the other party Option Rent.
2.3.4.2 In the event the Option Term commences prior to the arbitrator’s determination of the Option Rent, for such period commencing on the first day of the Option Term and continuing through the date of the arbitrator’s decision, Tenant shall each appointpay the Option Rent set forth in Landlord’s Option Rent Calculation and all other amounts to be paid by Tenant pursuant to the TCCs of this Lease, including, without limitation, Tenant’s Share of Direct Expenses. If the Option Rent set forth in Landlord’s Option Rent Calculation exceeds the Option Rent determined by the arbitrator, Landlord shall, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) years. The arbitrator’s determination of the arbitrators shall be limited solely to Option Rent, reimburse Tenant for the issue difference between (i) the aggregate Rent paid by Tenant since the commencement of whether the Option Term in connection with Landlord’s or Tenant’s submitted Market Option Rent is Calculation, and (ii) the closest to aggregate Rent that would have been paid by Tenant had the actual Market Option Rent as determined by the arbitrators, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall within five (5) business days arbitrator been in effect as of the date commencement of the appointment Option Term. Thereafter, the Option Rent shall be adjusted annually on each anniversary of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification commencement of the initial two (2) arbitrators.
(iii) The three (Option Term by 3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) % per year. The cost of arbitration shall be paid by Landlord the party whose proposed Option Rent Calculation is farthest from that rate as determined by the Arbitrator (“Non-Prevailing Party”). In addition and Tenant equallynot limited thereto, the Non-Prevailing Party shall reimburse the prevailing party any actual out of pocket costs advanced by the prevailing party to third parties in connection with the Option Rent Calculation and or related arbitration.
Appears in 1 contract
Samples: Office Lease (Life360, Inc.)
Determination of Market Rent. If In the event Tenant timely and appropriately objects or is deemed to have objected to the Market Rent in Tenant’s AcceptanceRent, Landlord and Tenant shall attempt to agree upon the Market Rent using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one sixty (2160) days following Tenant’s Acceptance objection or deemed objection to the *** Confidential portions of this document have been redacted and filed separately with the Commission. Landlord’s Option Rent Calculation (the “Outside Agreement Date”), then each party shall make a separate separate, final and binding determination of the Market Rent which Rent, and within five (5) days following the Outside Agreement Date, such determinations shall be submitted to each the other party and to arbitration in accordance with the following items (i) through (vii):arbitrators pursuant to the TCCs of this Section 2.2.4.
(i) 2.2.4.1 Landlord and Tenant shall each appoint, within ten appoint one (101) days of the Outside Agreement Date, one arbitrator who shall by profession be a current commercial real estate lease broker or commercial real estate lease appraiser of commercial office properties in the immediate vicinity of the Project, and who has shall have been active in such field over the last five (5) yearsyear period ending on the date of such appointment in the leasing (or appraisal, as the case may be) of Comparable Buildings. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent Rent, is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item Section 2.2.2 of this Lease. Each arbitrator shall be appointed within fifteen (b), above15) days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed the “Advocate Arbitrators”.
(ii) 2.2.4.2 The two (2) arbitrators Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within five ten (510) business days of the date of the appointment of the last appointed arbitrator Advocate Arbitrator agree upon and appoint a third (3rd) arbitrator (“Neutral Arbitrator”) who shall be qualified under a commercial real estate lease attorney who shall have been active over the same criteria set forth hereinabove five (5) year period ending on the date of such appointment in the leasing of Comparable Buildings, except that neither the Landlord or Tenant or either party’s Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior to or subsequent to his or her appearance; provided, however, the Neutral Arbitrator shall retain an appraiser (the “Neutral Appraiser”) to assist such Neutral Arbitrator (which Neutral Appraiser shall be selected by the Advocates Arbitrators). The Neutral Appraiser shall be retained for qualification the sole purpose of advising and assisting the initial two (2) arbitrators.
(iii) The three (3) arbitrators Neutral Arbitrator, and such Neutral Appraiser shall within fifteen (15) days of not have an independent vote as the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent is closest to the Market Rent. In no event shall either the Neutral Arbitrator or the Neutral Appraiser have represented (or have been engaged to represent) Landlord or Tenant during the five (5) year period preceding the Outside Agreement Date or have any business or ownership affiliation with either of the Advocate Arbitrators during such five (5) year period (as opposed to having had professional interaction with the same). The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.4.3 The parties shall, in connection with the determination of the Market Rent, enter into an arbitration agreement (the “Arbitration Agreement”) which shall set forth the following: (i) each party’s final and binding Market Rent determination, (ii) an agreement to be signed by the Neutral Arbitrator, the form of which agreement shall notify be attached as an Exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, (iii) instructions to be followed by the Neutral Arbitrator when conducting such arbitration, which instructions shall be mutually and reasonably prepared by Landlord and Tenant thereof.
and which instructions shall be consistent with the terms and conditions of this Lease, (iv) The decision that Landlord and Tenant shall each have the right to have its Advocate Arbitrator submit to the Neutral Arbitrator (with a copy to the other parties), on or before a date *** Confidential portions of this document have been redacted and filed separately with the majority Commission. agreed upon by Landlord and Tenant, an advocate statement (and any other information such Advocate Arbitrator deems relevant), in support of Landlord’s or Tenant’s respective Market Rent determination (the “Briefs”), (v) that within three (3) arbitrators business days following the exchange of Briefs by each of the Advocate Arbitrators, the Advocate Arbitrators representing Landlord and Tenant shall each have the right to provide the Neutral Arbitrator (with a copy to the other parties) with a written rebuttal to the other party’s Brief (the “First Rebuttals”); provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party’s Brief and shall identify clearly which argument or fact of the other party’s Brief is intended to be rebutted, (vi) that within three (3) business days following Landlord’s and/or Tenant’s receipt of the other party’s First Rebuttal, the Advocate Arbitrators representing Landlord and Tenant, as applicable, shall have the right to provide the Neutral Arbitrator (with a copy to the other parties) with a written rebuttal to the other party’s First Rebuttal (the “Second Rebuttals”); provided, however, such Second Rebuttals shall be limited to the facts and arguments raised in the other party’s First Rebuttal and shall identify clearly which argument or fact of the other party’s First Rebuttal is intended to be rebutted, (vii) the date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by the Advocate Arbitrators representing Landlord and Tenant, taking into consideration the schedules of the Landlord, the Tenant, the Neutral Arbitrator, and the Advocate Appraisers, which date shall in any event be within fifteen (15) business days following the appointment of the Neutral Arbitrator, (viii) that no discovery shall take place in connection with the arbitration, (ix) that the Neutral Arbitrator shall not be allowed to undertake an independent investigation or consider any factual information other than presented by the Advocate Arbitrators representing Landlord or Tenant and information provided by the Neutral Appraiser based upon such Neutral Appraiser’s review of the factual information presented by the Advocate Arbitrators representing Landlord or Tenant (except that the Neutral Arbitrator, with representatives from each of Landlord and Tenant, shall have the right to visit the Comparable Buildings), (x) the specific persons that shall be allowed to attend the arbitration, (xi) the Advocate Arbitrator representing Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed two (2) hours (“Tenant’s Initial Statements”), (xii) following Tenant’s Initial Statement, the Advocate Arbitrator representing Landlord shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed two (2) hours (“Landlord’s Initial Statements”), (xiii) following Landlord’s Initial Statements, the Advocate Arbitrator representing Tenant shall have up to one (1) additional hour to present additional arguments and/or to rebut the arguments offered in Landlord’s Initial Statements (“Tenant’s Rebuttal Statement”), (xiv) following Tenant’s Rebuttal Statement, the Advocate Arbitrator representing Landlord shall have up to one (1) additional hour to present additional arguments and/or to rebut the arguments offered in Tenant’s Initial Statements and Tenant’s Rebuttal Statement (“Landlord’s Rebuttal Statement”), (xv) that the Neutral Arbitrator shall render a decision (“Award”) indicating whether Landlord’s or Tenant’s submitted Market Rent is closest to the Market Rent as determined by the Neutral Arbitrator, (xvi) that following notification of the Award, the Landlord’s or Tenant’s submitted Market Rent determination, whichever is selected by the Neutral Arbitrator as being closest to the Market Rent, shall become the then applicable Market Rent, and (xvii) that the decision of the Neutral Arbitrator shall be binding upon on Landlord and Tenant.
(v) 2.2.4.4 If either Landlord or Tenant fails fail to appoint an arbitrator Advocate Arbitrator within ten fifteen (1015) days after the applicable Outside Agreement Date, either party may petition *** Confidential portions of this document have been redacted and filed separately with the arbitrator appointed by one Commission. the presiding judge of them shall reach a decisionthe Superior Court of San Diego County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.4.1 of this Lease, notify Landlord and Tenant thereofor if he or she refuses to act, and either party may petition any judge having jurisdiction over the parties to appoint such arbitrator’s decision shall be binding upon Landlord and TenantAdvocate Arbitrator.
(vi) 2.2.4.5 If the two arbitrators Advocate Arbitrators fail to agree upon and appoint a third arbitratorthe Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Diego County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.4.1 of this Lease, or both if he or she refuses to act, either party may petition any judge having jurisdiction over the parties fail to appoint an such arbitrator, then the appointment .
2.2.4.6 The costs of the third arbitrator or any arbitrator Neutral Arbitrator and Neutral Appraiser shall be dismissed and [***]. The costs of the matter to be decided Advocate Arbitrator representing the Tenant shall be forthwith submitted to arbitration under borne by the provisions Tenant. The Costs of the American Arbitration Association, but subject to Advocate Arbitrator representing the instruction set forth in this item (d).
(vii) The cost of arbitration Landlord shall be paid borne by Landlord and Tenant equallythe Landlord. The costs of petitioning any judge under Section 2.2.4.4 shall be [***]. The costs of petitioning any judge under Section 2.2.4.5 shall be [***].
Appears in 1 contract
Determination of Market Rent. If In the event Tenant timely and appropriately objects exercises its option to extend the Market Lease but rejects the Option Rent set forth in Tenantthe Landlord’s AcceptanceResponse Notice pursuant to Section 2.2.3, above, then Landlord and Tenant shall attempt to agree upon the Market Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one upon the Option Rent applicable to the Option Term on or before the date that is six (216) days following Tenant’s Acceptance months prior to the expiration of the Lease Term (the “Outside Agreement Date”), then each the Option Rent for the Premises shall be determined by arbitration pursuant to the terms of this Section 2.2.4. Each party shall make a separate determination of the Market Rent which Option Rent, within thirty (30) days following the Outside Agreement Date, and such determinations shall be binding and shall be submitted to each other and to arbitration in accordance with the following items (i) Section 2.2.4.1 through (vii):Section 2.2.4.5, below.
(i) 2.2.4.1 Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, appoint one arbitrator who shall by profession be a current MAI appraiser or real estate broker or appraiser who shall have been active over the ten (10) year period ending on the date of commercial such appointment in the appraising and/or leasing of office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) yearsBuilding. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Market Option Rent is the closest to the actual Market Option Rent as determined by the arbitrators, taking into account the requirements of item Section 2.2.2 of this Lease. Each such arbitrator shall be appointed within forty-five (b45) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable), above.
(ii) . The two (2) arbitrators so appointed selected by Landlord and Tenant pursuant to this Section 2.2.4 shall be deemed “Advocate Arbitrators” for purposes of this Section 2.2. If either party fails to timely appoint an Advocate Arbitrator, then the other party may deliver written notice of such failure to the party that failed to timely appoint an Advocate Arbitrator, and if such failure is not cured within five (5) business days following receipt of such written notice, then the Advocate Arbitrator timely appointed by the other party shall determine the Option Rent and such determination shall be binding upon the parties. If either party fails to timely submit its determination of the date Option Rent, then the other party shall have the right to deliver a notice to the failed party expressly referencing this Section 2.2.4.1 and the time period for performance hereunder, and if the failed party does not deliver its determination of the Option Rent within three (3) business days following its receipt of such notice, then the determination of the other party timely submitted shall be deemed to be the Option Rent.
2.2.4.2 The two Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the appointment of the last appointed arbitrator Advocate Arbitrator to agree upon and appoint a third arbitrator (for purposes of this Section 2.2, the “Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators except that (i) neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly, or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant or any of their affiliates during the five (5) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel. If the two (2) arbitratorsAdvocate Arbitrators cannot timely agree upon and appoint a Neutral Arbitrator, then Landlord and Tenant shall each apply to the Presiding Judge of the Superior Court of the County of San Francisco to appoint the Neutral Arbitrator.
2.2.4.3 Within ten (iii10) The three days following the appointment of the Arbitrator, Landlord and Tenant shall enter into an arbitration agreement (3for purposes of this Section 2.2, the “Arbitration Agreement”) arbitrators which shall within set forth the following:
2.2.4.3.1 Each of Landlord’s and Tenant’s best and final and binding determination of the Option Rent exchanged by the parties pursuant to Section 2.2.4, above;
2.2.4.3.2 An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, and shall require the Neutral Arbitrator to demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant or any of their affiliates;
2.2.4.3.3 Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
2.2.4.3.4 That Landlord and Tenant shall each have the right to submit to the Neutral Arbitrator (with a copy to the other party), on or before the date that occurs fifteen (15) days of following the appointment of the third arbitrator reach Neutral Arbitrator, an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord or Tenant, as the case may be, in support of Landlord’s or Tenant’s respective determination of Option Rent (the “Briefs”);
2.2.4.3.5 That within five (5) business days following the exchange of Briefs, Landlord and Tenant shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s Brief (the “First Rebuttals”); provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party’s Brief and shall identify clearly which argument or fact of the other party’s Brief is intended to be rebutted;
2.2.4.3.6 That within five (5) business days following the parties’ receipt of each other’s First Rebuttal, Landlord and Tenant, as applicable, shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s First Rebuttal (the “Second Rebuttals”); provided, however, such Second Rebuttals shall be limited to the facts and arguments raised in the other party’s First Rebuttal and shall identify clearly which argument or fact of the other party’s First Rebuttal is intended to be rebutted;
2.2.4.3.7 The date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Advocate Arbitrators, Landlord and Tenant, and each party’s applicable consultants, which date shall in any event be within forty-five (45) days following the appointment of the Neutral Arbitrator;
2.2.4.3.8 That no discovery shall take place in connection with the arbitration, other than to verify the factual information that is presented by Landlord or Tenant;
2.2.4.3.9 That the Neutral Arbitrator shall not be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant, except that the Neutral Arbitrator shall be permitted to visit the Project and the buildings containing the Comparable Transactions;
2.2.4.3.10 Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours (for purposes of this Section 2.2, “Tenant’s Initial Statement”);
2.2.4.3.11 Following Tenant’s Initial Statement, Landlord shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours (for purposes of this Section 2.2, “Landlord’s Initial Statement”);
2.2.4.3.12 Following Landlord’s Initial Statement, Tenant shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Tenant (for purposes of this Section 2.2, “Tenant’s Rebuttal Statement”);
2.2.4.3.13 Following Tenant’s Rebuttal Statement, Landlord shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Tenant;
2.2.4.3.14 That, not later than ten (10) business days after the date of the arbitration, the Neutral Arbitrator shall render a decision as to (the “Ruling”) indicating whether the parties shall use Landlord’s or Tenant’s submitted Option Rent is closer to the Neutral Arbitrator’s determination of what the Fair Market Rent should be for the Premises;
2.2.4.3.15 That following notification of the Ruling, Landlord’s or Tenant’s submitted Option Rent determination, whichever is selected by the Neutral Arbitrator as being closer to the Option Rent shall become the then applicable Option Rent, and shall notify Landlord and Tenant thereof.; and
(iv) The 2.2.4.3.16 That the decision of the majority of the three (3) arbitrators Neutral Arbitrator shall be binding upon on Landlord and Tenant.
(v) 2.2.4.3.17 If either Landlord a date by which an event described in Section 2.2.4.3, above, is to occur falls on a weekend or Tenant fails a holiday, the date shall be deemed to appoint be the next business day. If the parties fail to enter into an arbitrator Arbitration Agreement within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then following the appointment of the third arbitrator or any arbitrator Neutral Arbitrator, then the arbitration shall nonetheless proceed in accordance with this Section 2.2.4 notwithstanding such failure.
2.2.4.4 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term for the Premises, Tenant shall be dismissed required to pay the Base Rent then in effect; provided that such amount shall not be lower than the Option Rent initially provided by Tenant to Landlord nor higher than the Option Rent initially provided by Landlord to Tenant (or in the case of Expansion Space, at the Rent initially provided by Landlord to Tenant), and upon the final determination of the Option Rent (or Expansion Rent), the payments made by Tenant shall be reconciled with the actual amounts due, and the matter appropriate party shall make any corresponding payment to be decided shall be forthwith submitted to arbitration under the provisions other party within thirty (30) calendar days after the Option Rent (or Expansion Rent) has finally been determined.
2.2.4.5 Upon final determination of the American Arbitration AssociationOption Rent for the Premises, but subject to the instruction set forth in this item (d).
(vii) The cost of arbitration shall be paid by Landlord and Tenant equallyshall execute an amendment reflecting Tenant’s exercise of the applicable extension option and the extension of the Lease Term and the Option Rent for the Premises as finally determined; provided that the failure of either party to execute such amendment shall not affect the validity of the terms of this Lease that apply to the Option Terms.
Appears in 1 contract
Samples: Office Lease (Unity Software Inc.)
Determination of Market Rent. If Upon notification from Tenant timely and appropriately objects of the exercise of a renewal option, Landlord shall within ten (10) days thereafter notify Tenant in writing of the proposed Market Rate applicable to the Market Rent renewal term in Tenant’s Acceptance, Landlord and question; Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one (21) days following Tenant’s Acceptance (“Outside Agreement Date”), then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appointshall, within ten (10) days following receipt of such notice from Landlord, notify Landlord in writing of the Outside Agreement Dateacceptance or rejection of the proposed Market Rate. If Tenant fails to respond to Landlord's designation of Market Rate within said 10-day period, one arbitrator who Tenant shall be deemed to have accepted Landlord's designation of Market Rate for all purposes. In event of rejection by profession Tenant, the Market Rate for the renewal term in question shall be determined as follows:
(a) Within ten (10) days following notification of Tenant's rejection, Landlord and Tenant shall each appoint an appraiser. Any appraiser appointed hereunder (whether by a party hereto or by an appraiser so appointed, as hereinafter provided) shall be impartial, have an office in Tarrant County, shall have at least ten (10) years' experience as a real estate appraiser of warehouse/industrial buildings in the Tarrant County area (or shall have at least ten (10) years' experience in leasing warehouse/industrial space in the Tarrant County area), and shall be a current real estate broker or appraiser of commercial office properties in the immediate vicinity member of the ProjectAmerican Institute of Real Estate Appraisers or a successor or similar organization of recognized national standing, some of whose members are frequently employed for appraisal purposes by federal or state governments. The two appraisers appointed shall meet promptly and who has been active attempt to agree on a determination of the Market Rate for the renewal term in such field over the last five (5) yearsquestion. The determination of Market Rate by the arbitrators two appraisers, if they agree, shall be limited solely binding on Landlord and 51 Tenant. If the Market Rate determinations of the two appraisers differ by an amount equal to or less than five percent (5%) of the higher of the two determinations of Market Rate, then the Market Rate shall be equal to the issue arithmetic mean of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), abovetwo determinations.
(iib) The If the two appraisers cannot agree upon the Market Rate for the renewal term in question within ten (210) arbitrators so appointed days following their appointment, or if their determinations of Market Rate differ by more than five percent (5%) of the higher of the two determinations of Market Rate, then the two appointees shall select a third appraiser, but if they are unable to agree on a third appraiser within five (5) business days days, then each appraiser shall select the names of two willing persons qualified to be appraisers hereunder and from the four persons so named, one name shall be drawn by lot by a representative of Tenant in the presence of a representative of Landlord, and the person whose name is so drawn shall be the third appraiser. If either of the date first two appraisers fails to select the names of two willing, qualified appraisers and to cooperate with the appointment of the last appointed arbitrator agree upon and appoint other appraiser so that a third arbitrator who appraiser can be selected by lot, as aforesaid, the third appraiser shall be qualified under selected by lot from the same criteria set forth hereinabove two appraisers which were selected by the other appraiser for qualification of the initial two (2) arbitrators.
(iii) drawing. The three (3) arbitrators appraisers so selected shall within fifteen (15) days of confer and immediately proceed to determine the appointment of Market Rate for the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of renewal term in question. If the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails appraisers fail to appoint an arbitrator agree on such Market Rate within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator appraiser, the average of the two determinations of Market Rate which are closer to each other than the third determination of Market Rate shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under Market Rate for the provisions of the American Arbitration Association, but subject to the instruction set forth renewal term in this item (d)question.
(viic) The cost appraisers selected hereunder shall deliver a signed written report of arbitration their appraisal, or the average of the two closer appraisals, as the case may be, to Tenant and Landlord. The fee of the appraiser initially selected by Tenant shall be paid by Tenant, the fee of the appraiser initially selected by Landlord shall be paid by Landlord, and the fee of any third appraiser and any expenses reasonably incident to the appraisal (except attorneys' fees, which shall be borne by the party incurring the same) shall be shared equally by Tenant equallyand Landlord. Any vacancy in the office of the appraiser appointed by Tenant shall be filled by Tenant, any vacancy in the office of the appraiser appointed by Landlord shall be filled by Landlord, and any vacancy in the office of the third appraiser shall be filled by the first two appraisers in the manner specified above for the selection of a third appraiser.
(d) If appraisal proceedings are initiated as provided above in order to determine the Market Rate which is applicable to the renewal term in question, the decision and award of the appraisers as to such Market Rate shall be final, conclusive, and binding on the parties, absent settlement by agreement of the parties prior to the rendering by the appraisers of any such decision and award. If the Market Rate is not finally determined prior to the commencement of the renewal term in question, Tenant shall pay Base Rent based upon Base Rent theretofore in effect under this Lease until the final determination of the Market Rate for the renewal term in question occurs as provided above. If the final determination of such Market Rate is different from the amount paid by Tenant, Tenant shall promptly pay to Landlord any deficiency in Base Rent or Landlord shall promptly pay to Tenant any overpayment of Base Rent from the commencement of the renewal term in question until such final determination.
(e) If the Market Rate for either renewal Term is established using the appraisal mechanism set forth above, each party shall act diligently and in good faith (and shall cause the appraiser appointed by such party to so act) such that the Market Rate for the renewal term in question is established at least ten (10) months prior to expiration of the then current Term.
Appears in 1 contract
Determination of Market Rent. If Tenant timely and appropriately objects to the Market Rent in Tenant’s Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one (21) days following Tenant’s Acceptance (“Outside Agreement Date”), then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of comparable commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five ten (510) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), aboveabove (i.e., the arbitrators may only select Landlord’s or Tenant’s determination of Market Rent and shall not be entitled to make a compromise determination).
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two (2) arbitrators fail to agree upon and appoint a third (3rd ) arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Determination of Market Rent. If Tenant timely and appropriately objects has elected or has deemed to the have elected to determine Market Rent in Tenant’s Acceptanceunder this provision, Landlord and Tenant shall negotiate in good faith to attempt to agree upon the Market Rent using their best good-faith effortsRent. If Landlord and Tenant fail to do not reach agreement within twenty-one thirty (2130) days following after delivery of Tenant’s Acceptance to Landlord (or, if Tenant fails to deliver Tenant’s Acceptance, thirty (30) days after expiration of the deadline by which Tenant was to have provided Tenant’s Acceptance) (the “Outside Agreement Date”), then each party shall make a separate determination of the Market Rent (which determination may include periodic adjustments) which shall be submitted to each other other. If the Market Rent determined by Landlord and the Market Rent determined by Tenant differ by $50,000 per annum or less, then the Market Rent shall be the average of the Market Rent submitted by each party. If the Market Rent determined by Landlord and the Market Rent determined by Tenant differ by more than $50,000 per annum, then the matter will be submitted to arbitration in accordance with the following items (i) through (vii):terms. The determination of the arbitrators shall be limited solely to deciding whether Landlord’s or Tenant’s submitted Market Rent schedule is the closest to the actual Market Rent as determined by the arbitrators and the arbitrators shall have no ability to amend this Lease, modify the definition of Market Rent or to propose a middle ground.
(ia) Landlord and Tenant shall each appoint, within Within ten (10) days of the Outside Agreement Date, Date Landlord and Tenant shall each appoint one arbitrator who and shall notify the other party in writing of such selection. Each arbitrator shall by profession be a current real estate broker or appraiser of commercial office properties space in the immediate vicinity of the Project, and who has been active in such field the downtown Seattle and South Lake Union submarkets of Seattle over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), above.
(iib) The two (2) arbitrators so appointed shall shall, within five (5) business days of the date of the appointment of the last appointed arbitrator arbitrator, agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification above and, in addition, shall not have acted on behalf of either party, except as a neutral arbitrator, in the initial prior three (3) years. If the two (2) arbitratorsarbitrators fail to agree upon and appoint a third arbitrator, then either party can petition a court to appoint the third arbitrator meeting the qualifications set forth herein.
(iiic) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenantdetermine which party’s submitted Market RentRent schedule is the closest to the actual Market Rent as determined by the arbitrators. The arbitrators shall consider all written materials submitted and, and upon notice to both parties, may request additional information be submitted in writing but shall not hold a hearing or take oral testimony. The arbitrators shall notify Landlord and Tenant thereof.
(iv) of their decision in writing. The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant. The arbitrators shall have no power to modify the provisions of this Lease.
(vd) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the single arbitrator appointed by one of them shall reach a decision, determine the Market Rent and shall notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vie) If Each party shall pay the two arbitrators fail to agree upon fees and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then expenses of the appointment arbitrator appointed by it and shall share equally the fees and expenses of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d)arbitrator.
(viif) The cost If Base Rent has not been finalized prior to the first day of arbitration shall the applicable Extension Term, Tenant will pay Base Rent in effect immediately prior to the Extension Term until Base Rent is determined. Once finalized, the amount of the new Base Rent will be paid by applied retroactively to the beginning of the Extension Term, and any adjustment will be made with the next installment of Base Rent due, after Base Rent is determined. Landlord and Tenant equallyshall within thirty (30) days after the determination of the Base Rent, execute an amendment to this Lease, documenting the new termination date and the Base Rent for the Extension Term.
Appears in 1 contract
Samples: Office Lease (Redfin CORP)
Determination of Market Rent. If Tenant timely and appropriately objects has elected or has deemed to the have elected to determine Market Rent in Tenant’s Acceptanceunder this provision, Landlord and Tenant shall negotiate in good faith to attempt to agree upon the Market Rent using their best good-faith effortsRent. If Landlord and Tenant fail to do not reach agreement within twenty-one thirty (2130) days following after delivery of Tenant’s Acceptance to Landlord (or, if Tenant fails to deliver Tenant’s Acceptance, thirty (30) days after expiration of the deadline by which Tenant was to have provided Tenant’s Acceptance) (the “Outside Agreement Date”), then each party shall make a separate determination of the Market Rent (which determination may include periodic adjustments) which shall be submitted to each other other. If the Market Rent determined by Landlord and the Market Rent determined by Tenant differ by $50,000 per annum or less, then the Market Rent shall be the average of the Market Rent submitted by each party. If the Market Rent determined by Landlord and the Market Rent determined by Tenant differ by more than $50,000 per annum, then the matter will be submitted to arbitration in accordance with the following items (i) through (vii):terms. The determination of the arbitrators shall be limited solely to deciding whether Landlord’s or Tenant’s submitted Market Rent schedule is the closest to the actual Market Rent as determined by the arbitrators and the arbitrators shall have no ability to amend this Lease, modify the definition of Market Rent or to propose a middle ground.
(ia) Landlord and Tenant shall each appoint, within Within ten (10) days of the Outside Agreement Date, Date Landlord and Tenant shall each appoint one arbitrator who and shall notify the other party in writing of such selection. Each arbitrator shall by profession be a current real estate broker or appraiser of commercial office properties space in the immediate vicinity of the Project, and who has been active in such field the downtown Seattle and South Lake Union submarkets of Seattle over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), above.
(iib) The two (2) arbitrators so appointed shall shall, within five (5) business days of the date of the appointment of the last appointed arbitrator arbitrator, agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification above and, in addition, shall not have acted on behalf of either party, except as a neutral arbitrator, in the initial prior three (3) years. If the two (2) arbitratorsarbitrators fail to agree upon and appoint a third arbitrator, then either party can petition a court to appoint the third arbitrator meeting the qualifications set forth herein.
(iiic) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenantdetermine which party’s submitted Market RentRent schedule is the closest to the actual Market Rent as determined by the arbitrators. The arbitrators shall consider all written materials submitted and, and upon notice to both parties, may request additional information be submitted in writing but shall not hold a hearing or take oral testimony. The arbitrators shall notify Landlord and Tenant thereof.
(iv) of their decision in writing. The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant. The arbitrators shall have no power to modify the provisions of this Lease.
(vd) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the single arbitrator appointed by one of them shall reach a decision, determine the Market Rent and shall notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vie) Each party shall pay the fees and expenses of the arbitrator appointed by it and shall share equally the fees and expenses of the third arbitrator.
(f) If Base Rent has not been finalized prior to the two arbitrators fail first day of the applicable Extension Term, Tenant will pay Base Rent in effect immediately prior to agree upon the Extension Term until Base Rent is determined. Once finalized, the amount of the new Base Rent will be applied retroactively to the beginning of the Extension Term, and appoint any adjustment will be made with the next installment of Base Rent due, after Base Rent is determined. Landlord and Tenant shall within thirty (30) days after the determination of the Base Rent, execute an amendment to this Lease, documenting the new termination date and the Base Rent for the Extension Term. 39. Right of First Offer.
39.1 ROFO Provisions Applicable to Any Space in the Building. Provided that Tenant is not in material default beyond applicable notice and cure periods under the terms and conditions of this Lease, then Tenant shall have an ongoing right of first offer (the “ROFO”) to lease all or a portion of any other space in the Building; provided, however, the ROFO shall be subject and subordinate to all leases, options and rights of other third arbitratorparties in existence as of the date of mutual execution of this Lease, which Landlord represents and warrants are set forth on Exhibit L attached to this Lease (the “Superior ROFOs”). If, at any time during the Term, Landlord shall receive an offer from any third party to lease all or both parties fail any part of the Building (and, if such third party offer includes space on other floors, Landlord shall include the other floor space in its offer to appoint Tenant), which offer Landlord intends to further negotiate, then, prior to commencing any negotiations with such third party, Landlord shall deliver to Tenant an arbitratoroffer to lease such space (the “ROFO Space”) to Tenant on the same terms as the Premises under this Lease (the “Offer”), and Tenant may, within ten (10) business days thereafter, elect by written notice to Landlord to lease the entire space described in the Offer, provided that:
(i) if Tenant accepts an Offer before the third (3rd) anniversary of the Commencement Date of this Lease, then the appointment of the third arbitrator or any arbitrator applicable ROFO Space shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject added to the instruction Premises on the same terms and conditions as those set forth in this item (d).Lease as to the Initial Premises, including as to the Base Rent rate, provided, however, that the Base Rent shall be at Market Rate and the term applicable to such ROFO Space shall be co-terminus with the Term for the Initial Premises, provided, further, that Tenant shall receive proportionate additional parking rights and the per-rentable square foot Allowance with respect to the ROFO Space shall be proportionately reduced on a pro rata basis to reflect the shorter term remaining on the Lease; and
(viiii) The cost if Tenant accepts an Offer on or after the third (3rd) anniversary of arbitration the Commencement Date of this Lease, then the applicable ROFO Space shall be paid by Landlord added to the Premises on the same terms and Tenant equallyconditions as those set forth in this Lease as to the Initial Premises, including as to proportionate additional parking rights, except that:
(A) the Base Rent (inclusive of any construction allowance or other concessions) shall be Market Rent; and
(B) the Term of this Lease as to such ROFO Space only shall expire on the later of (x) expiration date of the then-effective Term as to the existing Premises, or (y) the end of the term of the lease as to such ROFO Space as proposed in the Offer.
Appears in 1 contract
Samples: Office Lease
Determination of Market Rent. If Tenant timely and appropriately objects to the Market Rent in Tenant’s Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one (21) days following Tenant’s Acceptance (“Outside Agreement Date”), then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of commercial office properties in within the immediate vicinity of the ProjectMarket, and who has been active in such field over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (dSection 8(c).
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Samples: Standard Office Lease (Investment Technology Group Inc)
Determination of Market Rent. If In the event Tenant timely and appropriately objects or is deemed to have objected to the Market Rent in Tenant’s AcceptanceRent, Landlord and Tenant shall attempt to agree upon the Market Rent using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one sixty (2160) days following Tenant’s Acceptance 's receipt of the Landlord Response Notice (“Outside Agreement Date”the "OUTSIDE AGREEMENT DATE"), then each party shall make a separate determination the issue of the Market Option Rent which shall be submitted to each other arbitration pursuant to the TCCs of this Section 2.2.4, but subject to the conditions, when appropriate, of Sections 2.2.2 and to arbitration in accordance with the following items (i) through (vii):2.2.3.
(i) 2.2.4.1 Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, mutually appoint one arbitrator (the "ARBITRATOR") who shall by profession be a current real estate broker or licensed Southern California MAI appraiser who shall have been active over the five (5)-year period ending on the date of commercial such appointment in the leasing of first-class office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) yearsComparable Area. The determination of the arbitrators Arbitrator shall be limited solely to the issue of whether Landlord’s 's Option Rent Calculation or Tenant’s submitted Market 's Option Rent Calculation, is the closest to the actual Market Rent as determined by the arbitratorsArbitrator, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall within five (5) business days Section 2.2.2 of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who this Lease. Such Arbitrator shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall appointed within fifteen (15) days after the applicable Outside Agreement Date. Landlord and Tenant may not directly or indirectly, consult with the Arbitrator prior to, or subsequent to, his or her appointment.
2.2.4.2 The Arbitrator shall within thirty (30) days of the appointment of the third arbitrator reach a decision as to Market Rent and determine whether the parties shall use Landlord’s 's Option Rent Calculation or Tenant’s 's Option Rent Calculation as submitted pursuant to Section 2.2.4 of this Lease is closest to Market Rent as determined by the Arbitrator and simultaneously publish a ruling ("AWARD") indicating whether Landlord's Option Rent Calculation or Tenant's Option Rent Calculation is closest to the Market Rent as determined by the Arbitrator. Following notification of the Award, the Landlord's Option Rent Calculation or Tenant's Option Rent Calculation, whichever is selected by the Arbitrator as being closest to Market Rent shall become the then applicable Market Rent, and shall notify Landlord and Tenant thereof.
(iv) 2.2.4.3 The decision of Award issued by the majority of the three (3) arbitrators Arbitrator shall be binding upon Landlord and Tenant.
(v) 2.2.4.4 If either Landlord or and Tenant fails fail to appoint an arbitrator Arbitrator within ten fifteen (1015) days after the applicable Outside Agreement Date, either party may petition the arbitrator appointed by one presiding judge of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail Superior Court of San Diego County to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but such Arbitrator subject to the instruction set forth criteria in Section 2.2.4.1 of this item (d)Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Arbitrator.
(vii) 2.2.4.5 The cost of arbitration shall be paid (i) by Landlord and if Tenant's Option Rent Calculation is closest to the Market Rent as determined by the Arbitrator, or (ii) by Tenant equallyif Landlord's Option Rent Calculation is closest to the Market Rent as determined by the Arbitrator.
Appears in 1 contract
Determination of Market Rent. If Tenant timely and appropriately objects to the Market Rent in Tenant’s Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one (21) days following Tenant’s Acceptance (“Outside Agreement Date”), then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten twenty (1020) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of comparable commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), aboveabove (i.e., the arbitrators may only select Landlord’s or Tenant’s determination of Market Rent and shall not be entitled to make a compromise determination).
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten twenty (1020) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two (2) arbitrators fail to agree upon and appoint a third (3rd) arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Samples: Standard Office Lease (Move Inc)
Determination of Market Rent. If Tenant timely and appropriately objects to the Market Option Rent in Tenant’s 's Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one (21) days following Tenant’s 's Acceptance (“"Outside Agreement Date”"), then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of commercial office comparable properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) years, and who has not been retained or employed by either party during the prior twelve (12) months. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s 's decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Determination of Market Rent. If Tenant timely and appropriately objects to the Market Rent in Tenant’s 's Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one thirty (2130) days following Tenant’s 's Acceptance (“"Outside Agreement Date”"), then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of comparable commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), aboveabove (i.e., the arbitrators may only select Landlord's or Tenant's determination of Market Rent and shall not be entitled to make a compromise determination).
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s 's decision shall be binding upon Landlord and Tenant.
(vi) If the two (2) arbitrators fail to agree upon and appoint a third (3rd) arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Determination of Market Rent. If Tenant timely and appropriately objects to the Market Rent in Tenant’s 's Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one (21) days following Tenant’s 's Acceptance (“"Outside Agreement Date”"), then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s 's decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Samples: Office Lease (MFC Development Corp)
Determination of Market Rent. If Tenant timely and appropriately objects to the Market Rent in Tenant’s AcceptanceRent Notice, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one (21) days following Tenant’s Acceptance (“on the Market Rent prior to the Outside Agreement Date”), then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of comparable commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), aboveabove (i.e., the arbitrators may only select Landlord’s or Tenant’s determination of Market Rent and shall not be entitled to make a compromise determination).
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Determination of Market Rent. If Tenant timely In the event that neither the Tenant's Option Rent Calculation or the Landlord's Option Rent Calculation are accepted by both Landlord and appropriately objects to the Market Rent in Tenant’s Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one thirty (2130) days following Landlord's objection or deemed objection to the Tenant’s Acceptance 's Option Rent Calculation (“the "Outside Agreement Date”"), then (i) in connection with the Option Rent, Landlord's Option Rent Calculation and Tenant's Option Rent Calculation, each party as previously delivered to the other party, shall be submitted to the arbitrators pursuant to this Section 4, and (ii) in connection with any other contested calculation of Market Rent, the parties shall each make a separate determination of the Market Rent which and shall submit the same to the arbitrators pursuant to this Section 4. The submittals shall be made concurrently with the selection of the arbitrators pursuant to this Section 4 and shall be submitted to each other and to arbitration in accordance with the following items (iSection 4(a) through (vii):4(f) below, but subject to the conditions, when appropriate, of Section 3 above.
(ia) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, appoint one arbitrator who shall by profession be a current real estate broker broker, appraiser or appraiser of commercial office properties in the immediate vicinity of the Project, and attorney who has shall have been active in such field over the last five (5) yearsyear period ending on the date of such appointment in the leasing (or appraisal, as the case may be) of the Comparable Buildings (as defined herein). The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Market Rent Rent, is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item Section 2 above. Each such arbitrator shall be appointed within fifteen (b), above15) days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant are referred to herein as the "Advocate Arbitrators".
(iib) The two (2) arbitrators Advocate Arbitrators so appointed shall be specifically required within five ten (510) business days of the date of the appointment of the last appointed arbitrator Advocate Arbitrator to agree upon and appoint a third arbitrator ("Neutral Arbitrator") who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators except that neither the Landlord or Tenant or either party's Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior to or subsequent to his or her appearance; provided, however, the Neutral Arbitrator shall be an attorney or a retired judge (2as opposed to a real estate broker or appraiser), and such attorney or retired judge shall retain an appraiser (the "Neutral Appraiser") arbitratorsto assist such Neutral Arbitrator (which Neutral Appraiser shall be selected by the Advocate Arbitrators). The Neutral Appraiser shall be retained for the sole purpose of advising and assisting the Neutral Arbitrator, and such Neutral Appraiser shall not have an independent vote as to whether Landlord's or Tenant's submitted Market Rent is closest to the Market Rent. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord's counsel and Tenant's counsel.
(c) The parties shall, in connection with the determination of the Market Rent, enter into an arbitration agreement (the "Arbitration Agreement") which shall set forth the following: (i) each party's final and binding Market Rent determination, (ii) an agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an Exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, (iii) The instructions to be followed by the Neutral Arbitrator when conducting such arbitration, which instructions shall be mutually and reasonably prepared by Landlord and Tenant and which instructions shall be consistent with the terms and conditions of this Lease, (iv) that Landlord and Tenant shall each have the right to submit to the Advocate Arbitrator (with a copy to the other party), on or before a date agreed upon by Landlord and Tenant, an advocate statement (and any other information such party deems. relevant) prepared by or on behalf of Landlord and Tenant, as the case may be, in support of Landlord's or Tenant's respective Market Rent determination (the "Briefs"), (v) that within three (3) arbitrators business days following Landlord's and Tenant's exchange of Briefs, Landlord and Tenant shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party's Brief (the "First Rebuttals"); provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party's Brief and shall identify clearly which argument or fact of the other party's Brief is intended to he rebutted, (vi) that within three (3) business days following Landlord's and/or Tenant's receipt of the other party's First Rebuttal, Landlord and Tenant, as applicable, shall have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party's First Rebuttal (the "Second Rebuttals"); provided, however, such Second Rebuttals shall be limited to the facts and arguments raised in the other party's First Rebuttal and shall identify clearly which argument or fact of the other party's First Rebuttal is intended to be rebutted, (vii) the date: time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Neutral Appraiser, and the Advocate Appraisers, which date shall in any event be within fifteen (15) business days of following the appointment of the third arbitrator reach Neutral Arbitrator, (viii) that no discovery shall take place in connection with the arbitration without the prior approval of the Neutral Arbitrator, (ix) that neither the Neutral Arbitrator nor the Neutral Appraiser shall be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant (except that the Neutral Arbitrator and the Neutral Appraiser, with representatives from each of Landlord and Tenant, shall have the right to visit the Comparable Buildings), (x) the specific persons that shall be allowed to attend the arbitration, (xi) Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours ("Tenant's Initial Statements"), (xii) following Tenant's Initial Statement, Landlord shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours ("Landlord's Initial Statements"), (xiii) following Landlord's Initial Statements, Tenant shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Landlord (“Tenant's Rebuttal Statement"), (xiv) following Tenant's Rebuttal Statement, Landlord shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Tenant ("Landlord's Rebuttal Statement"), (xv) that the Neutral Arbitrator shall render a decision as to ("Award") indicating whether the parties shall use Landlord’s 's or Tenant’s 's submitted Market Rent is closest to the Market Rent as determined by the Neutral Arbitrator, (xvi) that following notification of the Award, the Landlord's or Tenant's submitted Market Rent determination, whichever is selected by the Neutral Arbitrator as being closest to the Market Rent, shall become the then applicable Market Rent, and shall notify Landlord and Tenant thereof.
(ivxvii) The that the decision of the majority of the three (3) arbitrators Neutral Arbitrator shall be binding upon on Landlord and Tenant.
(vd) If either Landlord or Tenant fails fail to appoint an arbitrator Advocate Arbitrator within ten fifteen (1015) days after the applicable Outside Agreement Date, either party may file a petition with any court of proper jurisdiction in San Diego County, California, to appoint such Advocate Arbitrator subject to the arbitrator appointed by one criteria in Section 4 of them shall reach a decisionthis Lease, notify Landlord and Tenant thereofor if he or she refuses to act, and either party may petition any judge having jurisdiction over the parties to appoint such arbitrator’s decision shall be binding upon Landlord and TenantAdvocate Arbitrator.
(vie) If the two arbitrators Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may file a third arbitratorpetition in any court of proper jurisdiction in San Diego County, California, to appoint the Neutral Arbitrator, subject to criteria in Section 4(a) above, or both if he or she refuses to act, either party may petition any judge having jurisdiction over the parties fail to appoint an such arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(viif) The cost costs of arbitration shall be paid shared by Landlord and Tenant equally.
Appears in 1 contract
Determination of Market Rent. If In the event Tenant timely and appropriately objects exercises its option to extend the Market Lease but rejects the Option Rent set forth in Tenant’s Acceptancethe Landlord's Option Rent Calculation pursuant to Section 2.2.3, above, then Landlord and Tenant shall attempt to agree upon the Market Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one upon the Option Rent applicable to the Option Term on or before the date that is ninety (2190) days following Tenant’s Acceptance prior to the expiration of the initial Lease Term (“the "Outside Agreement Date”"), then each the Option Rent shall be determined by arbitration pursuant to the terms of this Section 2.2.4. Each party shall make a separate determination of the Market Rent which Option Rent, within five (5) days following the Outside Agreement Date, and such determinations shall be submitted to each other and to arbitration in accordance with the following items (i) Section 2.2.4.1 through (vii):Section 2.2.4.4, below.
(i) 2.2.4.1 Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, appoint one arbitrator who shall by profession be a current MAI appraiser, real estate broker broker, or appraiser real estate lawyer who shall have been active over the five (5) year period ending on the date of commercial such appointment in the appraising and/or leasing of first class office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) yearsBuilding. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s 's or Tenant’s 's submitted Market Option Rent is the closest to the actual Market Option Rent as determined by the arbitrators, taking into account the requirements of item Section 2.2.2 of this Lease. Each such arbitrator shall be appointed within fifteen (b15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable), above. The arbitrators so selected by Landlord and Tenant shall be deemed "Advocate Arbitrators."
(ii) 2.2.4.2 The two (2) arbitrators Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within five ten (510) business days of the date of the appointment of the last appointed arbitrator Advocate Arbitrator to agree upon and appoint a third arbitrator ("Neutral Arbitrator") who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators except that (2i) arbitratorsneither the Landlord or Tenant or either parties' Advocate Arbitrator may, directly, or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant during the five (5) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord's counsel and Tenant's counsel.
2.2.4.3 Within ten (iii10) The three days following the appointment of the Arbitrator, Landlord and Tenant shall enter into an arbitration agreement (3the "Arbitration Agreement") arbitrators which shall within set forth the following: Each of Landlord's and Tenant's best and final and binding determination of the Option Rent exchanged by the parties pursuant to Section 2.2.4, above; An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, and shall require the Neutral Arbitrator to demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant; Instructions to be followed by the Neutral Arbitrator when conducting sucharbitration; That Landlord and Tenant shall each have the right to submit to the Neutral Arbitrator (with a copy to the other party), on or before the date that occurs fifteen (15) days of following the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s Neutral Arbitrator, an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord or Tenant’s submitted Market Rent, and shall notify as the case may be, in support of Landlord's or Tenant's respective determination of Option Rent (the "Briefs"); That within five (5) business days following the exchange of Briefs, Landlord and Tenant thereof.
shall each have the right to provide the Neutral Arbitrator (ivwith a copy to the other party) The decision with a written rebuttal to the other party's Brief; provided, however, such rebuttals shall be limited to the facts and arguments raised in the other party's Brief and shall identify clearly which argument or fact of the majority other party's Brief is intended to be rebutted; The date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Advocate Arbitrators, Landlord and Tenant, and each party's applicable consultants, which date shall in any event be within forty-five (45) days following the appointment of the Neutral Arbitrator; That no discovery shall take place in connection with the arbitration, other than to verify the factual information that is presented by Landlord or Tenant; That the Neutral Arbitrator shall not be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant, except that the Neutral Arbitrator shall be permitted to visit the Project and the buildings containing the Comparable Transactions; Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) arbitrators hours ("Tenant's Initial Statement"); Following Tenant's Initial Statement, Landlord shall be binding upon Landlord and Tenant.
have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (v3) If either Landlord or Tenant fails to appoint an arbitrator within hours; That, not later than ten (10) days after the applicable Outside Agreement Datedate of the arbitration, the arbitrator appointed Neutral Arbitrator shall render a decision (the "Ruling") indicating whether Landlord's or Tenant's submitted Option Rent is closer to the Option Rent; That following notification of the Ruling, Landlord's or Tenant's submitted Option Rent determination, whichever is selected by one the Neutral Arbitrator as being closer to the Option Rent shall become the then applicable Option Rent; and That the decision of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision the Neutral Arbitrator shall be binding upon on Landlord and Tenant.
(vi) . If a date by which an event described in Section 2.2.4.3, above, is to occur falls on a weekend or a holiday, the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator date shall be dismissed and the matter deemed to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d)next business day.
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Samples: Office Lease (8x8 Inc /De/)
Determination of Market Rent. If Tenant timely and appropriately objects to the Market Rent in Tenant’s Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one thirty (2130) days following Tenant’s Acceptance (“Outside Agreement Date”), then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of comparable commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), above
(i. e., the arbitrators may only select Landlord’s or Tenant’s determination of Market Rent and shall not be entitled to make a compromise determination).
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two (2) arbitrators fail to agree upon and appoint a third (3rd) arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Determination of Market Rent. If In the event Tenant timely and appropriately objects or is deemed to have objected to the Market Rent in Tenant’s AcceptanceRent, Landlord and Tenant shall attempt to agree upon the Market Rent using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one sixty (2160) days following Tenant’s Acceptance objection or deemed objection to the Landlord’s 2nd Option Rent Calculation (the “Outside Agreement Date”), then in connection with the 2nd Option Rent, Landlord’s 2nd Option Rent Calculation and Tenant’s 2nd Option Rent Calculation, each party as previously delivered to the other party, shall be submitted to the arbitrators pursuant to the TCCs of this Section 3, and (ii) in connection with any other contested calculation of market Rent, the parties shall each make a separate determination of the Market Rent which and shall submit the same to the arbitrators pursuant to the TCCs of this Section 3. The submittals shall be made concurrently with the selection of the arbitrators pursuant to this Section 3 and shall be submitted to each other and to arbitration in accordance with Section 3.1 through 3.7 of this Exhibit B, but subject to the following items (i) through (vii):conditions, when appropriate, of Section 2, above.
(i) 3.1 Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, appoint one arbitrator who shall by profession be a current real estate broker broker, appraiser or appraiser attorney who shall have been active over the five (5) year period ending on the date of commercial such appointment in the leasing (or appraisal, as the case may be) of first-class office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) yearsComparable Area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent Rent, is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of
Section 1 of item this Exhibit B. Each such arbitrator shall be appointed within fifteen (b15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed (“Advocate Arbitrators”), above.
(ii) 3.2 The two (2) arbitrators Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within five ten (510) business days of the date of the appointment of the last appointed arbitrator Advocate Arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitratorsAdvocate Arbitrators except that neither the Landlord or Tenant or either party’s Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior to subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
(iii) 3.3 The three (3) arbitrators shall within fifteen thirty (1530) days of the appointment of the third arbitrator Neutral Arbitrator reach a decision as to Market Rent and determine whether the parties shall use Landlord’s or Tenant’s determination of Market Rent as submitted pursuant to this Section 3 and Section 2, above, is closest to Market Rent as determined by the arbitrators and simultaneously publish a ruling (“Award”) indicating whether Landlord’s 2nd Option Rent Calculation or Tenant’s 2nd Option Rent Calculation is closest to the Market Rent as determined by the arbitrators. Following notification of the Award, the Landlord’s 2nd Option Rent Calculation or Tenant’s 2nd Option Rent Calculation, whichever is selected by the arbitrators as being closest to Market Rent shall become the 2nd Option Rent, and shall notify Landlord and Tenant thereof.
(iv) 3.4 The decision of Award issued by the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) 3.5 If either Landlord or Tenant fails fail to appoint an arbitrator Advocate Arbitrator within ten fifteen (1015) days after the applicable Outside Agreement Date, either party may petition the arbitrator appointed by one presiding judge of them shall reach a decisionthe Superior Court of San Diego County to appoint such Advocate Arbitrator subject to the criteria in Section 3.1 of this Exhibit B, notify Landlord and Tenant thereofor if he or she refuses to act, and either party may petition any judge having jurisdiction over the parties to appoint such arbitrator’s decision shall be binding upon Landlord and TenantAdvocate Arbitrator.
(vi) 3.6 If the two arbitrators Advocate Arbitrators fail to agree upon and appoint a third arbitratorthe Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Diego County to appoint the Neutral Arbitrator, subject to criteria in Section 3.1 of this Exhibit B, or both if he or she refuses to act, either party may petition any judge having jurisdiction over the parties fail to appoint an such arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) 3.7 The cost of arbitration shall be paid by Landlord and Tenant equally. The undersigned as Tenant under that certain Office Lease (the “Lease”) made and entered into as of , 2004 by and between as Landlord, and the undersigned as Tenant, for Premises on the floor(s) of the office building located at , , California , certifies as follows:
1. Attached hereto as Exhibit A is a true and correct copy of the Lease and all amendments and modifications thereto. The documents contained in Exhibit A represent the entire agreement between the parties as to the Premises.
2. The undersigned currently occupies the Premises described in the Lease, the Lease Term commenced on , and the Lease Term expires on , and the undersigned has no option to terminate or cancel the Lease or to purchase all or any part of the Premises, the Building and/or the Project.
3. Base Rent became payable on .
Appears in 1 contract
Samples: Office Lease (Aries Ventures Inc)
Determination of Market Rent. If In the event Tenant timely and appropriately objects or is deemed to have objected to the Market Rent in Tenant’s AcceptanceRent, Landlord and Tenant shall attempt to agree upon the Market Rent using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one sixty (2160) days following Tenant’s Acceptance objection or deemed objection to the Landlord’s Option Rent Calculation (the (the “Outside Agreement Date”), then (i) in connection with the Option Rent, Landlord’s Option Rent Calculation and Tenant’s Option Rent Calculation, each party as previously delivered to the other party, shall be submitted to the arbitrators pursuant to the TCCs of this Section 2.2.4, and (ii) in connection with any other contested calculation of market Rent, the parties shall each make a separate determination of the Market Rent which and shall submit the same to the arbitrators pursuant to the TCCs of this Section 2.2.5. The submittals shall be made concurrently with the selection of the arbitrators pursuant to this Section 2.2.5 and shall be submitted to each other and to arbitration in accordance with Section 2.2.5.1 through 2.2.5.5 of this Lease, but subject to the following items (i) through (vii):conditions, when appropriate, of Section 2.2.3.
(i) 2.2.5.1 Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, mutually and reasonably select and appoint one arbitrator who shall by profession be a current real estate broker broker, appraiser or appraiser of commercial office properties in attorney (the immediate vicinity of the Project, and “Neutral Arbitrator”) who has shall have been active in such field over the last five (5) yearsyear period ending on the date of such appointment in the leasing (or appraisal, as the case may be) of first-class office/lab/manufacturing properties in the Comparable Area. The determination of the arbitrators Neutral Arbitrator shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent Rent, is the closest to the actual Market Rent as determined by the arbitratorsNeutral Arbitrator, taking into account the requirements of item Section 2.2.2 of this Lease. Such Neutral Arbitrator shall be appointed within thirty (b)30) days after the applicable Outside Agreement Date. Neither the Landlord nor Tenant may, abovedirectly or indirectly, consult with the Neutral Arbitrator prior to subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.4.2 Within thirty (ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (1530) days of the appointment of the third arbitrator Neutral Arbitrator, such Neutral Arbitrator shall reach a decision as to Market Rent and determine whether the parties shall use Landlord’s or Tenant’s determination of Market Rent as submitted pursuant to Section 2.2.5.1 and Section 2.2.3 of this Lease is closest to Market Rent as determined by such Neutral Arbitrator and simultaneously publish a ruling (“Award”) indicating whether Landlord’s or Tenant’s submitted Market Rent is closest to the Market Rent as determined by the Neutral Arbitrator. Following notification of the Award, the Landlord’s or Tenant’s submitted Market Rent determination, whichever is selected by the Neutral Arbitrator as being closest to Market rent shall become the then applicable Market Rent, and shall notify Landlord and Tenant thereof.
(iv) 2.2.4.3 The decision of Award issued by the majority of the three (3) arbitrators Neutral Arbitrator shall be binding upon Landlord and Tenant.
(v) 2.2.4.4 If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a the Neutral Arbitrator, then either party may petition Judicial Arbitration & Mediation Services, Inc. (“JAMS”) to designate an independent third arbitrator, or both parties fail party to appoint an arbitratorthe Neutral Arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth criteria in Section 2.2.5.1 of this item (d)Lease.
(vii) 2.2.4.5 The cost of arbitration shall be paid by the party (either Landlord and Tenant equallyor Tenant) whose Market Rent is not selected by the Neutral Arbitrator.
Appears in 1 contract
Samples: Office Lease (Favrille Inc)
Determination of Market Rent. If Tenant timely and appropriately objects to the Market Rent in Tenant’s Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one (21) days following Tenant’s Acceptance (“Outside Agreement Date”), then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of comparable commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five ten (510) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), aboveabove (i.e., the arbitrators may only select Landlord’s or Tenant’s determination of Market Rent and shall not be entitled to make a compromise determination).
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two (2) arbitrators fail to agree upon and appoint a third (3rd) arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Determination of Market Rent. If Tenant timely and appropriately objects to the Market Rent in Tenant’s 's Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one (21) days following Tenant’s 's Acceptance (“Outside Agreement Date”"OUTSIDE AGREEMENT DATE"), then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of commercial office high-rise properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether choosing either Landlord’s 's or Tenant’s 's submitted Market Rent is as the closest to the actual deemed Market Rent as determined by the arbitratorsRent, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s 's decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (dc).
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Determination of Market Rent. If Tenant timely and appropriately objects to the Market Rent in Tenant’s Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one (21) days following Tenant’s Acceptance (“Outside Agreement Date”), then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of commercial office properties in within the immediate vicinity of the ProjectMarket, and who has been active in such field over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Determination of Market Rent. If Tenant timely and appropriately objects to the Market Rent in Tenant’s Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one (21) days following Tenant’s Acceptance (“Outside Agreement Date”), then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i1) through (vii7):
(i1) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one neutral arbitrator who shall by profession be a current independent real estate broker or appraiser of commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (bii), above.
(ii2) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii3) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv4) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v5) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi6) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii7) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Determination of Market Rent. If Tenant timely and appropriately objects to the Market Rent in Tenant’s 's Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one (21) days following Tenant’s 's Acceptance (“"Outside Agreement Date”"), then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s 's decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally. [The rest of this page intentionally left blank. Signatures on the next page.]
Appears in 1 contract
Determination of Market Rent. If Tenant timely In the event Seller and appropriately objects to the Market Rent in Tenant’s Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant Buyer fail to reach agreement within twenty-one twenty (2120) business days following Tenant’s Acceptance Seller's receipt of the Exercise Notice (“Outside Agreement Date”the "OUTSIDE AGREEMENT DATE"), then each party shall make a separate determination the issue of the Fair Market Rent which Value shall be submitted to each other third party appraisers pursuant to the terms and conditions of this SECTION 2.3, but subject to arbitration in accordance with the following items (i) through (vii):conditions, when appropriate, of SECTION 2.2.
(i) Landlord 2.3.1 Seller and Tenant Buyer shall each appoint, within appoint one MAI appraiser who shall have been active over the ten (10) days year period ending on the date of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of commercial office properties such appointment in the immediate vicinity appraisal of first-class office/lab/manufacturing properties located in the ProjectSorrento Mesa and University Town Center areas of San Diego County, and who has been active in such field over the last five (5) yearsCalifornia. The determination of the arbitrators appraisers shall be limited solely to the issue correct determination of whether Landlord’s or Tenant’s submitted Fair Market Rent is the closest to the actual Market Rent as determined by the arbitratorsValue, taking into account the requirements of item SECTION 2.2 of this Agreement. Each such appraiser shall be appointed within ten (b10) business days after the applicable Outside Agreement Date. Seller and Buyer may consult with their selected appraisers prior to appointment and may select an appraiser who is favorable to their respective positions. The appraisers so selected by Seller and Buyer shall be deemed "ADVOCATE ARBITRATORS".
2.3.2 During the thirty (30) day period following the date upon which the last of the Advocate Arbitrators was selected, each Advocate Arbitrator shall complete its appraisal with regard to the Fair Market Value and shall meet with the other Advocate Arbitrator to discuss the same. During the ten (10) business day period immediately following such meeting, the Advocate Arbitrators shall attempt to agree upon the Fair Market Value using reasonable good-faith efforts, based upon their respective appraisals. To the extent the Advocate Arbitrators reach agreement as to the Fair Market Value during such ten (10) business day period, they shall (within such time period) publish a ruling ("AWARD") indicating the Fair Market Value as jointly determined by such Advocate Arbitrators. Following notification of the Award, the Fair Market Value as jointly determined by such Advocate Arbitrator shall become the then applicable Fair Market Value (for purposes of calculating the applicable Purchase Price). To the extent the Advocate Arbitrators fail to reach agreement within the applicable period as to the Fair Market Value, the process for determining the Fair Market Value shall continue as follows.
2.3.3 In the event the Advocate Arbitrators fail to reach agreement within ten (10) business days following their post-appraisal meeting (the "ADVOCATE'S OUTSIDE DATE"), above.
(ii) then the issue of Fair Market Value shall be submitted to the "Neutral Arbitrator" for a final determination. The two Advocate Arbitrators shall (2pursuant to a specific requirement of their engagement letters) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator Advocate's Outside Date agree upon and EXHIBIT I appoint a third arbitrator appraiser ("NEUTRAL ARBITRATOR") who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators except that neither the Seller or Buyer or either party's Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior to, or subsequent to, his or her appointment and such Neutral Arbitrator shall not have had any business dealings with either Seller or Buyer, or an Affiliate thereof, during the immediately preceding two (22)-year period, and shall not be in then-active consideration for any such business dealings. Notwithstanding anything to the contrary set forth above, upon the completion of such appraisal process, in no event shall such determination of Fair Market Value be challenged or disputed based upon (i) arbitratorsinformation regarding the Neutral Arbitrator subsequently discovered, unless such information consisted of a party's actual knowledge of a then-existing relationship with such Neutral Arbitrator (as of the commencement of the Fair Market Value determination process) and such party intentionally withheld such information from the other party, or (ii) the Neutral Arbitrator's subsequent activities and relationships (even if the Neutral Arbitrator does, at some later time, enter into a business dealing with either Seller or Buyer, or an Affiliate thereof). The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Seller's counsel and Buyer's counsel.
(iii) 2.3.4 The three (3) arbitrators Neutral Arbitrator shall within fifteen thirty (1530) days of the appointment conduct its appraisal of the third arbitrator reach Property to determine the applicable Fair Market Value and simultaneously publish a decision ruling (also, an "AWARD") indicating the Fair Market Value as to whether determined by such Neutral Arbitrator. Following notification of the parties Award, the Fair Market Value as determined by such Neutral Arbitrator shall use Landlord’s or Tenant’s submitted become the then applicable Fair Market Rent, and shall notify Landlord and Tenant thereofValue (for purposes of calculating the applicable Purchase Price).
2.3.5 The Award issued jointly by the Advocate Arbitrators (ivor, if applicable, the Award issued by the Neutral Arbitrator) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord Seller and TenantBuyer.
(v) 2.3.6 If either Landlord Seller or Tenant fails Buyer fail to appoint an arbitrator Advocate Arbitrator within ten (10) business days after the applicable Outside Agreement Date, either party may petition the arbitrator appointed by one presiding judge of them shall reach a decisionthe Superior Court of San Diego County to appoint such Advocate Arbitrator subject to the criteria in SECTION 2.3.1 of this Agreement, notify Landlord and Tenant thereofor if he or she refuses to act, and either party may petition any judge having jurisdiction over the parties to appoint such arbitrator’s decision shall be binding upon Landlord and TenantAdvocate Arbitrator.
(vi) 2.3.7 If the two arbitrators Advocate Arbitrators fail (i) to agree upon the Fair Market Value on or before the Advocate Outside Date, and (ii) thereafter to agree upon and appoint a third arbitratorthe Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Diego County to appoint the Neutral Arbitrator, subject to criteria in SECTION 2.3.1 of this Agreement, or both if he or she refuses to act, either party may petition any judge having jurisdiction over the parties fail to appoint an such arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) 2.3.8 The cost of arbitration shall be paid by Landlord Seller and Tenant Buyer equally.
Appears in 1 contract
Samples: Lease (Vical Inc)
Determination of Market Rent. If In the event Tenant timely and appropriately objects exercises its option to extend the Market Lease but rejects the Option Rent set forth in Tenant’s Acceptancethe Option Rent Notice pursuant to Section 2.2.3, above, then Landlord and Tenant shall attempt to agree upon the Market Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one upon the Option Rent applicable to the Option Term on or before the date that is ninety (2190) days following Tenant’s Acceptance prior to the expiration of the initial Lease Term (the “Outside Agreement Date”), then each the Option Rent shall be determined by arbitration pursuant to the terms of this Section 2.2.4. Each party shall make a separate determination of the Market Option Rent, within five (5) days following the Outside Agreement Date, and thereafter the parties shall attempt to reach agreement on the Option Rent which applicable to the Option Term on or before the date that is ten (10) days after the Outside Agreement Date. If the parties fail to so reach agreement, then such separate determinations shall be submitted to each other and to arbitration in accordance with Section 2.2.4.1 through Section 2.2.4.4, below, but in no event may Tenant’s separate determination be less than the following items (i) through (vii):amount set forth in the Exercise Notice and in no event may Landlord’s separate determination be greater than the amount set forth in the Landlord Response Notice.
(i) 2.2.4.1 Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, appoint one arbitrator who shall by profession be a current MAI appraiser, real estate broker broker, or appraiser real estate lawyer who shall have been active over the five (5) year period ending on the date of commercial such appointment in the appraising and/or leasing of first class office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) yearsBuilding. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Option Rent is the closest to the actual Market Option Rent as determined by the arbitrators, taking into account the requirements of item Section 2.2.2 of this Lease. Each such arbitrator shall be appointed within fifteen (b15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable), above. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
(ii) 2.2.4.2 The two (2) arbitrators Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within five ten (510) business days of the date of the appointment of the last appointed arbitrator Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators except that (2i) arbitratorsneither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly, or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant during the five (5) year period prior to such appointment. If the two Advocate Arbitrators cannot reach agreement on a Neutral Arbitrator within the ten (10) day time period specified above, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Sections 2.2.4.1 and Section 2.2.4.2 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.4.3 Within ten (iii10) The three days following the appointment of the Arbitrator, Landlord and Tenant shall enter into an arbitration agreement (3the “Arbitration Agreement”) arbitrators which shall within set forth the following:
2.2.4.3.1 Each of Landlord’s and Tenant’s best and final and binding determination of the Option Rent exchanged by the parties pursuant to Section 2.2.4, above;
2.2.4.3.2 An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, and shall require the Neutral Arbitrator to demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant;
2.2.4.3.3 Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
2.2.4.3.4 That Landlord and Tenant shall each have the right to submit to the Neutral Arbitrator (with a copy to the other party), on or before the date that occurs fifteen (15) days of following the appointment of the third arbitrator reach a decision Neutral Arbitrator, an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord or Tenant, as to whether the parties shall use case may be, in support of Landlord’s or Tenant’s submitted Market Rentrespective determination of Option Rent (the “Briefs”);
2.2.4.3.5 That within five (5) business days following the exchange of Briefs, and shall notify Landlord and Tenant thereof.
shall each have the right to provide the Neutral Arbitrator (ivwith a copy to the other party) The decision with a written rebuttal to the other party’s Brief (the “First Rebuttals”); provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party’s Brief and shall identify clearly which argument or fact of the majority other party’s Brief is intended to be rebutted;
2.2.4.3.6 That within five (5) business days following the parties’ receipt of each other’s First Rebuttal, Landlord and Tenant, as applicable, shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s First Rebuttal (the “Second Rebuttals”); provided, however, such Second Rebuttals shall be limited to the facts and arguments raised in the other party’s First Rebuttal and shall identify clearly which argument or fact of the other party’s First Rebuttal is intended to be rebutted;
2.2.4.3.7 The date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Advocate Arbitrators, Landlord and Tenant, and each party’s applicable consultants, which date shall in any event be within forty-five (45) days following the appointment of the Neutral Arbitrator;
2.2.4.3.8 That no discovery shall take place in connection with the arbitration, other than to verify the factual information that is presented by Landlord or Tenant;
2.2.4.3.9 That the Neutral Arbitrator shall not be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant, except that the Neutral Arbitrator shall be permitted to visit the Project and the buildings containing the Comparable Transactions;
2.2.4.3.10 The specific persons that shall be allowed to attend the arbitration;
2.2.4.3.11 Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) arbitrators hours (“Tenant’s Initial Statement”);
2.2.4.3.12 Following Tenant’s Initial Statement, Landlord shall be binding upon have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours (“Landlord’s Initial Statement”);
2.2.4.3.13 Following Landlord’s Initial Statement, Tenant shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Landlord and (“Tenant.’s Rebuttal Statement”);
2.2.4.3.14 Following Tenant’s Rebuttal Statement, Landlord shall have up to two (v2) If either Landlord or Tenant fails additional hours to appoint an arbitrator within present additional arguments and/or to rebut the arguments of Tenant;
2.2.4.3.15 That, not later than ten (10) days after the applicable Outside Agreement Datedate of the arbitration, the arbitrator appointed Neutral Arbitrator shall render a decision (the “Ruling”) indicating whether Landlord’s or Tenant’s submitted Option Rent is closer to the Option Rent;
2.2.4.3.16 That following notification of the Ruling, Landlord’s or Tenant’s submitted Option Rent determination, whichever is selected by one the Neutral Arbitrator as being closer to the Option Rent shall become the then applicable Option Rent; and
2.2.4.3.17 That the decision of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision the Neutral Arbitrator shall be binding upon on Landlord and Tenant.
(vi) 2.2.4.3.18 If a date by which an event described in Section 2.2.4.3, above, is to occur falls on a weekend or a holiday, the two arbitrators fail date shall be deemed to agree upon and appoint a third arbitrator, or both parties fail be the next business day.
2.2.4.4 In the event that the Option Rent shall not have been determined pursuant to appoint an arbitrator, then the appointment terms hereof prior to the commencement of the third arbitrator or any arbitrator Option Term, Tenant shall be dismissed required to pay the Option Rent, initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts due, and the matter to be decided appropriate party shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject make any corresponding payment to the instruction set forth in this item (d)other party.
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Samples: Office Lease (Versartis, Inc.)
Determination of Market Rent. If In the event Tenant timely and appropriately objects or is deemed to have objected to the Market Rent in Tenant’s AcceptanceRent, Landlord and Tenant shall attempt to agree upon the Market Rent using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one sixty (2160) days following Tenant’s Acceptance objection or deemed objection to the Landlord’s Option Rent Calculation (the “Outside Agreement Date”), then each then, the Option Rent shall be determined by arbitration pursuant to the terms of this Section 16.4. Each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appointOption Rent, within ten (10) days of following the Outside Agreement Date, in such detail as such party shall deem appropriate, and such determinations shall be transmitted to the other party and submitted to arbitration in accordance with Section 16.4.1 through Section 16.4.4, below. If a party fails to deliver such determination of Option Rent within the period set forth above, then the other party’s determination of Option Rent shall control and there shall be no reason to proceed with arbitration pursuant to this Section 16.4.
16.4.1 Landlord and Tenant shall each appoint one (1) arbitrator who shall by profession be a current MAI appraiser, real estate broker broker, or appraiser real estate lawyer who shall have been active over the five (5) year period ending on the date of commercial such appointment in the appraising and/or leasing of first class office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) yearsBuilding. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Market Option Rent is the closest to the actual Market Option Rent as determined by the arbitrators, taking into account the requirements of item Section 16.2 of this Second Amendment. Each such arbitrator shall be appointed within fifteen (b15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable), above. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
(ii) 16.4.2 The two (2) arbitrators Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within five ten (510) business days of the date of the appointment of the last appointed arbitrator Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators except that (2i) arbitratorsneither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly, or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant during the five (5) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
16.4.3 Within ten (iii10) The three days following the appointment of the Arbitrator, Landlord and Tenant shall enter into an arbitration agreement (3the “Arbitration Agreement”) arbitrators which shall within set forth the following:
16.4.3.1 Each of Landlord’s and Tenant’s best and final and binding determination of the Option Rent exchanged by the parties pursuant to Section 16.4, above;
16.4.3.2 An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Second Amendment, as modified by the Arbitration Agreement, and shall require the Neutral Arbitrator to demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant;
16.4.3.3 Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
16.4.3.4 That Landlord and Tenant shall each have the right to submit to the Neutral Arbitrator (with a copy to the other party), on or before the date that occurs fifteen (15) days of following the appointment of the third arbitrator reach a decision Neutral Arbitrator, an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord or Tenant, as to whether the parties shall use case may be, in support of Landlord’s or Tenant’s submitted Market Rentrespective determination of Option Rent (the “Briefs”);
16.4.3.5 That within five (5) business days following the exchange of Briefs, and shall notify Landlord and Tenant thereof.
shall each have the right to provide the Neutral Arbitrator (ivwith a copy to the other party) The decision with a written rebuttal to the other party’s Brief (the “First Rebuttals”); provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party’s Brief and shall identify clearly which argument or fact of the majority other party’s Brief is intended to be rebutted;
16.4.3.6 That within five (5) business days following the parties’ receipt of each other’s First Rebuttal, Landlord and Tenant, as applicable, shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s First Rebuttal (the “Second Rebuttals”); provided, however, such Second Rebuttals shall be limited to the facts and arguments raised in the other party’s First Rebuttal and shall identify clearly which argument or fact of the other party’s First Rebuttal is intended to be rebutted;
16.4.3.7 The date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Advocate Arbitrators, Landlord and Tenant, and each party’s applicable consultants, which date shall in any event be within forty-five (45) days following the appointment of the Neutral Arbitrator;
16.4.3.8 That no discovery shall take place in connection with the arbitration, other than to verify the factual information that is presented by Landlord or Tenant;
16.4.3.9 That the Neutral Arbitrator shall not be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant, except that the Neutral Arbitrator shall be permitted to visit the Building and the buildings containing the Comparable Transactions;
16.4.3.10 The specific persons that shall be allowed to attend the arbitration;
16.4.3.11 Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) arbitrators hours (“Tenant’s Initial Statement”);
16.4.3.12 Following Tenant’s Initial Statement, Landlord shall be binding upon have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours (“Landlord’s Initial Statement”);
16.4.3.13 Following Landlord’s Initial Statement, Tenant shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Tenant (“Tenant’s Rebuttal Statement”);
16.4.3.14 Following Tenant’s Rebuttal Statement, Landlord and Tenant.shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Tenant (“Landlord’s Rebuttal Statement”);
(v) If either Landlord or Tenant fails to appoint an arbitrator within 16.4.3.15 That, not later than ten (10) days after the applicable Outside Agreement Datedate of the arbitration, the arbitrator appointed Neutral Arbitrator shall render a decision (the “Ruling”) indicating whether Landlord’s or Tenant’s submitted Option Rent is closer to the Option Rent;
16.4.3.16 That following notification of the Ruling, Landlord’s or Tenant’s submitted Option Rent determination, whichever is selected by one the Neutral Arbitrator as being closer to the Option Rent shall become the then applicable Option Rent;
16.4.3.17 That the decision of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision the Neutral Arbitrator shall be binding upon on Landlord and Tenant; and
16.4.3.18 If a date by which an event described in Section 16.4.3, above, is to occur falls on a weekend or a holiday, the date shall be deemed to be the next business day.
(vi) If 16.4.4 In the two arbitrators fail event that the Option Rent shall not have been determined pursuant to agree upon and appoint a third arbitrator, or both parties fail the terms hereof prior to appoint an arbitrator, then the appointment commencement of the third arbitrator or any arbitrator Option Term, Tenant shall be dismissed required to pay the Option Rent, initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts due, and the matter to be decided appropriate party shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject make any corresponding payment to the instruction set forth in this item (d)other party.
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Samples: Office Lease (Splunk Inc)
Determination of Market Rent. If In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent at least six (6) months before the applicable Lease Expiration Date. If Tenant, on or before the date which is thirty (30) days following the date upon which Tenant receives written notice containing Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Market Rent Option Rent, or if Tenant irrevocably exercises its right of first offer with respect to the entire space described in Tenantsuch First Offer Notice but objects to Landlord’s Acceptancedetermination of First Offer Rent, then in either event Landlord and Tenant shall attempt to agree upon the Market Option Rent (or First Offer Rent, as applicable) using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one thirty (2130) days following Tenant’s Acceptance objection to the Option Rent (or Tenant’s object to Landlord’s determination of First Offer Rent, as applicable) (the “Outside Agreement Date”), then each party shall make a separate determination of the Market Rent which Option Rent, or First Offer Rent, as applicable, as the case may be, within five (5) business days following the Outside Agreement Date, and such determinations shall be binding and be submitted to each other and to arbitration in accordance with the following items (i) Sections 2.2.3.1 through (vii):2.2.3.3, below.
(i) 2.2.3.1 Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, appoint one arbitrator who shall by profession be a current real estate broker or appraiser who shall have been active over the ten (10) year period ending on the date of such appointment in the leasing, of first-class, high-rise commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) yearsMarket Area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Option Rent (or First Offer Rent, as applicable) is the closest to the actual Market Option Rent (or First Offer Rent, as determined by the arbitratorsapplicable), taking into account the requirements of item Section 2.2.2 of this Lease. Each such arbitrator shall be appointed within thirty (b30) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable), above.
(ii) . The two (2) arbitrators so appointed selected by Landlord and Tenant pursuant to this Section 2.2.3.1 shall be deemed “Advocate Arbitrators” for purposes of this Section 2.2. If either party fails to timely appoint an Advocate Arbitrator, then the other party may deliver written notice of such failure to the party that failed to timely appoint an Advocate Arbitrator, and if such failure is not cured within five (5) business days following receipt of such written notice, then the Advocate Arbitrator timely appointed by the other party shall determine the Option Rent and such determination shall be binding upon the parties. If either party fails to timely submit its determination of the Option Rent, then the other party shall have the right to deliver a notice to the failed party expressly referencing this Section 2.2.3.1 and the time period for performance hereunder, and if the failed party does not deliver its determination of the Option Rent within three (3) business days following its receipt of such notice, then the determination of the other party timely submitted shall be deemed to be the Option Rent.
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed arbitrator Advocate Arbitrator to agree upon and appoint a third arbitrator (for purposes of this Section 2.2, the “Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that (i) neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant or any of their affiliates during the five (5) year period prior to such appointment, and prior to the appointment of the Neutral Arbitrator, the Neutral Arbitrator shall be required to disclose any conflicts to Landlord and Tenant. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel. If the two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to Advocate Arbitrators cannot timely agree upon and appoint a third arbitratorNeutral Arbitrator, or both parties fail then Landlord and Tenant shall each apply to the Presiding Judge of the Superior Court of the County of San Francisco to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) Neutral Arbitrator. The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.3 Within ten (10) days following the appointment of the Arbitrator, Landlord and Tenant shall enter into an arbitration agreement (for purposes of this Section 2.2, the “Arbitration Agreement”) which shall set forth the following:
(a) Each of Landlord’s and Tenant’s best and final and binding determination of the Option Rent exchanged by the parties pursuant to Section 2.2.3, above;
(b) An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an Exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, and shall require the Neutral Arbitrator to demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant or any of their affiliates;
(c) Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
(d) That Landlord and Tenant shall each have the right to submit to the Neutral Arbitrator (with a copy to the other party), on or before the date that occurs fifteen (15) days following the appointment of the Neutral Arbitrator, an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord or Tenant, as the case may be, in support of Landlord’s or Tenant’s respective determination of Option Rent or First Offer Rent, as applicable (the “Briefs”);
(e) That within five (5) business days following the exchange of Briefs, Landlord and Tenant shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s Brief (the “First Rebuttals”); provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party’s Brief and shall identify clearly which argument or fact of the other party’s Brief is intended to be rebutted;
(f) That within five (5) business days following the parties’ receipt of each other’s First Rebuttal, Landlord and Tenant, as applicable, shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s First Rebuttal (the “Second Rebuttals”); provided, however, such Second Rebuttals shall be limited to the facts and arguments raised in the other party’s First Rebuttal and shall identify clearly which argument or fact of the other party’s First Rebuttal is intended to be rebutted;
(g) The date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Advocate Arbitrators, Landlord and Tenant, and each party’s applicable consultants, which date shall in any event be within forty-five (45) days following the appointment of the Neutral Arbitrator;
(h) That no discovery shall take place in connection with the arbitration, other than to verify the factual information that is presented by Landlord or Tenant;
(i) That the Neutral Arbitrator shall not be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant, except that the Neutral Arbitrator shall be permitted to visit the Project and the buildings containing the Comparable Transactions;
(j) Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours (for purposes of this Section 2.2, the “Tenant’s Initial Statement”);
(k) Following Tenant’s Initial Statement, Landlord shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours (for purposes of this Section 2.2, the “Landlord’s Initial Statement”);
(l) Following Landlord’s Initial Statement, Tenant shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Tenant (for purposes of this Section 2.2, the “Tenant’s Rebuttal Statement”);
(m) Following Tenant’s Rebuttal Statement, Landlord shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Tenant;
(n) That, not later than ten (10) business days after the date of the arbitration, the Neutral Arbitrator shall render a decision (the “Ruling”) indicating whether Landlord’s or Tenant’s submitted Option Rent is closer to the Neutral Arbitrator’s determination of what the Fair Market Rent should be for the applicable floor(s) of the Premises or First Offer Space, as applicable, which Ruling shall set forth the facts and reasons for the decision of the Neutral Arbitrator;
(o) That following notification of the Ruling, Landlord’s or Tenant’s submitted Option Rent determination, whichever is selected by the Neutral Arbitrator as being closer to the Option Rent shall become the then applicable Option Rent; and
(p) That the decision of the Neutral Arbitrator shall be binding on Landlord and Tenant.
(q) If a date by which an event described in Section 2.2.3.3, above, is to occur falls on a weekend or a holiday, the date shall be deemed to be the next business day. If the parties fail to enter into an Arbitration Agreement within ten (10) days following the appointment of the Neutral Arbitrator, then the arbitration shall nonetheless proceed in accordance with this Section 2.2.3 notwithstanding such failure.
2.2.3.4 In the event that the Option Rent (or First Offer Rent, as applicable) shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term for a Tranche of the Premises (or prior to the First Offer Commencement Date, as the case may be), Tenant shall be required to pay Base Rent then in effect with respect to such Tranche of the Premises the Option Rent (or First Offer Rent, as applicable) initially provided by Landlord to Tenant, and upon the final determination of the Option Rent (or First Offer Rent, as applicable), the payments made by Tenant shall be reconciled with the actual amounts of Option Rent (or First Offer Rent, as applicable) due, and the appropriate party shall make any corresponding payment to the other party within thirty (30) calendar days after the Option Rent for such Tranche of the Premises (or First Offer Rent, as applicable) has finally been determined.
2.2.3.5 Upon final determination of the Option Rent for each Tranche of the Premises, Landlord and Tenant shall execute an amendment reflecting Tenant’s exercise of the applicable extension option and the extension of the Lease Term and the Option Rent for such Tranche of the Premises as finally determined.
Appears in 1 contract
Samples: Sublease (Twilio Inc)
Determination of Market Rent. If In the event Tenant timely and appropriately objects or is deemed to have objected to the Market Rent in Tenant’s AcceptanceRent, Landlord and Tenant shall attempt to agree upon the Market Rent using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one sixty (2160) days following Tenant’s Acceptance objection or deemed objection to the Landlord’s Option Rent Calculation (the (the “Outside Agreement Date”), then (i) in connection with the Option Rent, Landlord’s Option Rent Calculation and Tenant’s Option Rent Calculation, each party as previously delivered to the other party, shall be submitted to the arbitrators pursuant to the TCCs of this Section 2.2.4, and (ii) in connection with any other contested calculation of market Rent, the parties shall each make a separate determination of the Market Rent which and shall submit the same to the arbitrators pursuant to the TCCs of this Section 2.2.4. The submittals shall be made concurrently with the selection of the arbitrators pursuant to this Section 2.2.4 and shall be submitted to each other and to arbitration in accordance with Section 2.2.4.1 through 2.2.4.7 of this Lease, but subject to the following items (i) through (vii):conditions, when appropriate, of Section 2.2.3.
(i) 2.2.4.1 Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, appoint one arbitrator who shall by profession be a current real estate broker broker, appraiser or appraiser attorney who shall have been active over the five (5) year period ending on the date of commercial such appointment in the leasing (or appraisal, as the case may be) of first-class office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) yearsComparable Area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent Rent, is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item Section 2.2.2 of this Lease. Each such arbitrator shall be appointed within fifteen (b15) days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed (“Advocate Arbitrators”), above.
(ii) 2.2.4.2 The two (2) arbitrators Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within five ten (510) business days of the date of the appointment of the last appointed arbitrator Advocate Arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitratorsAdvocate Arbitrators except that neither the Landlord or Tenant or either party’s Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior to subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
(iii) 2.2.4.3 The three (3) arbitrators shall within fifteen thirty (1530) days of the appointment of the third arbitrator Neutral Arbitrator reach a decision as to Market Rent and determine whether the parties shall use Landlord’s or Tenant’s determination of Market Rent as submitted pursuant to Section 2.2.4.1 and Section 2.2.3 of this Lease is closest to Market Rent as determined by the arbitrators and simultaneously publish a ruling (“Award”) indicating whether Landlord’s or Tenant’s submitted Market Rent is closest to the Market Rent as determined by the arbitrators. Following notification of the Award, the Landlord’s or Tenant’s submitted Market Rent determination, whichever is selected by the arbitrators as being closest to Market rent shall become the then applicable Market Rent, and shall notify Landlord and Tenant thereof.
(iv) 2.2.4.4 The decision of Award issued by the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) 2.2.4.5 If either Landlord or Tenant fails fail to appoint an arbitrator Advocate Arbitrator within ten fifteen (1015) days after the applicable Outside Agreement Date, either party may petition the arbitrator appointed by one presiding judge of them shall reach a decisionthe Superior Court of San Diego County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.4.1 of this Lease, notify Landlord and Tenant thereofor if he or she refuses to act, and either party may petition any judge having jurisdiction over the parties to appoint such arbitrator’s decision shall be binding upon Landlord and TenantAdvocate Arbitrator.
(vi) 2.2.4.6 If the two arbitrators Advocate Arbitrators fail to agree upon and appoint a third arbitratorthe Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Diego County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.4.1 of this Lease, or both if he or she refuses to act, either party may petition any judge having jurisdiction over the parties fail to appoint an such arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) 2.2.4.7 The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Samples: Office Lease (Memec Inc)
Determination of Market Rent. If In the event Tenant timely and appropriately objects or is deemed to have objected to the Market Rent in Tenant’s AcceptanceRent, Landlord and Tenant shall attempt to agree upon the Market Rent using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one sixty (2160) days following Tenant’s Acceptance 's objection or deemed objection to the Landlord's Option Rent Calculation (“Outside Agreement Date”the "OUTSIDE AGREEMENT DATE"), then each party shall make a separate determination the issue of the Market Option Rent which shall be submitted to arbitration pursuant to the TCCs of this SECTION 2.2.4, but subject to the conditions, when appropriate, of SECTIONS 2.2.2 AND 2.2.3; provided, however, Landlord and Tenant may each other amend, respectively, Landlord's Option Rent Calculation and Tenant's Option Rent Calculation, prior to arbitration in accordance such submittal to arbitration; provided further, however, that with regard to the following items determination of Option Rent only (as opposed to First Offer Rent), Tenant may elect to rescind its Exercise Notice by delivery written notice thereof to Landlord on or before the later to occur of (i) through the Outside Agreement Date, or (vii):ii) the date which is two (2) business days following Landlord's submittal to Tenant of its final (post-amended, if applicable) Landlord's Option Rent Calculation.
(i) 2.2.4.1 Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, appoint one arbitrator who shall by profession be a current real estate broker or appraiser of commercial office properties in the immediate vicinity of the Project, and who has shall have been active in such field over the last five (5) yearsyear period ending on the date of such appointment in the leasing of first-class office/lab/manufacturing properties in the Comparable Area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's Option Rent Calculation or Tenant’s submitted Market 's Option Rent Calculation, is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item SECTION 2.2.2 of this Lease. Each such arbitrator shall be appointed within fifteen (b15) days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed ("ADVOCATE ARBITRATORS"), above.
(ii) 2.2.4.2 The two (2) arbitrators Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within five ten (510) business days of the date of the appointment of the last appointed arbitrator Advocate Arbitrator to agree upon and appoint a third arbitrator ("NEUTRAL ARBITRATOR") who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitratorsAdvocate Arbitrators except that neither the Landlord or Tenant or either party's Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior to, or subsequent to, his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord's counsel and Tenant's counsel.
(iii) 2.2.4.3 The three (3) arbitrators shall within fifteen thirty (1530) days of the appointment of the third arbitrator Neutral Arbitrator reach a decision as to Market Rent and determine whether the parties shall use Landlord’s 's Option Rent Calculation or Tenant’s 's Option Rent Calculation as submitted pursuant to SECTION 2.2.4 of this Lease is closest to Market Rent as determined by the arbitrators and simultaneously publish a ruling ("AWARD") indicating whether Landlord's Option Rent Calculation or Tenant's Option Rent Calculation is closest to the Market Rent as determined by the arbitrators. Following notification of the Award, the Landlord's Option Rent Calculation or Tenant's Option Rent Calculation, whichever is selected by the arbitrators as being closest to Market Rent shall become the then applicable Market Rent, and shall notify Landlord and Tenant thereof.
(iv) 2.2.4.4 The decision of Award issued by the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) 2.2.4.5 If either Landlord or Tenant fails fail to appoint an arbitrator Advocate Arbitrator within ten fifteen (1015) days after the applicable Outside Agreement Date, either party may petition the arbitrator appointed by one presiding judge of them shall reach a decisionthe Superior Court of San Diego County to appoint such Advocate Arbitrator subject to the criteria in SECTION 2.2.4.1 of this Lease, notify Landlord and Tenant thereofor if he or she refuses to act, and either party may petition any judge having jurisdiction over the parties to appoint such arbitrator’s decision shall be binding upon Landlord and TenantAdvocate Arbitrator.
(vi) 2.2.4.6 If the two arbitrators Advocate Arbitrators fail to agree upon and appoint a third arbitratorthe Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Diego County to appoint the Neutral Arbitrator, subject to criteria in SECTION 2.2.4.1 of this -12- Lease, or both if he or she refuses to act, either party may petition any judge having jurisdiction over the parties fail to appoint an such arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) 2.2.4.7 The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Samples: Lease (Vical Inc)
Determination of Market Rent. Upon notification from Tenant of the exercise of a renewal option, Landlord shall within 10 days thereafter notify Tenant in writing of the proposed Market Rate applicable to the renewal term in question; Tenant shall, within 5 days following receipt of such notice from Landlord, notify Landlord in writing of the acceptance or rejection of the proposed Market Rate. If Tenant timely and appropriately objects fails to respond to Landxxxx'x xesignation of Market Rate within said 5-day period, Tenant shall be deemed to have rejected Landlord's designation of Market Rate for all purposes. In event of rejection by Tenaxx, xxe Market Rate for the Market Rent renewal term in Tenant’s Acceptancequestion shall be determined as follows:
(a) Within 10 days following notification of Tenaxx'x rejection (or Tenaxx'x xeemed rejection), Landlord and Tenant shall each appoint an appraiser. Any appraiser appointed hereunder (whether by a party hereto or by an appraiser so appointed, as hereinafter provided) shall be impartial, have an office in Dentxx, Xxxxxx xx Tarrant County, shall have at least ten (10) years' experience as a real estate appraiser of office/industrial buildings in the Dentxx, Xxxxxx xxx Tarrxxx Xxxnty areas (or shall have at least ten (10) years' experience in leasing office/industrial space in the Dentxx, Xxxxxx xxx Tarrant County areas), and shall be a member of the American Institute of Real Estate Appraisers or a successor or similar organization of recognized national standing, some of whose members are frequently employed for appraisal purposes by federal or state governments. The two appraisers appointed shall meet promptly and attempt to agree on a determination of the Market Rate for the renewal term in question. The determination of Market Rate by the two appraisers, if they agree, shall be binding on Landlord and Tenant. If the Market Rate determinations of the two appraisers differ by an amount equal to or less than five percent (5%) of the higher of the two determinations of Market Rate, then the Market Rate shall be equal to the arithmetic mean of the two determinations.
(b) If the two appraisers cannot agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement Rate for the renewal term in question within twenty-one (21) 10 days following Tenant’s Acceptance their appointment, or if their determinations of Market Rate differ by more than five percent (“Outside Agreement Date”)5%) of the higher of the two determinations of Market Rate, then the two appointees shall select a third appraiser, but if they are unable to agree on a third appraiser within 5 days, then each party appraiser shall make select the names of two willing persons qualified to be appraisers hereunder and from the four persons so named, one name shall be drawn by lot by a separate determination representative of Tenant in the presence of a representative of Landlord, and the person whose name is so drawn shall be the third appraiser. If either of the Market Rent which first two appraisers fails to select the names of two willing, qualified appraisers and to cooperate with the other appraiser so that a third appraiser can be selected by lot, as aforesaid, the third appraiser shall be submitted to each selected by lot from the two appraisers which were selected by the other and to arbitration in accordance with appraiser for the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) yearsdrawing. The determination of three appraisers so selected shall confer and immediately proceed to determine the arbitrators shall be limited solely Market Rate for the renewal term in question. If the three appraisers fail to the issue of whether Landlord’s or Tenant’s submitted agree on such Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall Rate within five (5) business 10 days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of after the appointment of the third arbitrator reach a decision as appraiser, the average of the two determinations of Market Rate which are closer to whether each other than the parties third determination of Market Rate shall use Landlord’s or Tenant’s submitted be the Market Rent, and shall notify Landlord and Tenant thereofRate for the renewal term in question.
(ivc) The decision appraisers selected hereunder shall deliver a signed written report of their appraisal, or the average of the majority two closer appraisals, as the case may be, to Tenant and Landlord. The fee of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or appraiser initially selected by Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) The cost of arbitration shall be paid by Tenaxx, xxe fee of the appraiser initially selected by Landlord shall be paid by Landxxxx, xxd the fee of any third appraiser and any expenses reasonably incident to the appraisal (except attorneys' fees, which shall be borne by the party incurring the same) shall be shared equally by Tenaxx xxx Landlord. Any vacancy in the office of the appraiser appointed by Tenant equallyshall be filled by Tenant, any vacancy in the office of the appraiser appointed by Landlord shall be filled by Landlord, and any vacancy in the office of the third appraiser shall be filled by the first two appraisers in the manner specified above for the selection of a third appraiser.
(d) If appraisal proceedings are initiated as provided above in order to determine the Market Rate which is applicable to the renewal term in question, the decision and award of the appraisers as to such Market Rate shall be final, conclusive, and binding on the parties, absent settlement by agreement of the parties prior to the rendering by the appraisers of any such decision and award. If the Market Rate is not finally determined prior to the commencement of the renewal term in question, Tenant shall pay Base Rent based upon Base Rent theretofore in effect under this Lease until the final determination of the Market Rate for the renewal term in question occurs as provided above. If the final determination of such Market Rate is different from the amount paid by Tenant, Tenant shall promptly pay to Landlord any deficiency in Base Rent or Landlord shall promptly pay to Tenant any overpayment of Base Rent from the commencement of the renewal term in question until such final determination.
(e) Each party shall act in a timely manner and shall reasonably cooperate with the other (and shall cause the appraiser selected by such party to act in a timely manner and cooperate) such that the Market Rate is determined no later than the date that is nine (9) months prior to the expiration of the then current Term.
Appears in 1 contract
Samples: Lease Agreement (Advancepcs)
Determination of Market Rent. If Tenant timely and appropriately objects to When the terms of this Lease provide that Market Rent in Tenant’s Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one (21) days following Tenant’s Acceptance (“Outside Agreement Date”), then each party shall make a separate determination of the Market Rent which shall be submitted determined by reference to each other and to arbitration in accordance with this Section 33.3, the following items (i) through (vii):procedures shall apply:
(i1) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall within Within five (5) business days following the end of the date Tenant Response Period, each of Tenant and Landlord shall choose a real estate broker who has at least fifteen (15) years’ full-time commercial leasing brokerage experience in the appointment City of New Haven (an “Advocate Arbitrator”) and shall notify the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification other party in writing of the initial its selection. Within two (2) arbitratorsbusiness days following appointment of their respective Advocate Arbitrators, each party shall notify the other of such appointment, which notice shall include the name and address of the appointed Advocate Arbitrator and a brief description of such Advocate Arbitrator’s experience and qualifications. If a party does not appoint an Advocate Arbitrator within such five (5) day period, the single Advocate Arbitrator appointed shall be the sole Advocate Arbitrator and shall establish the Market Rent for the Extension Term.
(iii2) The three Each Advocate Arbitrator shall make a determination of the Market Rent for the Premises using the guidelines described in Section 33.1, above. If the two determinations differ by less than five percent (35%), the Market Rent shall be the mathematical average of the two determinations. If the two determinations differ by five percent (5%) arbitrators or more, the Advocate Arbitrators shall within mutually appoint a third Advocate Arbitrator who shall also be a broker meeting the qualifications above and who shall not have been engaged by either party during the five (5) year period immediately prior to his or her appointment (the “Neutral Arbitrator”). Within fifteen (15) days of following the appointment of the third arbitrator reach Neutral Arbitrator, each Advocate Arbitrator shall attend a hearing before such Neutral Arbitrator wherein each Advocate Arbitrator shall submit a report setting forth its determination of the Market Rent, together with such information on comparable rentals, or such other evidence as Advocate Arbitrator shall deem relevant. The Neutral Arbitrator shall, within thirty (30) days following such hearing and submission of evidence render this decision as to whether by selecting the parties shall use determination of Market Rent submitted by either Landlord’s Advocate Arbitrator or Tenant’s submitted Advocate Arbitrator which, in the judgment of the Neutral Arbitrator, most nearly reflects the Market Rent. It is expressly understood that such Neutral Arbitrator shall have no power or authority to select any Market Rent other than a Market Rent submitted by Landlord’s Advocate Arbitrator or Tenant’s Advocate Arbitrator, and the decision of such Neutral Arbitrator shall notify Landlord be final and Tenant thereofbinding upon the parties hereto. Notwithstanding the foregoing to the contrary, in no event shall the Market Rent be determined to be less than the 101.5% of the rate of Fixed Rent last payable with respect to the period of the Term ending prior to the applicable Extension Term.
(iv3) The decision Each party shall pay the fees and expenses of the majority Advocate Arbitrator designated by such party, and one-half (1/2) of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment expenses of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d)Neutral Arbitrator.
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Samples: Lease Agreement (Arvinas, Inc.)
Determination of Market Rent. If Tenant timely and appropriately objects to the Market Rent in Tenant’s Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one thirty (2130) days following Tenant’s Acceptance (“Outside Agreement Date”), then the matter shall be submitted to binding arbitration, in which case each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or MAI appraiser of commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration AssociationJAMS (defined in Article 38 below), but subject to the instruction set forth in this item (d).
(vii) The cost Each party shall pay the fees and expenses of arbitration shall be paid the arbitrator appointed by Landlord such party and Tenant equallyone-half (1/2) of the fees and expenses of the third arbitrator.
Appears in 1 contract
Determination of Market Rent. If In the event Tenant timely and appropriately objects exercises an option to extend the Lease Term, or if Tenant irrevocably exercises its right of first offer with respect to the entire space described in a First Offer Notice and rejects the First Offer Rent and other economic terms set forth in the First Offer Notice, then Landlord shall (i) with respect to Market Rent for the Premises during the Option Term, notify Tenant of Landlord’s determination of the Market Rent in on or before the Lease Expiration Date, and (ii) with respect to Tenant’s Acceptancelease of First Offer Space, notify Tenant of Landlord determination of the Market Rent applicable to the First Offer Space (which may or may not be the same as the First Offer Rent set forth in the First Offer Notice) on or before the First Offer Commencement Date. If Tenant, on or before the date which is thirty (30) days following the date upon which Tenant receives Landlord’s determination of the applicable Market Rent pursuant to the immediately preceding sentence, in good faith objects to Landlord’s determination of the Market Rent, then Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one thirty (2130) days following Tenant’s Acceptance objection to the Market Rent (the “Outside Agreement Date”), then each party shall make a separate determination of the Market Rent which within five (5) days, and such determinations shall be submitted to each other and to arbitration in accordance with the following items (i) Sections 2.2.4.1 through (vii):2.2.4.7, below.
(i) 2.2.4.1 Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, appoint one arbitrator who shall by profession be a current real estate broker broker, appraiser or appraiser attorney who shall have been active over the five (5) year period ending on the date of commercial such appointment in the leasing (or appraisal, as the case may be) of first-class office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) yearsComparable Area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent Rent, is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item Section 2.2.2 of this Lease. Each such arbitrator shall be appointed within fifteen (b15) days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed (“Advocate Arbitrators”), above.
(ii) 2.2.4.2 The two (2) arbitrators Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within five ten (510) business days of the date of the appointment of the last appointed arbitrator Advocate Arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitratorsAdvocate Arbitrators except that neither the Landlord or Tenant or either party’s Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior to subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
(iii) 2.2.4.3 The three (3) arbitrators shall within fifteen thirty (1530) days of the appointment of the third arbitrator Neutral Arbitrator reach a decision as to Market Rent and determine whether the parties shall use Landlord’s or Tenant’s determination of Market Rent as submitted pursuant to Section 2.2.4 of this Lease is closest to Market Rent as determined by the arbitrators and simultaneously publish a ruling (“Award”) indicating whether Landlord’s or Tenant’s submitted Market Rent is closest to the Market Rent as determined by the arbitrators. Following notification of the Award, the Landlord’s or Tenant’s submitted Market Rent determination, whichever is selected by the arbitrators as being closest to Market rent shall become the then applicable Market Rent, and shall notify Landlord and Tenant thereof.
(iv) 2.2.4.4 The decision of Award issued by the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) 2.2.4.5 If either Landlord or Tenant fails fail to appoint an arbitrator Advocate Arbitrator within ten fifteen (1015) days after the applicable Outside Agreement Date, either party may petition the arbitrator appointed by one presiding judge of them shall reach a decisionthe Superior Court of Los Angeles County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.4.1 of this Lease, notify Landlord and Tenant thereofor if he or she refuses to act, and either party may petition any judge having jurisdiction over the parties to appoint such arbitrator’s decision shall be binding upon Landlord and TenantAdvocate Arbitrator.
(vi) 2.2.4.6 If the two arbitrators Advocate Arbitrators fail to agree upon and appoint a third arbitratorthe Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of Los Angeles County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.4.1 of this Lease, or both if he or she refuses to act, either party may petition any judge having jurisdiction over the parties fail to appoint an such arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) 2.2.4.7 The cost of arbitration shall be paid by Landlord and Tenant equally.
2.2.4.8 In the event that the Market Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, or prior to the First Offer Commencement Date, as applicable, then Tenant shall be required to pay the Market Rent initially provided by Landlord to Tenant, and upon the final determination of the Market Rent, the payments made by Tenant shall be reconciled with the actual amounts of Market Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Samples: Office Lease (Ixia)
Determination of Market Rent. If Tenant timely and appropriately objects to the Market Rent in Tenant’s Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one (21) days following Tenant’s Acceptance (“Outside Agreement Date”), then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current real estate broker or appraiser of comparable commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), aboveabove (i.e., the arbitrators may only select Landlord’s or Tenant’s determination of Market Rent and shall not be entitled to make a compromise determination).
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Determination of Market Rent. If Tenant timely and appropriately objects to the Market Rent in Tenant’s Acceptance, Landlord and Tenant shall attempt to agree upon the Market Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one (21) days following Tenant’s Acceptance (“Outside Agreement Date”), then each party shall make a separate determination of the Market Rent which shall be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, one arbitrator who shall by profession be a current licensed real estate leasing broker or appraiser of comparable commercial office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) years. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Market Rent is the closest to the actual Market Rent as determined by the arbitrators, taking into account the requirements of item (b), aboveabove (i.e., the arbitrators may only select Landlord’s or Tenant’s determination of Market Rent and shall not be entitled to make a compromise determination).
(ii) The two (2) arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall within fifteen (15) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Market Rent, and shall notify Landlord and Tenant thereof.
(iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If both parties fail to appoint an arbitrator, then there shall be no determination of Market Rent, and the Option Rent shall be equal to the amounts Tenant is obligated to pay under the Lease on the month immediately preceding the Option Term for Monthly Basic Rental, including all escalations, Direct Costs, Additional Rent and other charges.
(vii) If the two (2) arbitrators fail to agree upon and appoint a third (3rd) arbitrator, or both parties fail the appointment of the third (3rd) arbitrator shall made by one (1) JAMS arbitrator pursuant to appoint an arbitrator, then the JAMS Streamlined Arbitration Rules and Procedures in Chicago. The scope of the JAMS arbitration shall be limited to the appointment of the third arbitrator who will be involved in determining the Market Rent together with the original two arbitrators whom the parties have appointed. The JAMS arbitrator shall have no authority to determine the Market Rent or any other matter. Promptly after the JAMS arbitrator shall be dismissed appoints the third arbitrator for determining the Market Rent, such third arbitrator and the matter to be decided original two arbitrators shall be forthwith submitted to arbitration under determine the provisions of the American Arbitration Association, but subject to the instruction set forth Market Rent as provided in this item (d)Lease.
(viiviii) Judgment on any arbitration decision or award may be entered in any court having jurisdiction. The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Determination of Market Rent. If In the event Tenant timely and appropriately objects exercises its option to extend the Market Lease but rejects the Option Rent set forth in Tenant’s Acceptancethe Landlord Response Notice pursuant to Section 2.2.3, above, then Landlord and Tenant shall attempt to agree upon the Market Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one upon the Option Rent applicable to the Option Term on or before the date that is six (216) days following Tenant’s Acceptance months prior to the expiration of the Lease Term (“the "Outside Agreement Date”"), then each the Option Rent shall be determined by arbitration pursuant to the terms of this Section 2.2.4. Each party shall make a separate determination of the Market Option Rent which (“Tenant’s Final Option Rent Determination” and “Landlord’s Final Option Rent Determination”, respectively), within five (5) business days following the Outside Agreement Date, and such determinations shall be binding and shall be submitted to each other and to arbitration in accordance with Section 2.2.4.1 through Section 2.2.4.4, below. If either party fails to timely submit its determination of the Option Rent, then the other party shall have the right to deliver a notice to the failed party expressly referencing this Section 2.2.4 and the time period for performance hereunder, and if the failed party does not deliver its determination of the Option Rent within five (5) business days following items (i) through (vii):its receipt of such notice, then the determination of the other party timely submitted shall be deemed to be the Option Rent.
(i) 2.2.4.1 Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, appoint one arbitrator who shall by profession be a current MAI appraiser or real estate broker or appraiser who shall have been active over the ten (10) year period ending on the date of commercial such appointment in the appraising and/or leasing of first class, high-rise office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) yearsBuilding. The determination of the arbitrators shall be limited solely to the issue area of whether Tenant's Final Option Rent Determination or Landlord’s or Tenant’s submitted Market 's Final Option Rent Determination is the closest to the actual Market Option Rent as determined by the arbitrators, taking into account the requirements of item Section 2.2.2 of this Lease. Each such arbitrator shall be appointed within fifteen (b15) business days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable), above.
(ii) . The two (2) arbitrators so appointed selected by Landlord and Tenant pursuant to this Section 2.2.4 shall be deemed “Advocate Arbitrators” for purposes of this Section 2.2. If either party fails to timely appoint an Advocate Arbitrator, then the other party may deliver written notice of such failure to the party that failed to timely appoint an Advocate Arbitrator, and if such failure is not cured within five (5) business days following receipt of such written notice, then the date Advocate Arbitrator timely appointed by the other party shall determine the Option Rent and such determination shall be binding upon the parties.
2.2.4.2 The two Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the appointment of the last appointed arbitrator Advocate Arbitrator to agree upon and appoint a third arbitrator ("Neutral Arbitrator") who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators except that (i) neither Landlord, Tenant nor either parties' Advocate Arbitrator may, directly, or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant or any of their affiliates during the five (5) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord's counsel and Tenant's counsel. If the two (2) arbitratorsAdvocate Arbitrators cannot timely agree upon and appoint a Neutral Arbitrator, then Landlord and Tenant shall each apply to the Presiding Judge of the Superior Court of the County of San Francisco to appoint the Neutral Arbitrator.
2.2.4.3 Within ten (iii10) The three days following the appointment of the Neutral Arbitrator, Landlord and Tenant shall enter into an arbitration agreement (3the "Arbitration Agreement") arbitrators which shall within set forth the following:
2.2.4.3.1 Each of Tenant’s Final Option Rent Determination and Landlord’s Final Option Rent Determination exchanged by the parties pursuant to Section 2.2.4, above;
2.2.4.3.2 An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, and shall require the Neutral Arbitrator to demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant or any of their affiliates;
2.2.4.3.3 Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
2.2.4.3.4 That Landlord and Tenant shall each have the right to submit to the Neutral Arbitrator (with a copy to the other party), on or before the date that occurs fifteen (15) days of following the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s Neutral Arbitrator, an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord or Tenant’s submitted Market Rent, and shall notify as the case may be, in support of Landlord's or Tenant's respective determination of Option Rent (the "Briefs");
2.2.4.3.5 That within five (5) business days following the exchange of Briefs, Landlord and Tenant thereof.
shall each have the right to provide the Neutral Arbitrator (ivwith a copy to the other party) The decision with a written rebuttal to the other party's Brief (the "First Rebuttals"); provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party's Brief and shall identify clearly which argument or fact of the majority other party's Brief is intended to be rebutted;
2.2.4.3.6 That within five (5) business days following the parties' receipt of each other's First Rebuttal, Landlord and Tenant, as applicable, shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party's First Rebuttal (the "Second Rebuttals"); provided, however, such Second Rebuttals shall be limited to the facts and arguments raised in the other party's First Rebuttal and shall identify clearly which argument or fact of the other party's First Rebuttal is intended to be rebutted;
2.2.4.3.7 The date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Advocate Arbitrators, Landlord and Tenant, and each party's applicable consultants, which date shall in any event be within forty-five (45) days following the appointment of the Neutral Arbitrator;
2.2.4.3.8 That no discovery shall take place in connection with the arbitration, other than to verify the factual information that is presented by Landlord or Tenant;
2.2.4.3.9 That the Neutral Arbitrator shall not be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant, except that the Neutral Arbitrator shall be permitted to visit the Project and the buildings containing the Comparable Transactions;
2.2.4.3.10 Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) arbitrators hours ("Tenant's Initial Statement");
2.2.4.3.11 Following Tenant's Initial Statement, Landlord shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours ("Landlord's Initial Statement"); provided that Landlord’s Initial Statement shall be presented to the Neutral Arbitrator on the same day as Tenant’s Initial Statement;
2.2.4.3.12 On the next business day following Landlord's Initial Statement, Tenant shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Landlord ("Tenant's Rebuttal Statement");
2.2.4.3.13 Following Tenant's Rebuttal Statement, Landlord shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Tenant ("Landlord’s Rebuttal Statement"); provided that Landlord’s Rebuttal Statement shall be presented to the Neutral Arbitrator on the same day as Tenant’s Rebuttal Statement;
2.2.4.3.14 That, not later than ten (10) business days after the date of the arbitration, the Neutral Arbitrator shall render a decision (the "Ruling") indicating whether Landlord’s Final Option Rent Determination or Tenant’s Final Option Rent Determination is closer to the Neutral Arbitrator's determination of what the Market Rent should be, which Ruling shall set forth the facts and reasons for the decision of the Neutral Arbitrator;
2.2.4.3.15 That following notification of the Ruling, Landlord’s Final Option Rent Determination or Tenant’s Final Option Rent Determination, whichever is selected by the Neutral Arbitrator as being closer to the Option Rent shall become the then applicable Option Rent; and
2.2.4.3.16 That the decision of the Neutral Arbitrator shall be binding upon on Landlord and Tenant.
(v) . If either Landlord a date by which an event described in Section 2.2.4.3, above, is to occur falls on a weekend or Tenant fails a holiday, the date shall be deemed to appoint be the next business day. If the parties fail to enter into an arbitrator Arbitration Agreement within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then following the appointment of the third arbitrator or any arbitrator Neutral Arbitrator, then the arbitration shall nonetheless proceed in accordance with this Section 2.2.4 notwithstanding such failure.
2.2.4.4 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be dismissed required to pay the Base Rent then in effect with respect to the Extension Premises, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts due, and the matter appropriate party shall make any corresponding payment to be decided shall be forthwith submitted to arbitration under the provisions other party within thirty (30) calendar days after the Option Rent has finally been determined.
2.2.4.5 Upon final determination of the American Arbitration AssociationOption Rent, but subject to the instruction set forth in this item (d).
(vii) The cost of arbitration shall be paid by Landlord and Tenant equallyshall execute an amendment reflecting Tenant’s exercise of the applicable extension option and the extension of the Lease Term and the Option Rent as finally determined; provided that the failure of either party to execute such amendment shall not affect the validity of the terms of this Lease that apply to the Option Terms.
Appears in 1 contract
Samples: Office Lease (Okta, Inc.)
Determination of Market Rent. If In the event Tenant timely and appropriately objects or is deemed to the have objected to Landlord's Market Rent in Tenant’s AcceptanceCalculation, Landlord and Tenant shall attempt to agree upon the Market Rent using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one sixty (2160) days following Tenant’s Acceptance 's objection or deemed objection to the Landlord's Market Rent Calculation (“the "Outside Agreement Date”"), then each party shall make a separate determination of in connection with the Option Rent, Landlord's Market Rent which Calculation and Tenant's Market Rent Calculation, each as previously delivered to the other party, shall be submitted to each other the arbitrators pursuant to the TCCs of this Section 2.2.4. The submittals shall be made concurrently with the selection of the arbitrator pursuant to this Section 2.2.4 and shall be submitted to arbitration in accordance with Section 2.2.4.1 through 2.2.4.7 of this Lease, but subject to the following items (i) through (vii):conditions, when appropriate, of Section 2.2.2.
(i) 2.2.4.1 Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, mutually and reasonably select one arbitrator ("Neutral Arbitrator") who shall by profession be a current real estate broker broker, appraiser or appraiser attorney who shall have been active over the five (5) year period ending on the date of commercial such appointment in the leasing (or appraisal, as the case may be) of first-class office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) yearsComparable Area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's Market Rent Calculation or Tenant’s submitted 's Market Rent Calculation is the closest to the actual Market Rent as determined by the arbitratorsNeutral Arbitrator, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall within five (5) business days Section 2.2.2 of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who this Lease. Such Neutral Arbitrator shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall appointed within fifteen (15) days after the Outside Agreement Date. Neither the Landlord or Tenant or either party's Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior to subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord's counsel and Tenant's counsel.
2.2.4.2 The Neutral Arbitrator shall, within thirty (30) days of the appointment of the third arbitrator his/her appointment, reach a decision as to Market Rent and determine whether the parties shall use Landlord’s 's Market Rent Calculation or Tenant’s 's Market Rent Calculation, as submitted pursuant to Section 2.2.4.1 and Section 2.2.3 of this Lease, is closest to Market RentRent as determined by such Neutral Arbitrator and simultaneously publish a ruling ("Award") indicating whether Landlord's Market Rent Calculation or Tenant's Market Rent Calculation is closest to the Market Rent as so determined by the Neutral Arbitrator. Following notification of the Award, the Landlord's Market Rent Calculation or the Tenant's Market Rent Calculation, whichever is selected by the Neutral Arbitrator as being closest to Market Rent shall become the then applicable Market Rent (and the Option Rent shall notify Landlord and Tenant thereofbe established as ninety-five percent (95%) of such Market Rent (with applicable escalations)).
(iv) 2.2.4.3 The decision of Award issued by the majority of the three (3) arbitrators Neutral Arbitrator shall be binding upon Landlord and Tenant.
2.2.4.4 If Landlord and Tenant fail to reasonably and mutually select the Neutral Arbitrator within fifteen (v) If either Landlord or Tenant fails to appoint an arbitrator within ten (1015) days after the applicable Outside Agreement Date, either party may petition the arbitrator appointed by one presiding judge of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail Superior Court of San Diego County to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but such Advocate Arbitrator subject to the instruction set forth criteria in Section 2.2.4.1 of this item (d).Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator. XXXXXX REALTY 571981.06/WLA 0000 Xxxxxxxxx Xxxxx K4064-066/6-8-04/pjr/pjr -8-[STMicroelectronics, Inc.]
(vii) 2.2.4.5 The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Samples: Sublease Agreement (Affymetrix Inc)
Determination of Market Rent. If In the event Tenant timely and appropriately objects or is deemed to have objected to the Market Rent in Tenant’s AcceptanceRent, Landlord and Tenant shall attempt to agree upon the Market Rent using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one thirty (2130) days following Tenant’s Acceptance objection or deemed objection to the Landlord’s Option Rent Calculation (the “Outside Agreement Date”), then each party shall make a separate determination of then, within two (2) business days following such Outside Agreement Date, (x) Landlord may reestablish the Market Landlord’s Option Rent which shall be submitted Calculation by delivering written notice thereof to each other Tenant, and (y) Tenant may reestablish the Tenant’s Option Rent Calculation by delivering written notice thereof to arbitration in accordance with the following items (i) through (vii):
(i) Tenant. If Landlord and Tenant shall each appoint, thereafter fail to reach agreement within ten seven (107) business days of the Outside Agreement Date, then in connection with the Option Rent, Landlord’s Option Rent Calculation and Tenant’s Option Rent Calculation, each as most recently delivered to the other party pursuant to Section 2.2 or Section 2.3, shall be submitted to the “Neutral Arbitrator,” as that term is defined in Section 2.3.1 of this Exhibit, pursuant to this Section 2.3. The submittals shall be made concurrently with the selection of the Neutral Arbitrator pursuant to this Section 2.2.4 and shall be submitted to arbitration in accordance with Section 2.3.1 through 2.3.4 of this Exhibit, but subject to the conditions, of this Exhibit.
2.3.1 Landlord and Tenant shall mutually, reasonably appoint one (1) arbitrator who shall by profession be a current real estate broker broker, appraiser or appraiser of commercial office properties in the immediate vicinity of the Project, and attorney who has shall have been active in such field over the last five (5) yearsyear period ending on the date of such appointment in the leasing (or appraisal, as the case may be) of first-class office building properties in the Comparable Area (the “Neutral Arbitrator”). The determination of the arbitrators Neutral Arbitrator shall be limited solely to the issue of whether Landlord’s Option Rent Calculation or Tenant’s Option Rent Calculation, each as submitted Market Rent to the Neutral Arbitrator pursuant to Section 2.3, above, is the closest to the actual Market Rent as determined by the arbitratorssuch Neutral Arbitrator, taking into account the requirements of item (b), above.
(ii) The two (2) arbitrators so appointed shall within five (5) business days Section 2.1 of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who this Exhibit. Such Neutral Arbitrator shall be qualified under the same criteria set forth hereinabove for qualification of the initial two (2) arbitrators.
(iii) The three (3) arbitrators shall appointed within fifteen (15) days after the applicable Outside Agreement Date. Neither the Landlord nor Tenant may, directly or indirectly, consult with the Neutral Arbitrator prior to subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.3.2 The Neutral Arbitrator shall, within thirty (30) days of the appointment of the third arbitrator his/her appointment, reach a decision as to Market Rent and determine whether the parties shall use Landlord’s Option Rent Calculation or Tenant’s Option Rent Calculation, each as submitted to the Neutral Arbitrator pursuant to Section 2.3, above, is closest to Market Rent as determined by such Neutral Arbitrator and simultaneously publish a ruling (“Award”) indicating whether Landlord’s Option Rent Calculation or Tenant’s Option Rent Calculation is closest to the Market Rent as determined by such Neutral Arbitrator. Following notification of the Award, the Landlord’s Option Rent Calculation or Tenant’s Option Rent Calculation, whichever is selected by the Neutral Arbitrator as being closest to Market Rent, and shall notify Landlord and Tenant thereofbecome the then applicable Option Rent.
(iv) 2.3.3 The decision of the majority of the three (3) arbitrators Award issued by such Neutral Arbitrator shall be binding upon Landlord and Tenant.
(v) 2.3.4 If either Landlord or and Tenant fails fail to appoint an arbitrator the Neutral Arbitrator within ten fifteen (1015) days after the applicable Outside Agreement Date, either party may petition the arbitrator appointed by one presiding judge of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail Superior Court of Contra Costa County to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but such Neutral Arbitrator subject to the instruction set forth criteria in Section 2.3 of this item (d)Exhibit, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Neutral Arbitrator.
(vii) 2.3.5 The cost of arbitration shall be paid by Landlord and Tenant equally.
Appears in 1 contract
Samples: Office Lease (Selectica Inc)
Determination of Market Rent. If In the event Tenant timely and appropriately objects exercises its option to extend the Market Lease but rejects the Option Rent set forth in Tenant’s Acceptancethe Option Rent Notice pursuant to Section 2.2.3, above, then Landlord and Tenant shall attempt to agree upon the Market Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one upon the Option Rent applicable to the Option Term on or before the date that is ninety (2190) days following Tenant’s Acceptance prior to the expiration of the initial Lease Term (the “Outside Agreement Date”), then each the Option Rent shall be determined by arbitration pursuant to the terms of this Section 2.2.4. Each party shall make a separate determination of the Market Rent which Option Rent, within five (5) days following the Outside Agreement Date, and such determinations shall be submitted to each other and to arbitration in accordance with the following items (i) Section 2.2.4.1 through (vii):Section 2.2.4.4, below.
(i) 2.2.4.1 Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, appoint one arbitrator who shall by profession be a current MAI appraiser, real estate broker broker, or appraiser real estate lawyer who shall have been active over the five (5) year period ending on the date of commercial such appointment in the appraising and/or leasing of first class office properties in the immediate vicinity of the Project, and who has been active in such field over the last five (5) yearsBuilding. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Market Option Rent is the closest to the actual Market Option Rent as determined by the arbitrators, taking into account the requirements of item Section 2.2.2 of this Lease. Each such arbitrator shall be appointed within fifteen (b15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable), above. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
(ii) 2.2.4.2 The two (2) arbitrators Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within five ten (510) business days of the date of the appointment of the last appointed arbitrator Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators except that (2i) arbitratorsneither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly, or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant during the five (5) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.4.3 Within ten (iii10) The three days following the appointment of the Arbitrator, Landlord and Tenant shall enter into an arbitration agreement (3the “Arbitration Agreement”) arbitrators which shall within set forth the following:
2.2.4.3.1 Each of Landlord’s and Tenant’s best and final and binding determination of the Option Rent exchanged by the parties pursuant to Section 2.2.4, above;
2.2.4.3.2 An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, and shall require the Neutral Arbitrator to demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant;
2.2.4.3.3 Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
2.2.4.3.4 That Landlord and Tenant shall each have the right to submit to the Neutral Arbitrator (with a copy to the other party), on or before the date that occurs fifteen (15) days of following the appointment of the third arbitrator reach a decision Neutral Arbitrator, an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord or Tenant, as to whether the parties shall use case may be, in support of Landlord’s or Tenant’s submitted Market Rentrespective determination of Option Rent (the “Briefs”);
2.2.4.3.5 That within five (5) business days following the exchange of Briefs, and shall notify Landlord and Tenant thereof.
shall each have the right to provide the Neutral Arbitrator (ivwith a copy to the other party) The decision with a written rebuttal to the other party’s Brief (the “First Rebuttals”); provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party’s Brief and shall identify clearly which argument or fact of the majority other party’s Brief is intended to be rebutted;
2.2.4.3.6 That within five (5) business days following the parties’ receipt of each other’s First Rebuttal, Landlord and Tenant, as applicable, shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s First Rebuttal (the “Second Rebuttals”); provided, however, such Second Rebuttals shall be limited to the facts and arguments raised in the other party’s First Rebuttal and shall identify clearly which argument or fact of the other party’s First Rebuttal is intended to be rebutted;
2.2.4.3.7 The date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Advocate Arbitrators, Landlord and Tenant, and each party’s applicable consultants, which date shall in any event be within forty-five (45) days following the appointment of the Neutral Arbitrator;
2.2.4.3.8 That no discovery shall take place in connection with the arbitration, other than to verify the factual information that is presented by Landlord or Tenant;
2.2.4.3.9 That the Neutral Arbitrator shall not be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant, except that the Neutral Arbitrator shall be permitted to visit the Project and the buildings containing the Comparable Transactions;
2.2.4.3.10 The specific persons that shall be allowed to attend the arbitration;
2.2.4.3.11 Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) arbitrators hours (“Tenant’s Initial Statement”);
2.2.4.3.12 Following Tenant’s Initial Statement, Landlord shall be binding upon Landlord and Tenant.
(v) If either Landlord or Tenant fails have the right to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject present oral arguments to the instruction set forth in this item Neutral Arbitrator at the arbitration for a period of time not to exceed three (d3) hours (“Landlord’s Initial Statement”).
; 2.2.4.3.13 Following Landlord’s Initial Statement, Tenant shall have up to two (vii2) The cost additional hours to present additional arguments and/or to rebut the arguments of arbitration shall be paid by Landlord and Tenant equally.(“Tenant’s Rebuttal Statement”);
Appears in 1 contract
Samples: Sublease Agreement (Amplitude, Inc.)
Determination of Market Rent. If In the event Tenant timely and appropriately objects exercises its option to extend the Market Lease but rejects the Option Rent set forth in Tenant’s Acceptancethe Landlord's Option Rent Calculation pursuant to Section 2.2.3, above, then Landlord and Tenant shall attempt to agree upon the Market Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one upon the Option Rent applicable to the Option Term on or before the date that is ninety (2190) days following Tenant’s Acceptance prior to the expiration of the initial Lease Term (“the "Outside Agreement Date”"), then each party then, within two (2) business days following such Outside Agreement Date, (x) Landlord may reestablish the Landlord's Option Rent Calculation by delivering written notice thereof to Tenant (provided that such reestablished calculation shall make a separate determination of not be greater than Landlord's initial calculation), and (y) Tenant may reestablish the Market Tenant's Option Rent which Calculation by delivering written notice thereof to Landlord (provided that such reestablished calculation shall not be submitted to each other and to arbitration in accordance with the following items (i) through (vii):
(i) less than Tenant's initial calculation). If Landlord and Tenant shall each appoint, thereafter fail to reach agreement within ten seven (107) business days of the Outside Agreement Date, the most recently established Landlord's Option Rent Calculation and Tenant's Option Rent Calculation shall be submitted to arbitration in accordance with Section 2.2.4.1 through Section 2.2.4.4, below.
2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a current MAI appraiser, real estate broker broker, or appraiser of commercial office properties in the immediate vicinity of the Project, and real estate lawyer who has shall have been continuously active in such field over the last five (5) yearsyear period ending on the date of such appointment in the appraising and/or leasing of Comparable Buildings. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s 's or Tenant’s 's submitted Market Option Rent is the closest to the actual Market Option Rent as determined by the arbitrators, taking into account the requirements of item Section 2.2.2 of this Lease. Each such arbitrator shall be appointed within fifteen (b15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable), above. The arbitrators so selected by Landlord and Tenant shall be deemed "Advocate Arbitrators."
(ii) 2.2.4.2 The two (2) arbitrators Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within five ten (510) business days of the date of the appointment of the last appointed arbitrator Advocate Arbitrator to agree upon and appoint a third arbitrator ("Neutral Arbitrator") who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators except that (2i) arbitratorsneither the Landlord or Tenant or either parties' Advocate Arbitrator may, directly, or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant during the five (5) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord's counsel and Tenant's counsel.
2.2.4.3 Within ten (iii10) The three business days following the appointment of the Neutral Arbitrator, Landlord and Tenant shall enter into an arbitration agreement (3the "Arbitration Agreement") arbitrators which shall within set forth the following:
2.2.4.3.1 Each of Landlord's and Tenant's most recently delivered, best and final and binding determination of the Option Rent pursuant to Section 2.2.4, above;
2.2.4.3.2 An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, and shall require the Neutral Arbitrator to demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant;
2.2.4.3.3 Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
2.2.4.3.4 That Landlord and Tenant shall each have the right to submit to the Neutral Arbitrator (with a copy to the other party), on or before the date that occurs fifteen (15) days of following the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s Neutral Arbitrator, an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord or Tenant’s submitted Market Rent, and shall notify as the case may be, in support of Landlord's or Tenant's respective determination of Option Rent (the "Briefs");
2.2.4.3.5 That within five (5) business days following the exchange of Briefs, Landlord and Tenant thereof.
shall each have the right to provide the Neutral Arbitrator (ivwith a copy to the other party) The decision with a written rebuttal to the other party's Brief (the "First Rebuttals"); provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party's Brief and shall identify clearly which argument or fact of the majority other party's Brief is intended to be rebutted;
2.2.4.3.6 That within five (5) business days following the parties' receipt of each other's First Rebuttal, Landlord and Tenant, as applicable, shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party's First Rebuttal (the "Second Rebuttals"); provided, however, such Second Rebuttals shall be limited to the facts and arguments raised in the other party's First Rebuttal and shall identify clearly which argument or fact of the other party's First Rebuttal is intended to be rebutted;
2.2.4.3.7 The date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Advocate Arbitrators, Landlord and Tenant, and each party's applicable consultants, which date shall in any event be within forty-five (45) days following the appointment of the Neutral Arbitrator;
2.2.4.3.8 That no discovery shall take place in connection with the arbitration, other than to verify the factual information that is presented by Landlord or Tenant;
2.2.4.3.9 That the Neutral Arbitrator shall not be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant, except that the Neutral Arbitrator shall be permitted to visit the Project and the buildings containing the Comparable Transactions;
2.2.4.3.10 The specific persons that shall be allowed to attend the arbitration;
2.2.4.3.11 Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) arbitrators hours ("Tenant's Initial Statement");
2.2.4.3.12 Following Tenant's Initial Statement, Landlord shall be binding upon have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours ("Landlord's Initial Statement");
2.2.4.3.13 Following Landlord's Initial Statement, Tenant shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Landlord and ("Tenant.'s Rebuttal Statement");
2.2.4.3.14 Following Tenant's Rebuttal Statement, Landlord shall have up to two (v2) If either Landlord or Tenant fails additional hours to appoint an arbitrator within present additional arguments and/or to rebut the arguments of Tenant;
2.2.4.3.15 That, not later than ten (10) days after the applicable Outside Agreement Datedate of the arbitration, the arbitrator appointed Neutral Arbitrator shall render a decision (the "Ruling") indicating whether Landlord's or Tenant's submitted Option Rent is closer to the Option Rent;
2.2.4.3.16 That following notification of the Ruling, Landlord's or Tenant's submitted Option Rent determination, whichever is selected by one the Neutral Arbitrator as being closer to the Option Rent shall become the then applicable Option Rent; and
2.2.4.3.17 That the decision of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision the Neutral Arbitrator shall be binding upon on Landlord and Tenant.
(vi) 2.2.4.3.18 If a date by which an event described in Section 2.2.4.3, above, is to occur falls on a weekend or a holiday, the two arbitrators fail date shall be deemed to agree upon and appoint a third arbitrator, or both parties fail be the next business day.
2.2.4.4 In the event that the Option Rent shall not have been determined pursuant to appoint an arbitrator, then the appointment terms hereof prior to the commencement of the third arbitrator or any arbitrator Option Term, Tenant shall be dismissed and required to pay the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration AssociationOption Rent, but subject to the instruction set forth in this item (d).
(vii) The cost Landlord's final pre-arbitration Landlord Option Rent Calculation, and upon the final determination of arbitration the Option Rent, the payments made by Tenant shall be paid by Landlord reconciled with the actual amounts due, and Tenant equallythe appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Determination of Market Rent. If In the event Tenant timely and appropriately objects exercises its option to extend the Market Lease but does not affirmatively accept in writing or rejects the Option Rent set forth in Tenant’s AcceptanceLandlord's Option Rent Calculation pursuant to Section 11.3, above, then Landlord and Tenant shall attempt to agree upon the Market Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within twenty-one upon the Option Rent applicable to the Option Term on or before the date that is ninety (2190) days following Tenant’s Acceptance prior to the expiration of the then Lease Term (“the "Outside Agreement Date”"), then each the Option Rent shall be determined by arbitration pursuant to the terms of this Section 11.4. Each party shall make a separate determination of the Market Rent which Option Rent, within five (5) days following the Outside Agreement Date, and such determinations shall be submitted to each other and to arbitration in accordance with the following items (i) Section 11.4.1 through (vii):Section 11.4.4, below.
(i) 11.4.1 Landlord and Tenant shall each appoint, within ten (10) days of the Outside Agreement Date, appoint one arbitrator who shall by profession be a current MAI appraiser, real estate broker broker, or appraiser of commercial office properties in the immediate vicinity of the Project, and real estate lawyer who has shall have been active in such field over the last five (5) yearsyear period ending on the date of such appointment in the appraising and/or leasing of "Comparable Buildings" (as defined in Exhibit D). The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s 's or Tenant’s 's submitted Market Option Rent is the closest to the actual Market Option Rent as determined by the arbitrators, taking into account the requirements of item Section 11.2 of this Fourth Amendment. Each such arbitrator shall be appointed within fifteen (b15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable), above. The arbitrators so selected by Landlord and Tenant shall be deemed "Advocate Arbitrators."
(ii) 11.4.2 The two (2) arbitrators Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within five ten (510) business days of the date of the appointment of the last appointed arbitrator Advocate Arbitrator to agree upon and appoint a third arbitrator ("Neutral Arbitrator") who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators except that (i) neither the Landlord or Tenant or either parties' Advocate Arbitrator may, directly, or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant during the five (5) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord's counsel and Tenant's counsel.
11.4.3 Within ten (10) business days following the appointment of the Neutral Arbitrator, Landlord and Tenant shall enter into an arbitration agreement (the "Arbitration Agreement") which shall set forth the following:
11.4.3.1 Each of Landlord's and Tenant's best and final and binding determination of the Option Rent exchanged by the parties pursuant to Section 11.4, above;
11.4.3.2 An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Fourth Amendment, as modified by the Arbitration Agreement, and shall require the Neutral Arbitrator to demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant;
11.4.3.3 Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
11.4.3.4 That Landlord and Tenant shall each have the right to submit to the Neutral Arbitrator (with a copy to the other party), on or before the date that occurs fifteen (15) business days following the appointment of the Neutral Arbitrator, an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord or Tenant, as the case may be, in support of Landlord's or Tenant's respective determination of Option Rent (the "Briefs");
11.4.3.5 That within five (5) business days following the exchange of Briefs, Landlord and Tenant shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party's Brief (the "First Rebuttals"); provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party's Brief and shall identify clearly which argument or fact of the other party's Brief is intended to be rebutted;
11.4.3.6 That within five (5) business days following the parties' receipt of each other's First Rebuttal, Landlord and Tenant, as applicable, shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party's First Rebuttal (the "Second Rebuttals"); provided, however, such Second Rebuttals shall be limited to the facts and arguments raised in the other party's First Rebuttal and shall identify clearly which argument or fact of the other party's First Rebuttal is intended to be rebutted;
11.4.3.7 The date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Advocate Arbitrators, Landlord and Tenant, and each party's applicable consultants, which date shall in any event be within forty-five (45) days following the appointment of the Neutral Arbitrator;
11.4.3.8 That no discovery shall take place in connection with the arbitration, other than to verify the factual information that is presented by Landlord or Tenant;
11.4.3.9 That the Neutral Arbitrator shall not be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant, except that the Neutral Arbitrator shall be permitted to visit the Project and the buildings containing the Comparable Transactions;
11.4.3.10 The specific persons that shall be allowed to attend the arbitration;
11.4.3.11 Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours ("Tenant's Initial Statement");
11.4.3.12 Following Tenant's Initial Statement, Landlord shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours ("Landlord's Initial Statement");
11.4.3.13 Following Landlord's Initial Statement, Tenant shall have up to two (2) arbitrators.additional hours to present additional arguments and/or to rebut the arguments of Tenant ("Tenant's Rebuttal Statement");
11.4.3.14 Following Tenant's Rebuttal Statement, Landlord shall have up to two (iii2) The three additional hours to present additional arguments and/or to rebut the arguments of Tenant;
11.4.3.15 That, not later than ten (310) arbitrators shall within fifteen (15) business days after the date of the appointment arbitration, the Neutral Arbitrator shall render a decision (the "Ruling") indicating whether Landlord's or Tenant's submitted Option Rent is closer to the Option Rent;
11.4.3.16 That following notification of the third arbitrator reach a decision as to whether the parties shall use Ruling, Landlord’s 's or Tenant’s 's submitted Market Option Rent determination, whichever is selected by the Neutral Arbitrator as being closer to the Option Rent shall become the then applicable Option Rent, and shall notify Landlord and Tenant thereof.; and
(iv) The 11.4.3.17 That the decision of the majority of the three (3) arbitrators Neutral Arbitrator shall be binding upon on Landlord and Tenant.
(v) If either Landlord or Tenant fails to appoint an arbitrator within ten (10) days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
(vi) If the two arbitrators fail to agree upon and appoint a third arbitrator, or both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this item (d).
(vii) The cost of arbitration shall be paid by Landlord and Tenant equally.
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