Determination of Market Rent. In the event Tenant timely exercises its option to extend the Lease but rejects Landlord’s Option Rent Calculation set forth in the Landlord Response Notice pursuant to Section 2.2.3, above, then Landlord and Tenant shall attempt to agree upon the Option Rent using good-faith efforts. If Landlord and Tenant fail to reach agreement upon the Option Rent applicable to the Option Term on or before the date that is ninety (90) days prior to the expiration of the initial Lease Term in the case of the first Option Term and the date that is ninety (90) days prior to the expiration of the first Option Term in the case of the second Option Term (each an “Outside Agreement Date”), then the Market Rent (and therefore, the Option Rent) shall be determined by arbitration pursuant to the TCCs of this Section 2.2.4. Each party shall make a separate best and final determination of the Option Rent, within five (5) days following the applicable Outside Agreement Date and supply a copy of such determination to the other party, and both such determinations shall be submitted to arbitration in accordance with Section 2.2.4.1 through Section 2.2.4.4, below. Notwithstanding the foregoing, either party may, but notice delivered to the other within two (2) business days after receipt of the other party’s best and final determination of the Option Rent, accept the other party’s Option Rent determination; and, in such case, the accepted determination shall be the Option Rent for the applicable Option Term and no arbitration shall be required under this Section 2.2.4. 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a MAI appraiser who shall have been active over the ten (10) year period ending on the date of such appointment in the appraising first class office properties in the vicinity of the Project. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease. Each such arbitrator shall be appointed within fifteen (15) 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). The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.” 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 date of the appointment of the last appointed 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 two Advocate Arbitrators except that (i) the Neutral Arbitrator may be a licensed real estate broker or real estate lawyer who shall have been active over the ten (10) year period ending on the date of such appointment in the leasing of first class office properties in the vicinity of the Project, (ii) neither Landlord nor Tenant (or such party’s Advocate Arbitrator) may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (iii) the Neutral Arbitrator cannot be someone who has represented Landlord or Tenant (or any affiliate of Landlord 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 (10) 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: 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 TCCs 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 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”); 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 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) hours (“Tenant’s Initial Statement”); 2.2.4.3.12 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”); 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 (“Tenant’s Rebuttal Statement”); 2.2.4.3.14 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; 2.2.4.3.15 That, not later than ten (10) 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 Market 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 the Neutral Arbitrator as being closer to the Market Rent, shall become the then applicable Option Rent; and 2.2.4.3.17 That the decision of the Neutral Arbitrator, as embodied in the Ruling, shall be binding on Landlord and Tenant.
Appears in 1 contract
Samples: Office Lease (Box Inc)
Determination of Market Rent. In the event Tenant timely and appropriately exercises its option to extend the Lease but rejects Landlord’s the Option Rent Calculation set forth in the Landlord Response Notice Landlord's Option Rent Calculation pursuant to Section 2.2.3, 2.2.4 above, then Landlord and Tenant shall attempt to agree upon the Option Rent using their reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement upon the Option Rent applicable to the Option Term on or before the date that is ninety (90) days prior to the expiration of the initial Lease Term in (the case of the first Option Term and the date that is ninety (90) days prior to the expiration of the first Option Term in the case of the second Option Term (each an “"Outside Agreement Date”"), then the Market Option Rent (and therefore, the Option Rent) shall be determined by arbitration pursuant to the TCCs terms of this Section 2.2.42.2.5. Each party shall make a separate best and final determination of the Market Rent (i.e., the determinations of one hundred percent (100%) of Market Rent (as opposed to the Option Rent determinations equal to ninety-seven and one-half percent (97.5%) of Market Rent) (the "Exchanged Market Rents"), within five (5) days following the applicable Outside Agreement Date and supply a copy of such determination to the other partyDate, and both such determinations shall be submitted to arbitration in accordance with Section 2.2.4.1 2.2.5.1 through Section 2.2.4.42.2.5.4, below. Notwithstanding the foregoing, either party may, but notice delivered to the other within two (2) business days after receipt of the other party’s best and final The determination of the Option Rent, accept the other party’s Option Rent determination; and, in such case, the accepted determination arbitrators shall be limited solely to the Option issue area of whether Landlord's or Tenant's Exchanged Market Rents determination is the closest to the actual Market Rent for as determined by the applicable Option Term and no arbitration shall be required under arbitrators, taking into account the requirements of Section 2.2 of this Section 2.2.4Lease.
2.2.4.1 2.2.5.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a MAI appraiser or real estate broker who shall have been active over the ten (10) year period ending on the date of such appointment in the appraising and/or leasing of first class office properties in the vicinity of the Project. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this LeaseBuildings. Each such arbitrator shall be appointed within fifteen (15) 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). The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators.”"
2.2.4.2 2.2.5.2 The two 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 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 two Advocate Arbitrators except that (i) neither the Neutral Landlord or Tenant or either parties' Advocate Arbitrator may be a licensed real estate broker or real estate lawyer who shall have been active over the ten (10) year period ending on the date of such appointment in the leasing of first class office properties in the vicinity of the Project, (ii) neither Landlord nor Tenant (or such party’s Advocate Arbitrator) may, directly directly, or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (iiiii) the Neutral Arbitrator cannot be someone who has represented Landlord or and/or Tenant (or any affiliate of Landlord 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 's counsel and Tenant’s 's counsel.
2.2.4.3 2.2.5.3 Within ten (10) business days following the appointment of the Neutral Arbitrator, Landlord and Tenant shall in good faith endeavor to agree upon the terms of and enter into an arbitration agreement (the “"Arbitration Agreement”") which shall set forth the following:
2.2.4.3.1 (a) Each of Landlord’s 's and Tenant’s best and final and binding determination of the Option Rent 's Exchanged Market Rents exchanged by the parties pursuant to Section 2.2.42.2.5, above;; 788287.02/WLA 375755-00007/7-26-18/mjh/ejw -9- CXXXXXX HIGHLINE 1173, 1167 & 1000 Xxxxxxx Xxxxxx Roku, Inc.
2.2.4.3.2 (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 TCCs 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 (c) Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
2.2.4.3.4 (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 's or Tenant’s 's respective determination of Option Rent Exchanged Market Rents (the “"Briefs”");
2.2.4.3.5 (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 's Brief (the “First Rebuttals”); providedRebuttals”);provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party’s 's Brief and shall identify clearly which argument or fact of the other party’s 's Brief is intended to be rebutted;
2.2.4.3.6 (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;
2.2.4.3.7 (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 '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 (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;
2.2.4.3.9 (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;
2.2.4.3.10 The specific persons that shall be allowed to attend the arbitration;
2.2.4.3.11 (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 (“"Tenant’s 's Initial Statement”");
2.2.4.3.12 (k) Following Tenant’s '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 's Initial Statement”");
2.2.4.3.13 (l) Following Landlord’s 's Initial Statement, Statements the Advocate Arbitrator representing Tenant shall have up to two one (21) additional hours hour to present additional arguments and/or to rebut the arguments of Landlord offered in Landlord's Initial Statement (“"Tenant’s 's Rebuttal Statement”");
2.2.4.3.14 (m) Following Tenant’s 's Rebuttal Statement, the Advocate Arbitrator representing Landlord shall have up to two one (21) additional hours hour to present additional arguments and/or to rebut the arguments of offered in Tenant's Initial Statement and Tenant's Rebuttal Statement;
2.2.4.3.15 (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 's or Tenant’s submitted Option Rent 's Exchanged Market Rents determination is closer to the Market Rent;
2.2.4.3.16 (o) That following notification of the Ruling, Landlord’s 's or Tenant’s submitted Option Rent 's Exchanged Market Rents determination, whichever is selected by the Neutral Arbitrator as being closer to the Market Rent, shall then be multiplied by ninety-seven and one-half percent (97.5%) to become the then applicable Option Rent; and
2.2.4.3.17 (p) That the decision of the Neutral Arbitrator, as embodied in the Ruling, Arbitrator shall be binding on Landlord and Tenant.
(q) If a date by which an event described in Section 2.2.5.3 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 2.2.5 notwithstanding such failure. 788287.02/WLA 375755-00007/7-26-18/mjh/ejw -10- CXXXXXX HIGHLINE 1173, 1167 & 1000 Xxxxxxx Xxxxxx Roku, Inc.
Appears in 1 contract
Samples: Office Lease (Roku, Inc)
Determination of Market Rent. In the event Tenant timely and appropriately exercises its option to extend the Lease but rejects Landlord’s the Option Rent Calculation set forth in the Landlord Response Notice Landlord's Option Rent Calculation 788288.01/WLA 375755-00007/8-9-18//ejw -6- CXXXXXX HIGHLINE 1000 Xxxxxxx Xxxxxx [Building 2] Roku, Inc. pursuant to Section 2.2.3, 2.2.4 above, then Landlord and Tenant shall attempt to agree upon the Option Rent using their reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement upon the Option Rent applicable to the Option Term on or before the date that is ninety (90) days prior to the expiration of the initial Lease Term in (the case of the first Option Term and the date that is ninety (90) days prior to the expiration of the first Option Term in the case of the second Option Term (each an “"Outside Agreement Date”"), then the Market Option Rent (and therefore, the Option Rent) shall be determined by arbitration pursuant to the TCCs terms of this Section 2.2.42.2.5. Each party shall make a separate best and final determination of the Market Rent (i.e., the determinations of one hundred percent (100%) of Market Rent (as opposed to the Option Rent determinations equal to ninety-seven and one-half percent (97.5%) of Market Rent) (the "Exchanged Market Rents"), within five (5) days following the applicable Outside Agreement Date and supply a copy of such determination to the other partyDate, and both such determinations shall be submitted to arbitration in accordance with Section 2.2.4.1 2.2.5.1 through Section 2.2.4.42.2.5.4, below. Notwithstanding the foregoing, either party may, but notice delivered to the other within two (2) business days after receipt of the other party’s best and final The determination of the Option Rent, accept the other party’s Option Rent determination; and, in such case, the accepted determination arbitrators shall be limited solely to the Option issue area of whether Landlord's or Tenant's Exchanged Market Rents determination is the closest to the actual Market Rent for as determined by the applicable Option Term and no arbitration shall be required under arbitrators, taking into account the requirements of Section 2.2 of this Section 2.2.4Lease.
2.2.4.1 2.2.5.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a MAI appraiser or real estate broker who shall have been active over the ten (10) year period ending on the date of such appointment in the appraising and/or leasing of first class office properties in the vicinity of the Project. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this LeaseBuilding. Each such arbitrator shall be appointed within fifteen (15) 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). The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators.”"
2.2.4.2 2.2.5.2 The two 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 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 two Advocate Arbitrators except that (i) neither the Neutral Landlord or Tenant or either parties' Advocate Arbitrator may be a licensed real estate broker or real estate lawyer who shall have been active over the ten (10) year period ending on the date of such appointment in the leasing of first class office properties in the vicinity of the Project, (ii) neither Landlord nor Tenant (or such party’s Advocate Arbitrator) may, directly directly, or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (iiiii) the Neutral Arbitrator cannot be someone who has represented Landlord or and/or Tenant (or any affiliate of Landlord 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 's counsel and Tenant’s 's counsel.
2.2.4.3 2.2.5.3 Within ten (10) business days following the appointment of the Neutral Arbitrator, Landlord and Tenant shall in good faith endeavor to agree upon the terms of and enter into an arbitration agreement (the “"Arbitration Agreement”") which shall set forth the following:
2.2.4.3.1 (a) Each of Landlord’s 's and Tenant’s best and final and binding determination of the Option Rent 's Exchanged Market Rents exchanged by the parties pursuant to Section 2.2.42.2.5, above;
2.2.4.3.2 (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 TCCs 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 (c) Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
2.2.4.3.4 (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 's or Tenant’s 's respective determination of Option Rent Exchanged Market Rents (the “"Briefs”");
2.2.4.3.5 (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 's Brief (the “First Rebuttals”); providedRebuttals”);provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party’s 's Brief and shall identify clearly which argument or fact of the other party’s 's Brief is intended to be rebutted;
2.2.4.3.6 (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;
2.2.4.3.7 (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 's applicable consultants, which date shall in any event be within forty-five (45) days following the appointment of the Neutral Arbitrator;; 788288.01/WLA 375755-00007/8-9-18//ejw -7- CXXXXXX HIGHLINE 1000 Xxxxxxx Xxxxxx [Building 2] Roku, Inc.
2.2.4.3.8 (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;
2.2.4.3.9 (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;
2.2.4.3.10 The specific persons that shall be allowed to attend the arbitration;
2.2.4.3.11 (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 (“"Tenant’s 's Initial Statement”");
2.2.4.3.12 (k) Following Tenant’s '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 's Initial Statement”");
2.2.4.3.13 (l) Following Landlord’s 's Initial Statement, Statements the Advocate Arbitrator representing Tenant shall have up to two one (21) additional hours hour to present additional arguments and/or to rebut the arguments of Landlord offered in Landlord's Initial Statement (“"Tenant’s 's Rebuttal Statement”");
2.2.4.3.14 (m) Following Tenant’s 's Rebuttal Statement, the Advocate Arbitrator representing Landlord shall have up to two one (21) additional hours hour to present additional arguments and/or to rebut the arguments of offered in Tenant's Initial Statement and Tenant's Rebuttal Statement;
2.2.4.3.15 (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 's or Tenant’s submitted Option Rent 's Exchanged Market Rents determination is closer to the Market Rent;
2.2.4.3.16 (o) That following notification of the Ruling, Landlord’s 's or Tenant’s submitted Option Rent 's Exchanged Market Rents determination, whichever is selected by the Neutral Arbitrator as being closer to the Market Rent, shall then be multiplied by ninety-seven and one-half percent (97.5%) to become the then applicable Option Rent; and
2.2.4.3.17 (p) That the decision of the Neutral Arbitrator, as embodied in the Ruling, Arbitrator shall be binding on Landlord and Tenant.
(q) If a date by which an event described in Section 2.2.5.3 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 2.2.5 notwithstanding such failure.
Appears in 1 contract
Samples: Office Lease (Roku, Inc)
Determination of Market Rent. In the event Tenant timely and appropriately exercises its option to extend the Lease but rejects Landlord’s the Option Rent Calculation set forth in the Landlord Response Notice Landlord's Option Rent Calculation pursuant to Section 2.2.3, above, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. The "Base Year," as that term is defined in Section 4.2.1, below, for the Option Term shall mean calendar year 2030. If Landlord and Tenant fail to reach agreement upon the Option Rent applicable to the Option Term on or before the date that is ninety one hundred twenty (90120) days prior to the expiration of the initial Lease Term in (the case of the first Option Term and the date that is ninety (90) days prior to the expiration of the first Option Term in the case of the second Option Term (each an “"Outside Agreement Date”"), then the Market Option Rent (and therefore, the Option Rent) shall be determined by arbitration pursuant to the TCCs terms of this Section 2.2.4. Each party shall make a separate best and final determination of the Option Market Rent, within five ten (510) business days following the applicable Outside Agreement Date and supply a copy Date. If the higher of such determination to estimates is not more than one hundred five percent (105%) of the other partylower, and both then the Market Rent shall be the average of the two. If the higher of such estimates is more than one hundred five percent (105%) of the lower, then such determinations shall be submitted to arbitration in accordance with Section 2.2.4.1 through Section 2.2.4.4, below. Notwithstanding the foregoing, either party may, but notice delivered to the other within two (2) business days after receipt of the other party’s best and final determination of the Option Rent, accept the other party’s Option Rent determination; and, in such case, the accepted determination shall be the Option Rent for the applicable Option Term and no arbitration shall be required under this Section 2.2.4.
2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a MAI appraiser appraiser, real estate broker, or real estate lawyer who shall have been active over the ten five (105) year period ending on the date of such appointment in the appraising and/or leasing of first class office properties in the vicinity of the ProjectBuilding. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s 's or Tenant’s 's submitted Option Rent is the closest to the actual Option Market Rent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease. Each such arbitrator shall be appointed within fifteen (15) 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). The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators.”"
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 date of the appointment of the last appointed 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 two Advocate Arbitrators except that (i) neither the Neutral Landlord or Tenant or either parties' Advocate Arbitrator may be a licensed real estate broker or real estate lawyer who shall have been active over the ten (10) year period ending on the date of such appointment in the leasing of first class office properties in the vicinity of the Project, (ii) neither Landlord nor Tenant (or such party’s Advocate Arbitrator) may, directly directly, or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (iiiii) the Neutral Arbitrator cannot be someone who has represented Landlord or and/or Tenant (or any affiliate of Landlord 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 's counsel and Tenant’s 's counsel.
2.2.4.3 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:
2.2.4.3.1 Each of Landlord’s 's and Tenant’s '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 TCCs 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 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 's or Tenant’s '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 's Brief (the “"First Rebuttals”"); provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party’s 's Brief and shall identify clearly which argument or fact of the other party’s '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 '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 '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 's First Rebuttal and shall identify clearly which argument or fact of the other party’s '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 '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) hours (“"Tenant’s 's Initial Statement”");
2.2.4.3.12 Following Tenant’s '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 's Initial Statement”");
2.2.4.3.13 Following Landlord’s '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 's Rebuttal Statement”");
2.2.4.3.14 Following Tenant’s 's Rebuttal Statement, Landlord shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Tenant;
2.2.4.3.15 That, not later than ten (10) days after the date of the arbitration, the Neutral Arbitrator shall render a decision (the “"Ruling”") indicating whether Landlord’s 's or Tenant’s 's submitted Option Rent is closer to the Market Rent;
2.2.4.3.16 That following notification of the Ruling, Landlord’s 's or Tenant’s 's submitted Option Rent determination, whichever is selected by the Neutral Arbitrator as being closer to the Market Rent, Option Rent shall become the then applicable Option Rent; and
2.2.4.3.17 That the decision of the Neutral Arbitrator, as embodied in the Ruling, Arbitrator shall be binding on Landlord and Tenant.
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 date shall be deemed to be the next business day.
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 required to pay the Rent in effect at the end of the initial Lease Term. Upon the determination of the Option Rent for the Option Term pursuant to this Section 2.2.4, the payments made by Tenant shall be reconciled with the actual amounts due, and the appropriate party shall make any corresponding payment or credit to the other party.
Appears in 1 contract
Samples: Office Lease (Nektar Therapeutics)
Determination of Market Rent. In the event Tenant timely and appropriately exercises its option to extend the Lease but rejects Landlord’s the Option Rent Calculation set forth in the Landlord Response Option Rent Notice pursuant to Section 2.2.3, above, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement upon the Option Rent applicable to the Option Term on or before the date that is ninety (90) days prior to the expiration of the initial Lease Term in (the case of the first Option Term and the date that is ninety (90) days prior to the expiration of the first Option Term in the case of the second Option Term (each an “"Outside Agreement Date”"), then the Market Option Rent (and therefore, the Option Rent) shall be determined by arbitration pursuant to the TCCs terms of this Section 2.2.4. Each party shall make a separate best and final determination of the Option Rent, within five (5) days following the applicable Outside Agreement Date and supply a copy of such determination to the other partyDate, and both such determinations shall be submitted to arbitration in accordance with Section Sections 2.2.4.1 through Section 2.2.4.4, below. Notwithstanding the foregoing692500.09/WLA371593-00023/6-13-12/ao/ao -00- XXX XXXXXX[Xxxxxx Realty, either party mayL.P.][Concur Technologies, but notice delivered to the other within two (2) business days after receipt of the other party’s best and final determination of the Option Rent, accept the other party’s Option Rent determination; and, in such case, the accepted determination shall be the Option Rent for the applicable Option Term and no arbitration shall be required under this Section 2.2.4.Inc.]
2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a MAI appraiser or real estate broker who shall have been active over the ten five (105) year period ending on the date of such appointment in the appraising and/or leasing of first class office properties in the vicinity of the ProjectBuilding. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date, and if only one party appoints an arbitrator during such time, that arbitrator shall serve as the Neutral Arbitrator below. 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). The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
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 date of the appointment of the last appointed 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 two Advocate Arbitrators except that (i) neither the Neutral Landlord or Tenant or either parties' Advocate Arbitrator may be a licensed real estate broker or real estate lawyer who shall have been active over the ten (10) year period ending on the date of such appointment in the leasing of first class office properties in the vicinity of the Project, (ii) neither Landlord nor Tenant (or such party’s Advocate Arbitrator) may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (iiiii) the Neutral Arbitrator cannot be someone who has represented Landlord or and/or Tenant (or any affiliate of Landlord 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 (10) 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:
2.2.4.3.1 Each of Landlord’s 's and Tenant’s '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 TCCs 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 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 TenantXxxxxx, 000000.00/XXX000000-00000/0-00-00/xx/xx -00- XXX XXXXXX[Xxxxxx Realty, L.P.][Concur Technologies, Inc.] as the case may be, in support of Landlord’s 's or Tenant’s '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 's Brief (the “"First Rebuttals”"); provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party’s 's Brief and shall identify clearly which argument or fact of the other party’s '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 '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 '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 's First Rebuttal and shall identify clearly which argument or fact of the other party’s '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 '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) hours (“"Tenant’s 's Initial Statement”");
2.2.4.3.12 Following Tenant’s '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 's Initial Statement”");
2.2.4.3.13 Following Landlord’s '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 's Rebuttal Statement”");
; 692500.09/WLA371593-00023/6-13-12/ao/ao -00- XXX XXXXXX[Xxxxxx Realty, L.P.][Concur Technologies, Inc.] 2.2.4.3.14 Following Tenant’s 's Rebuttal Statement, Landlord shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of TenantTenant ("Landlord's Rebuttal Statement");
2.2.4.3.15 That, not later than ten (10) 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 Market 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 the Neutral Arbitrator as being closer to the Market Rent, shall become the then applicable Option Rent; and
2.2.4.3.17 That the decision of the Neutral Arbitrator, as embodied in the Ruling, shall be binding on Landlord and Tenant.
Appears in 1 contract
