Fair Market Rental Value. The Base Rent for the sixth (6th) lease year as described in Paragraph 18 of the Summary of Basic Lease Terms (calendar months seventy-nine (79) through ninety (90) or the Lease Term) shall be the greater of (i) the Fair Market Rental Value of the Leased Premises, and (ii) a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, which Base Rent shall increase by three percent (3%) each lease year thereafter during the Lease Term. Not less than six (6) months prior to the Termination Notice Deadline (which Termination Notice Deadline will be extended for one day for each day that Landlord is late in providing Landlord’s Good Faith Determination), Landlord shall provide Tenant with Landlord’s good faith determination of the Fair Market Rental Value for the sixth (6th) lease year (“Landlord’s Good Faith Determination”). If Landlord determines that the Fair Market Rental Value for the sixth (6th) lease year is less than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, the Base Rent for the sixth (6th) lease year shall be an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year. If Landlord determines that the Fair Market Rental Value for the sixth (6th) Lease Year is greater than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, within thirty (30) days after Tenant’s receipt of Landlord’s Good Faith Determination, Tenant shall notify Landlord whether Tenant accepts or rejects Landlord’s determination. If Tenant fails to notify Landlord within such thirty (30) day period, Tenant shall be deemed to have rejected such determination. If Tenant delivers to Landlord timely notice of its objection to such determination or fails to deliver its approval or objection to Landlord’s Good Faith Determination, Landlord and Tenant shall use good faith efforts to agree upon the Fair Market Rental Value within fifteen (15) business days following Landlord’s receipt of Tenant’s notice of objection (the “Outside Agreement Date”). If Landlord and Tenant are unable to so agree by the Outside Agreement Date, the parties shall appoint brokers and the brokers shall determine the Fair Market Rental Value in accordance with the following procedure: (i) Within fifteen (15) business days following the Outside Agreement Date, Landlord and Tenant shall each appoint a broker who shall be a licensed real estate broker having significant experience in leasing similar office space in the Salt Lake City metropolitan area for at least the immediately preceding ten (10) years prior to such appointment. The two brokers so appointed shall jointly attempt to agree upon the Fair Market Rental Value. If the brokers are unable to agree within thirty (30) days after appointment of the last appointed broker, then within ten (10) business days after expiration of such thirty (30) day period, the brokers shall meet and concurrently deliver to each other their respective written determinations of the Fair Market Rental Value for the sixth (6th) lease year supported by the reasons therefor, and promptly deliver copies of their determinations to Landlord and Tenant. If the higher of such determinations is not more than one hundred five percent (105%) of the lower, then the Fair Market Rental Value shall be the average of the two determinations. Otherwise, the Fair Market Rental Value shall be determined by a third broker as set forth below. (ii) The two brokers shall appoint a third broker, having the qualifications stated above, and shall notify the parties of the identity of such third broker. If the two brokers are unable to agree upon a third broker within twenty (20) days, either party may, upon not less than five (5) days’ written notice to the other party, apply to the American Arbitration Association for the appointment of a third broker meeting the qualifications stated above. (iii) Within thirty (30) days after submission of the matter to the third broker, the third broker shall select the determination by either Landlord’s broker or Tenant’s broker as the Fair Market Rental Value and shall notify Landlord and Tenant thereof. The third broker, if he or she so elects, may conduct a hearing, at which Landlord and Tenant and their respective brokers may make supplemental oral and/or written presentations, with an opportunity for rebuttal by the other party and its representatives and for questioning by the third broker. No ex parte communications shall be permitted between the third broker and Landlord or Tenant until after the third broker has made his or her determination. The third broker shall be limited solely to the issue of whether the determination by Landlord’s broker or Tenant’s broker is closest to the actual Fair Market Rental Value and shall have no right to propose a middle ground or to modify either of the two determinations or the provisions of this Lease. The decision of the third broker shall be final and binding upon Landlord and Tenant, and may be enforced in accordance with the provisions of Utah law. (iv) If either Landlord or Tenant fails to appoint an broker within the time period specified hereinabove, the broker appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such broker’s decision shall be binding upon Landlord and Tenant. In the event of the failure, refusal or inability of an broker to act, a successor shall be appointed in the same manner as the original broker. (v) Each party shall pay the costs and fees of the broker appointed by such party. The costs and fees of the third broker, if applicable, shall be paid one-half by Landlord and one-half by Tenant.

Appears in 2 contracts

Samples: Lease Agreement (TGPX Holdings I LLC), Lease Agreement (Traeger, Inc.)

Fair Market Rental Value. ~~The~~ On commencement of the Extension Period, the Lease shall be adjusted to reflect a new Base Rent for the ~~sixth (6th) lease year as described in Paragraph 18~~ Premises equal to 100% of the ~~Summary~~ average base rents per rentable square foot charged for comparable non-renewal, non-equity tenants of ~~Basic Lease Terms~~ comparable size, considering the age of the building, quality, floor height, location in the South Platte River buildings in the Denver market, and other reasonable factors relevant to a fair market rent determination, for a comparable term under leases entered into within six months prior to the date Tenant exercises the applicable option, and further taking into account the relative creditworthiness of the Tenant and the presence or absence of brokerage commissions, tenant improvement allowance(s), landlord initial improvement work at landlord’s expense, base years, construction time, and all other lease concessions (~~calendar months seventy-nine (79) through ninety (90) or~~ the ~~Lease Term) shall be the greater of (i) the~~ “Fair Market Rental ~~Value of the Leased Premises~~Rate”), ~~and (ii) a three percent (3%) increase over~~ as reasonably calculated by Landlord in good faith; provided, however, that in no event shall the Base Rent ~~owing~~ for any Extension Period be less than the Base Rent payable immediately prior to the ~~sixth (6th) lease year, which Base Rent~~ commencement of the Extension Period. Landlord shall increase by three percent (3%) each lease year thereafter during the Lease Term. Not less than six (6) months prior to the Termination Notice Deadline (which Termination Notice Deadline will be extended for advise Tenant of such rental adjustment within one ~~day for each day that Landlord is late in providing~~ month after Landlord’s ~~Good Faith Determination),~~ receipt of Tenant’s Option Notice. Tenant shall have twenty (20) days following Tenant’s receipt of notice of the rental adjustment (the “Rent Adjustment Notice”) within which to accept such terms by executing any appropriate reasonable documentation submitted by Landlord ~~shall provide~~ to Tenant. If Tenant disagrees with Landlord’s ~~good faith determination~~ calculation of the Fair Market Rental ~~Value for the sixth (6th) lease year (“Landlord’s Good Faith Determination”). If~~ Rate and if Landlord ~~determines that the~~ and Tenant have not reached a written agreement on Fair Market Rental ~~Value~~ Rate for the sixth (6th) lease year is less than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, the Base Rent for the sixth (6th) lease year shall be an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year. If Landlord determines that the Fair Market Rental Value for the sixth (6th) Lease Year is greater than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, applicable Extension Period within thirty (30) days after ~~Tenant’s receipt~~ the date Landlord gives Tenant the Rent Adjustment Notice (the “Adjustment Notice Date”), each party shall appoint a qualified real estate broker with at least seven years of ~~Landlord’s Good Faith Determination, Tenant~~ experience in office leasing in the South Platte River Denver marketplace (a “Qualified Broker”) for the purpose of determining Fair Market Rental Rate for the applicable Extension Period and shall notify Landlord whether Tenant accepts or rejects Landlord’s determination. If Tenant fails to notify Landlord within such thirty (30) day period, Tenant shall be deemed to have rejected such determination. If Tenant delivers to Landlord timely give written notice of ~~its objection~~ such appointment to ~~such determination or fails to deliver its approval or objection to Landlord’s Good Faith Determination, Landlord and Tenant shall use good faith efforts to agree upon~~ the other party within forty (40) days after the Adjustment Notice Date. The written agreement of the Qualified Brokers appointed as provided above regarding the Fair Market Rental ~~Value within fifteen (15) business days following Landlord’s receipt~~ Rate shall be a conclusive determination of Tenant’s notice of objection (the “Outside Agreement Date”). If Landlord and Tenant are unable to so agree by the Outside Agreement Date, the parties shall appoint brokers and the brokers shall determine the Fair Market Rental ~~Value in accordance with~~ Rate for purposes of determining the ~~following procedure:~~ Base Rent payable by Tenant during the applicable Extension Period. If such Qualified Brokers have not reached a written agreement on the Fair Market Rental Rate within sixty (i60) ~~Within fifteen (15) business~~ days ~~following~~ after the ~~Outside Agreement~~ Adjustment Notice Date, the two Qualified Brokers shall select a third Qualified Broker and give written notice of such appointment to Landlord and Tenant within seventy (70) days after the Adjustment Notice Date. The three Qualified Brokers so appointed shall fix a date for completion of their determination of the Fair Market Rental Rate, such date to be not later than ninety (90) days after the Adjustment Notice Date. On or before such date, the three Qualified Brokers shall meet and shall submit their determinations in writing to Landlord and Tenant. The Fair Market Rental Rate used to determine the new Base Rent for the Extension Period for the Premises, as applicable, shall be an amount equal to the numerical average of the two figures closest to each other in absolute value. (For purposes of example only, if the determinations were $4.50/sf, $5.00/sf and $5.55/sf, the governing Fair Market Rental Rate would be $4.75/sf, the average of the two lower figures, since the $.50 difference between them is less than the $.55 difference between the higher two figures.) If for any reason any of the Qualified Brokers fails timely to submit its determination of the Fair Market Rental Rate to Landlord and Tenant, then the numerical average of such determinations as were timely submitted shall be the governing Fair Market Rental Rate. Landlord and Tenant shall each ~~appoint a broker who~~ be responsible for payment of the fees of the Qualified Broker it selects; the fee for the third Qualified Broker, if any, shall be a licensed real estate broker having significant experience in leasing similar office space in the Salt Lake City metropolitan area for at least the immediately preceding ten (10) years prior to such appointment. The two brokers so appointed shall jointly attempt to agree upon the Fair Market Rental Value. If the brokers are unable to agree within thirty (30) days after appointment of the last appointed broker, then within ten (10) business days after expiration of such thirty (30) day period, the brokers shall meet and concurrently deliver to each other their respective written determinations of the Fair Market Rental Value for the sixth (6th) lease year supported by the reasons therefor, and promptly deliver copies of their determinations to Landlord and Tenant. If the higher of such determinations is not more than one hundred five percent (105%) of the lower, then the Fair Market Rental Value shall be the average of the two determinations. Otherwise, the Fair Market Rental Value shall be determined by a third broker as set forth below. (ii) The two brokers shall appoint a third broker, having the qualifications stated above, and shall notify the parties of the identity of such third broker. If the two brokers are unable to agree upon a third broker within twenty (20) days, either party may, upon not less than five (5) days’ written notice to the other party, apply to the American Arbitration Association for the appointment of a third broker meeting the qualifications stated above. (iii) Within thirty (30) days after submission of the matter to the third broker, the third broker shall select the determination by either Landlord’s broker or Tenant’s broker as the Fair Market Rental Value and shall notify Landlord and Tenant thereof. The third broker, if he or she so elects, may conduct a hearing, at which Landlord and Tenant and their respective brokers may make supplemental oral and/or written presentations, with an opportunity for rebuttal by the other party and its representatives and for questioning by the third broker. No ex parte communications shall be permitted divided evenly between the third broker and Landlord or Tenant until after the third broker has made his or her determination. The third broker shall be limited solely to the issue of whether the determination by Landlord’s broker or Tenant’s broker is closest to the actual Fair Market Rental Value and shall have no right to propose a middle ground or to modify either of the two determinations or the provisions of this Lease. The decision of the third broker shall be final and binding upon Landlord and Tenant, ~~and may be enforced~~ such that each party shall pay one-half thereof. In no event shall the terms offered by Landlord under this Section 3.4 bind Landlord to offer such terms to Tenant or to any other person or entity at any time except as explicitly set forth herein, nor shall such terms prevent Landlord from leasing the Premises to any person or entity on different terms if Tenant does not timely accept the terms determined in accordance with ~~the provisions of Utah law~~this Section 3.4. (iv) If either Landlord or Tenant fails to appoint an broker within the time period specified hereinabove, the broker appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such broker’s decision shall be binding upon Landlord and Tenant. In the event of the failure, refusal or inability of an broker to act, a successor shall be appointed in the same manner as the original broker. (v) Each party shall pay the costs and fees of the broker appointed by such party. The costs and fees of the third broker, if applicable, shall be paid one-half by Landlord and one-half by Tenant.

Appears in 1 contract

Samples: Office Space Lease (New Age Beverages Corp)

Fair Market Rental Value. ~~The Base Rent for~~ Section 22.1. For purposes of determining the ~~sixth~~ fair market rental value during any renewal term (~~6th~~"Renewal Fair Market Rental Value"), the following procedure shall apply: (a) ~~lease year as described in Paragraph 18~~ If Tenant has timely delivered a renewal notice, Landlord shall within 15 days deliver to Tenant a written notice of Landlord's determination of what the ~~Summary of Basic Lease Terms (calendar months seventy-nine (79) through ninety (90) or the Lease Term) shall be the greater of (i) the~~ Renewal Fair Market Rental Value of would be during such renewal term (the ~~Leased Premises, and~~ "Renewal Rent Notice"). (iib) a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, which Base Rent shall increase by three percent (3%) each lease year thereafter during the Lease Term. Not less than six (6) months prior to the Termination Notice Deadline (which Termination Notice Deadline will be extended for one day for each day that Landlord is late in providing Landlord’s Good Faith Determination), Landlord shall provide Tenant with Landlord’s good faith determination of the Fair Market Rental Value for the sixth (6th) lease year (“Landlord’s Good Faith Determination”). If Landlord determines that the Fair Market Rental Value for the sixth (6th) lease year is less than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, the Base Rent for the sixth (6th) lease year shall be an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year. If Landlord determines that the Fair Market Rental Value for the sixth (6th) Lease Year is greater than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, within Within thirty (30) days after Tenant’s 's receipt of ~~Landlord’s Good Faith Determination~~the Renewal Rent Notice, Tenant shall ~~notify~~ give Landlord ~~whether~~ a notice ("Tenant's Renewal Response Notice") electing either (i) to accept the Renewal Fair Market Rental Value set forth in the Renewal Rent Notice, in which case the Renewal Fair Market Rental Value shall be as set forth in the Renewal Rent Notice, or (ii) not to accept Landlord's determination of the Renewal Fair Market Rental Value set forth in the Renewal Rent Notice in which case Tenant's Renewal Response Notice shall include Tenant's determination of what the Renewal Fair Market Rental Value would be during such renewal term, whereupon Landlord and Tenant ~~accepts~~ shall endeavor to agree upon the Renewal Fair Market Rental Value on or ~~rejects~~ before the date that is thirty (30) days after Landlord~~’s determination~~'s receipt of Tenant's Renewal Response Notice. If Landlord and Tenant are unable to agree upon the Renewal Fair Market Rental Value within such 30-day period, then the Renewal Fair Market Rental Value shall be determined in accordance with Section 22.2. If Tenant fails to ~~notify~~ deliver ------------ Tenant's Renewal Response Notice within the 30-day period following its receipt of Landlord's Renewal Rent Notice, Tenant shall be conclusively deemed to have accepted Landlord's determination of the Renewal Fair Market Rental Value. Section 22.2. If Landlord and Tenant shall fail to agree upon the Renewal Fair Market Rental Value within 30 days of the date of Landlord's receipt of Tenant's Renewal Response Notice, then, within ten (10) Business days thereafter, Landlord and Tenant each shall give notice to the other setting forth the name and address of an independent real estate appraiser or consultant having at least 10 years' experience in the business of appraising or determining the value of hotel and casino properties in Nevada and having the professional qualification of MAI, SREA or CRE. If either party shall fail to give notice of such designation within such ten (10) Business day period, then the appraiser chosen shall make the determination alone. If two appraisers have been designated, such two appraisers may consult with each other and shall, not later than the 60th day after Landlord's receipt of Tenant's Renewal Response Notice choose either Landlord's or Tenant's determination of the Renewal Fair Market Rental Value by simultaneously giving written notice thereof to each of Landlord and Tenant, in which case the determination so chosen shall be final and binding upon Landlord and Tenant. If such two appraisers shall fail to concur within such thirty (30) day period, ~~Tenant shall be deemed to have rejected~~ then such ~~determination. If Tenant delivers to Landlord timely notice of its objection to such determination or fails to deliver its approval or objection to Landlord’s Good Faith Determination~~two appraisers shall, ~~Landlord and Tenant shall use good faith efforts to agree upon~~ within the Fair Market Rental Value within fifteen (15) business days following Landlord’s receipt of Tenant’s notice of objection (the “Outside Agreement Date”). If Landlord and Tenant are unable to so agree by the Outside Agreement Date, the parties shall appoint brokers and the brokers shall determine the Fair Market Rental Value in accordance with the following procedure: (i) Within fifteen (15) business days following the Outside Agreement Date, Landlord and Tenant shall each appoint a broker who shall be a licensed real estate broker having significant experience in leasing similar office space in the Salt Lake City metropolitan area for at least the immediately preceding next ten (10) ~~years prior to such appointment~~days, designate a third appraiser meeting the above requirements. The ~~two brokers so appointed~~ third appraiser shall ~~jointly attempt to agree upon the Fair Market Rental Value. If the brokers are unable to agree~~ within thirty (30) days after ~~appointment of the last appointed broker~~its designation, ~~then within ten~~ choose either Landlord's or Tenant's determination (10and no other) business days after expiration of such thirty (30) day period, the brokers shall meet and concurrently deliver to each other their respective written determinations of the Fair Market Rental Value for the sixth (6th) lease year supported by ~~the reasons therefor, and promptly deliver copies of their determinations~~ simultaneously delivering to Landlord and ~~Tenant. If the higher~~ Tenant signed and acknowledged original counterparts of such determinations is not more than one hundred five percent (105%) of the lower, then the Fair Market Rental Value shall be the average of the two determinations. Otherwise, the Fair Market Rental Value shall be determined by a third broker as set forth below. (ii) The two brokers shall appoint a third broker, having the qualifications stated above, and shall notify the parties of the identity of such third broker. If the two brokers are unable to agree upon a third broker within twenty (20) days, either party may, upon not less than five (5) days’ written notice to the other party, apply to the American Arbitration Association for the appointment of a third broker meeting the qualifications stated above. (iii) Within thirty (30) days after submission of the matter to the third broker, the third broker shall select the determination by either Landlord’s broker or Tenant’s broker as the Fair Market Rental Value and shall notify Landlord and Tenant thereof. The third broker, if he or she so elects, may conduct a hearing, at which Landlord and Tenant and their respective brokers may make supplemental oral and/or written presentations, with an opportunity for rebuttal by the other party and its representatives and for questioning by the third broker. No ex parte communications shall be permitted between the third broker and Landlord or Tenant until after the third broker has made his or her ~~determination~~determination within seven (7) days thereof. Section 22.3. The ~~third broker~~ costs and expenses of each party's appraiser shall be limited solely to the issue of whether the determination by Landlord’s broker or Tenant’s broker is closest to the actual Fair Market Rental Value and shall have no right to propose a middle ground or to modify either of the two determinations or the provisions of this Lease. The decision of the third broker shall be final and binding upon Landlord and Tenant, and may be enforced in accordance with the provisions of Utah law. (iv) If either Landlord or Tenant fails to appoint an broker within the time period specified hereinabove, the broker appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such broker’s decision shall be binding upon Landlord and Tenant. In the event of the failure, refusal or inability of an broker to act, a successor shall be appointed in the same manner as the original broker. (v) Each party shall pay the costs and fees of the broker appointed paid by such party. The costs and ~~fees~~ expenses of the third ~~broker, if applicable,~~ appraiser shall be ~~paid one-half~~ shared equally by Landlord and ~~one-half by~~ Tenant. Section 22.4. If the Renewal Fair Market Rental Value shall not have been determined prior to the commencement of each renewal term, then until the Renewal Fair Market Rental Value shall have been finally determined in respect of such renewal term, such renewal term rent shall be equal to the Fixed Rent payable by Tenant for the Premises during the Lease year immediately preceding the commencement of such renewal term. Promptly after such final determination, an appropriate retroactive adjustment shall be made reconciling the amount of Fixed Rent determined to have been payable by Tenant from and after the commencement of such renewal term and the amount Tenant actually paid Landlord as Fixed Rent prior to such final determination, and the party owing the other party pursuant to such reconciliation shall promptly make payment therefor with interest thereon at the then current base rate publicly announced by Citibank, N.A., or its successor, in New York, New York from the date Tenant actually paid such Fixed Rent until the date such reconciliation payment is made. Section 22.5. After a determination of the Renewal Fair Market Rental Value for each renewal term has been made, the parties shall execute and deliver to each other an instrument setting forth the amount of Fixed Rent for such renewal term, but the failure to do so shall not affect Tenant's obligation to pay such Fixed Rent. Section 22.6. In determining Renewal Fair Market Rental Value, Landlord, Tenant and the appraisers, if an appraisal takes place pursuant to Section 22.2, shall assume that (a) no rent concessions, rent abatements or free ------------ rent periods will be given to Tenant, (b) no Landlord contribution shall be made for Tenant Alterations and (c) Landlord will not be obligated to pay any brokerage commission, leasing commission or other similar fee by reason of Tenant's renewal of the Lease.

Appears in 1 contract

Samples: Lease Agreement (Santa Fe Gaming Corp)

Fair Market Rental Value. ~~The~~ For purposes of this Lease, the term “Fair Market Rental Value” shall be based upon the highest and best use of the Premises and may include increases in Monthly Base Rent ~~for~~ over the ~~sixth (6th) lease year as described in Paragraph 18 of the Summary of Basic Lease Terms (calendar months seventy-nine (79) through ninety (90) or the Lease Term) shall be the greater of (i) the~~ Option Period. Fair Market Rental Value shall be determined as follows: At least one hundred and twenty (120) days prior to commencement of the Leased Premises, and (ii) a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, which Base Rent shall increase by three percent (3%) each lease year thereafter during the Lease Term. Not less than six (6) months prior to the Termination Notice Deadline (which Termination Notice Deadline will be extended for one day for each day that Landlord is late in providing Landlord’s Good Faith Determination)Option Period, Landlord shall ~~provide~~ notify Tenant ~~with Landlord’s good faith~~ of its determination of the Fair Market Rental ~~Value for the sixth (6th) lease year (“Landlord’s Good Faith Determination”)~~value. If Landlord determines that the Fair Market Rental Value for the sixth (6th) lease year is less than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, the Base Rent for the sixth (6th) lease year Tenant shall be an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year. If Landlord determines that the Fair Market Rental Value for the sixth (6th) Lease Year is greater than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, within have thirty (30) days ~~after Tenant’s receipt~~ from the date of ~~Landlord’s Good Faith Determination, Tenant shall~~ such notice to notify Landlord whether ~~Tenant accepts or rejects Landlord’s~~ it disagrees with such determination. If Tenant fails to so timely notify Landlord within such thirty (30) day period, Tenant shall be deemed to have rejected such determination. If Tenant delivers to Landlord timely notice of its objection to such determination or fails to deliver its approval or objection to Landlord’s Good Faith Determination, Landlord and Tenant shall use good faith efforts to agree upon the Fair Market Rental Value within fifteen (15) business days following Landlord’s receipt of Tenant’s notice of objection (the “Outside Agreement Date”). If Landlord and Tenant are unable to so agree by the Outside Agreement Date, the parties shall appoint brokers and the brokers shall determine the Fair Market Rental Value in accordance with the following procedure: (i) Within fifteen (15) business days following the Outside Agreement Date, Landlord and Tenant shall each appoint a broker who shall be a licensed real estate broker having significant experience in leasing similar office space in the Salt Lake City metropolitan area for at least the immediately preceding ten (10) years prior to such appointment. The two brokers so appointed shall jointly attempt to agree upon the Fair Market Rental Value. If the brokers are unable to agree within thirty (30) days after appointment of the last appointed broker, then within ten (10) business days after expiration of such thirty (30) day period, the brokers shall meet and concurrently deliver to each other their respective written determinations of the Fair Market Rental Value for the sixth (6th) lease year supported by the reasons therefor, and promptly deliver copies of their determinations to Landlord and Tenant. If the higher of such determinations is not more than one hundred five percent (105%) of the lower, then the Fair Market Rental Value shall be the average of the two determinations. Otherwise, the Fair Market Rental Value shall be ~~determined by a third broker~~ as ~~set forth below.~~ established in Landlord’s notice. If Tenant gives Landlord timely notice of its disagreement, within fifteen (ii15) ~~The two brokers shall appoint a third broker, having the qualifications stated above, and shall notify the parties~~ days of the ~~identity~~ date of such ~~third broker~~notice, Landlord and Tenant shall negotiate in good faith to resolve the Fair Market Rental for an additional fifteen (15) day period. If the ~~two brokers are unable~~ parties have not resolved Fair Market Rental within such time, promptly thereafter each shall specify in writing to ~~agree upon~~ each other the name and address of a ~~third~~ person to act as the appraiser or broker ~~within twenty (20) days, either party may, upon not less than~~ on its behalf. Each such person shall be an MAI certified commercial real estate broker or appraiser with at least five (5) ~~days’ written notice to~~ years of experience with the ~~other party, apply to the American Arbitration Association~~ prevailing market rents for the ~~appointment~~ area in which the Premises are located. If either party fails to timely appoint an appraiser or broker, the determination of ~~a third~~ the timely appointed appraiser or broker ~~meeting the qualifications stated above. (iii) Within~~ shall be final and binding. The two appraiser/brokers shall have thirty (30) days ~~after submission~~ from the day of their respective appointments (the “Determination Period”) to make their respective determinations and agree on the fair market rental rate. If the two appraiser/brokers selected by the Landlord and Tenant cannot reach agreement on the fair market rental rate, such appraisers shall within fifteen (15) days jointly appoint an impartial third appraiser/broker with qualifications similar to those of the ~~matter~~ first two appraiser/brokers, and the fair market rental rate shall be established by the three appraiser/brokers in accordance with the following procedures: The appraiser/broker selected by each party shall state in writing his other determination of the rental rate, taking into consideration the rental rates for comparable properties in the Mountain View/Palo Alto area, which determination shall provide for periodic adjustments to the base rent if such appraiser believes that such adjustments are appropriate. The first two appraiser/brokers shall arrange for the simultaneous delivery of their determinations to the third ~~broker,~~ appraiser/broker no later than seven (7) days after the expiration of the Determination Period. The role of the third ~~broker~~ appraiser shall be to select which of the two proposed determinations most closely approximates the third appraiser’s determination of the fair market rental rate, and shall have no more than thirty (30) days in which to select the determination by either Landlord’s broker or Tenant’s broker as the Fair Market Rental Value and shall notify Landlord and Tenant thereof. The third broker, if he or she so elects, may conduct a hearing, at which Landlord and Tenant and their respective brokers may make supplemental oral and/or written presentations, with an opportunity for rebuttal by the other party and its representatives and for questioning by the third broker. No ex parte communications shall be permitted between the third broker and Landlord or Tenant until after the third broker has made his or her final determination. The third ~~broker shall be limited solely to the issue of whether the determination by Landlord’s broker or Tenant’s broker is closest to the actual Fair Market Rental Value and~~ appraiser shall have no right to propose a middle ground or ~~to modify either~~ any modification of the two ~~determinations or the provisions of this Lease~~proposed determinations. The determination chosen by the third appraiser shall constitute the decision of the ~~third broker shall~~ appraisers and be final and binding ~~upon Landlord and Tenant, and may be enforced in accordance with~~ on the provisions of Utah law. (iv) If either Landlord or Tenant fails to appoint an broker within the time period specified hereinabove, the broker appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such broker’s decision shall be binding upon Landlord and Tenantparties. ~~In the event of the failure, refusal or inability of an broker to act, a successor shall be appointed in the same manner as the original broker. (v)~~ Each party shall pay the ~~costs~~ cost of its own appraiser and ~~fees of~~ shall share equally the ~~broker appointed by such party. The costs and fees~~ cost of the third ~~broker~~appraiser. In the event the appraisers have not determined the Fair Market Rental Value as of the date the Option Period is to begin, Tenant shall on an interim basis pay Landlord monthly rent based upon Landlord’s determination of Fair Market Rental Value as stated in Landlord’s notice to Tenant. If the appraisers’ final determination is less than Landlord’s determination, Tenant shall be entitled to a credit against the next rental payment due from Tenant hereunder in the amount of the difference. Alternatively, if ~~applicable~~the appraisers’ final determination is more than Landlord’s determination, Tenant shall ~~be paid one-half by Landlord and one-half by Tenant~~pay such difference with the next rental payment due.

Appears in 1 contract

Samples: Lease Agreement (eHealth, Inc.)

Fair Market Rental Value. ~~The~~ For purposes of this Lease, the term “Fair Market Rental Value” shall be based upon comparable space in the applicable market area and may include increases in Monthly Base Rent ~~for~~ over the ~~sixth (6th) lease year as described in Paragraph 18 of the Summary of Basic Lease Terms (calendar months seventy-nine (79) through ninety (90) or the Lease Term) shall be the greater of (i) the~~ Option Period. Fair Market Rental Value shall be determined as follows: At least one hundred and twenty (120) days prior to commencement of the Leased Premises, and (ii) a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, which Base Rent shall increase by three percent (3%) each lease year thereafter during the Lease Term. Not less than six (6) months prior to the Termination Notice Deadline (which Termination Notice Deadline will be extended for one day for each day that Landlord is late in providing Landlord’s Good Faith Determination)Option Period, Landlord shall ~~provide~~ notify Tenant ~~with Landlord’s good faith~~ of its determination of the Fair Market Rental ~~Value for the sixth (6th) lease year (“Landlord’s Good Faith Determination”)~~value. If Landlord determines that the Fair Market Rental Value for the sixth (6th) lease year is less than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, the Base Rent for the sixth (6th) lease year Tenant shall be an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year. If Landlord determines that the Fair Market Rental Value for the sixth (6th) Lease Year is greater than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, within have thirty (30) days ~~after Tenant’s receipt~~ from the date of ~~Landlord’s Good Faith Determination, Tenant shall~~ such notice to notify Landlord whether ~~Tenant accepts or rejects Landlord’s~~ it disagrees with such determination. If Tenant fails to so timely notify Landlord within such thirty (30) day period, Tenant shall be deemed to have rejected such determination. If Tenant delivers to Landlord timely notice of its objection to such determination or fails to deliver its approval or objection to Landlord’s Good Faith Determination, Landlord and Tenant shall use good faith efforts to agree upon the Fair Market Rental Value within fifteen (15) business days following Landlord’s receipt of Tenant’s notice of objection (the “Outside Agreement Date”). If Landlord and Tenant are unable to so agree by the Outside Agreement Date, the parties shall appoint brokers and the brokers shall determine the Fair Market Rental Value in accordance with the following procedure: (i) Within fifteen (15) business days following the Outside Agreement Date, Landlord and Tenant shall each appoint a broker who shall be a licensed real estate broker having significant experience in leasing similar office space in the Salt Lake City metropolitan area for at least the immediately preceding ten (10) years prior to such appointment. The two brokers so appointed shall jointly attempt to agree upon the Fair Market Rental Value. If the brokers are unable to agree within thirty (30) days after appointment of the last appointed broker, then within ten (10) business days after expiration of such thirty (30) day period, the brokers shall meet and concurrently deliver to each other their respective written determinations of the Fair Market Rental Value for the sixth (6th) lease year supported by the reasons therefor, and promptly deliver copies of their determinations to Landlord and Tenant. If the higher of such determinations is not more than one hundred five percent (105%) of the lower, then the Fair Market Rental Value shall be the average of the two determinations. Otherwise, the Fair Market Rental Value shall be ~~determined by a third broker~~ as ~~set forth below.~~ established in Landlord’s notice. If Tenant gives Landlord timely notice of its disagreement, within fifteen (ii15) ~~The two brokers shall appoint a third broker, having the qualifications stated above, and shall notify the parties~~ days of the ~~identity~~ date of such ~~third broker~~notice, Landlord and Tenant shall negotiate in good faith to resolve the Fair Market Rental for an additional fifteen (15) day period. If the ~~two brokers are unable~~ parties have not resolved Fair Market Rental within such time, promptly thereafter each shall specify in writing to ~~agree upon~~ each other the name and address of a ~~third~~ person to act as the appraiser or broker ~~within twenty (20) days, either party may, upon not less than~~ on its behalf. Each such person shall be an MAI certified commercial real estate broker or appraiser with at least five (5) ~~days’ written notice to~~ years of experience with the ~~other party, apply to the American Arbitration Association~~ prevailing market rents for the ~~appointment~~ area in which the Premises are located. If either party fails to timely appoint an appraiser or broker, the determination of ~~a third~~ the timely appointed appraiser or broker ~~meeting the qualifications stated above. (iii) Within~~ shall be final and binding. The two appraiser/brokers shall have thirty (30) days ~~after submission~~ from the day of their respective appointments (the “Determination Period”) to make their respective determinations and agree on the fair market rental rate. If the two appraiser/brokers selected by the Landlord and Tenant cannot reach agreement on the fair market rental rate, such appraisers shall within fifteen (15) days jointly appoint an impartial third appraiser/broker with qualifications similar to those of the ~~matter~~ first two appraiser/brokers, and the fair market rental rate shall be established by the three appraiser/brokers in accordance with the following procedures: The appraiser/broker selected by each party shall state in writing his other determination of the rental rate, taking into consideration the rental rates for comparable Class A office properties in the Mountain View/Palo Alto area, which determination shall provide for periodic adjustments to the base rent if such appraiser believes that such adjustments are appropriate. The first two appraiser/brokers shall arrange for the simultaneous delivery of their determinations to the third ~~broker,~~ appraiser/broker no later than seven (7) days after the expiration of the Determination Period. The role of the third ~~broker~~ appraiser shall be to select which of the two proposed determinations most closely approximates the third appraiser’s determination of the fair market rental rate, and shall have no more than thirty (30) days in which to select the determination by either Landlord’s broker or Tenant’s broker as the Fair Market Rental Value and shall notify Landlord and Tenant thereof. The third broker, if he or she so elects, may conduct a hearing, at which Landlord and Tenant and their respective brokers may make supplemental oral and/or written presentations, with an opportunity for rebuttal by the other party and its representatives and for questioning by the third broker. No ex parte communications shall be permitted between the third broker and Landlord or Tenant until after the third broker has made his or her final determination. The third ~~broker shall be limited solely to the issue of whether the determination by Landlord’s broker or Tenant’s broker is closest to the actual Fair Market Rental Value and~~ appraiser shall have no right to propose a middle ground or ~~to modify either~~ any modification of the two ~~determinations or the provisions of this Lease~~proposed determinations. The determination chosen by the third appraiser shall constitute the decision of the ~~third broker shall~~ appraisers and be final and binding ~~upon Landlord and Tenant, and may be enforced in accordance with~~ on the provisions of Utah law. (iv) If either Landlord or Tenant fails to appoint an broker within the time period specified hereinabove, the broker appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such broker’s decision shall be binding upon Landlord and Tenantparties. ~~In the event of the failure, refusal or inability of an broker to act, a successor shall be appointed in the same manner as the original broker. (v)~~ Each party shall pay the ~~costs~~ cost of its own appraiser and ~~fees of~~ shall share equally the ~~broker appointed by such party. The costs and fees~~ cost of the third ~~broker~~appraiser. In the event the appraisers have not determined the Fair Market Rental Value as of the date the Option Period is to begin, Tenant shall on an interim basis pay Landlord monthly rent based upon Landlord’s determination of Fair Market Rental Value as stated in Landlord’s notice to Tenant. If the appraisers’ final determination is less than Landlord’s determination, Tenant shall be entitled to a credit against the next rental payment due from Tenant hereunder in the amount of the difference. Alternatively, if ~~applicable~~the appraisers’ final determination is more than Landlord’s determination, Tenant shall ~~be paid one-half by Landlord and one-half by Tenant~~pay such difference with the next rental payment due.

Appears in 1 contract

Samples: Lease Agreement (eHealth, Inc.)

Fair Market Rental Value. ~~The Base Rent~~ For purposes of Section A of this Exhibit G, the term “Fair Market Rental Value” shall mean the market rental value per year for the ~~sixth (6th) lease year~~ Premises, as ~~described in Paragraph 18~~ of the ~~Summary~~ commencement of ~~Basic Lease Terms (calendar months seventy-nine (79) through ninety (90) or~~ the ~~Lease~~ applicable Extension Term~~) shall be the greater~~ , as agreed by Landlord and Tenant. If Tenant is unwilling to accept Landlord’s estimate of ~~(i) the~~ Fair Market Rental Value as set forth in Landlord’s notice referred to in Section A(l) above, and the parties are unable to reach agreement thereon within thirty (30) days after the giving of such notice by Landlord, then Landlord and Tenant shall, not later than thirty (30) days after the expiration of the ~~Leased Premises~~aforesaid thirty (30) day period, ~~and~~ each retain a real estate professional with at least ten (ii10) years continuous experience in the business of appraising or marketing commercial real estate in the greater Boston area who shall, within thirty (30) days of his or her selection, prepare a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, which Base Rent shall increase by three percent (3%) each lease year thereafter during the Lease Term. Not less than six (6) months prior to the Termination Notice Deadline (which Termination Notice Deadline will be extended for one day for each day that Landlord is late in providing Landlord’s Good Faith Determination), Landlord shall provide Tenant with Landlord’s good faith written report summarizing his or her determination of the Fair Market Rental Value for such Extension Term. Landlord and Tenant shall simultaneously exchange such reports; provided, however, if either party has not obtained such a report within sixty (60) days after Tenant receives the ~~sixth (6th) lease year (“Landlord~~Fair Market Rental Value Notice, then the determination set forth in the other party’s ~~Good Faith Determination”)~~report shall be final and binding upon the parties. If ~~Landlord determines that~~ both parties receive reports within such time and the lower determination is within ten percent (10%) of the higher determination, then the greater of (i) the annual Basic Rent in effect immediately preceding such Extension Term or (ii) the average of the two determinations shall be deemed to be the Fair Market Rental Value for such Extension Term. If the ~~sixth (6th) lease year~~ lower determination is ~~less than an amount equal to a three~~ not within ten percent (310%) ~~increase over~~ of the ~~Base Rent owing immediately prior~~ higher determination, then Landlord and Tenant shall mutually select a person with the qualifications stated above (the “Final Professional”) to resolve the ~~sixth (6th) lease year, the Base Rent for the sixth (6th) lease year shall be an amount equal~~ dispute as to ~~a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year. If Landlord determines that~~ the Fair Market Rental Value for such Extension Term. If Landlord and Tenant cannot agree upon the ~~sixth~~ designation of the Final Professional within thirty (~~6th~~30) ~~Lease Year is greater than an amount equal to a three percent (3%) increase over~~ days of the ~~Base Rent owing immediately prior~~ exchange of the first valuation reports, either party may apply to the ~~sixth~~ American Arbitration Association, the Greater Boston Real Estate Board, or any successor thereto, for the designation of a Final Professional. Within ten (~~6th~~10) ~~lease year~~days of the selection of the Final Professional, Landlord and Tenant shall each submit to the Final Professional a copy of their respective real estate professional’s determination of the Fair Market Rental Value for such Extension Term. The Final Professional shall not perform his or her own valuation, but rather shall, within thirty (30) days after ~~Tenant’s receipt of Landlord’s Good Faith Determination~~such submissions, ~~Tenant shall notify Landlord whether Tenant accepts or rejects Landlord’s determination. If Tenant fails~~ select the submission which is closest to ~~notify Landlord within such thirty (30) day period, Tenant shall be deemed to have rejected such determination. If Tenant delivers to Landlord timely notice of its objection to such~~ the determination or fails to deliver its approval or objection to Landlord’s Good Faith Determination, Landlord and Tenant shall use good faith efforts to agree upon the Fair Market Rental Value within fifteen (15) business days following Landlord’s receipt of Tenant’s notice of objection (the “Outside Agreement Date”). If Landlord and Tenant are unable to so agree by the Outside Agreement Date, the parties shall appoint brokers and the brokers shall determine the Fair Market Rental Value in accordance with the following procedure: (i) Within fifteen (15) business days following the Outside Agreement Date, Landlord and Tenant shall each appoint a broker who shall be a licensed real estate broker having significant experience in leasing similar office space in the Salt Lake City metropolitan area for at least the immediately preceding ten (10) years prior to such appointment. The two brokers so appointed shall jointly attempt to agree upon the Fair Market Rental Value. If the brokers are unable to agree within thirty (30) days after appointment of the last appointed broker, then within ten (10) business days after expiration of such thirty (30) day period, the brokers shall meet and concurrently deliver to each other their respective written determinations of the Fair Market Rental Value for such Extension Term which the sixth (6th) lease year supported by the reasons therefor, and promptly deliver copies of their determinations to Landlord and Tenant. If the higher of such determinations is not more than one hundred five percent (105%) of the lower, then the Fair Market Rental Value shall be the average of the two determinations. Otherwise, the Fair Market Rental Value shall be determined by a third broker as set forth below. (ii) The two brokers shall appoint a third broker, having the qualifications stated above, and shall notify the parties of the identity of such third broker. If the two brokers are unable to agree upon a third broker within twenty (20) days, either party may, upon not less than five (5) days’ written notice to the other party, apply to the American Arbitration Association for the appointment of a third broker meeting the qualifications stated above. (iii) Within thirty (30) days after submission of the matter to the third broker, the third broker shall select the determination by either Landlord’s broker or Tenant’s broker as the Fair Market Rental Value and shall notify Landlord and Tenant thereofFinal Professional would have made acting alone. The ~~third broker, if he~~ Final Professional shall give notice of his or ~~she so elects, may conduct a hearing, at which~~ her selection to Landlord and Tenant and their respective brokers may make supplemental oral and/or written presentations, with an opportunity for rebuttal by the other party and its representatives and for questioning by the third broker. No ex parte communications shall be permitted between the third broker and Landlord or Tenant until after the third broker has made his or her determination. The third broker shall be limited solely to the issue of whether the determination by Landlord’s broker or Tenant’s broker is closest to the actual Fair Market Rental Value and shall have no right to propose a middle ground or to modify either of the two determinations or the provisions of this Lease. The such decision ~~of the third broker~~ shall be final and binding upon Landlord and Tenant, and may be enforced in accordance with the provisions of Utah law. (iv) If either Landlord or Tenant fails to appoint an broker within the time period specified hereinabove, the broker appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such broker’s decision shall be binding upon Landlord and Tenant. ~~In the event of the failure, refusal or inability of an broker to act, a successor shall be appointed in the same manner as the original broker. (v)~~ Each party shall pay the ~~costs~~ fees and ~~fees~~ expenses of ~~the broker appointed by such party. The costs~~ its real estate professional and ~~fees of the third broker~~counsel, if ~~applicable~~any, in connection with any proceeding under this paragraph, and the parties shall ~~be paid~~ each pay one-half ~~by Landlord~~ of the fees and ~~one-half by Tenant~~expenses of the Final Professional.

Appears in 1 contract

Samples: Lease (Bright Horizons Family Solutions Inc.)

Fair Market Rental Value. ~~The Base~~ (a) For the Extension Option term, the term "Fair Market Rental Value" means the amount of Monthly Rent ~~for the sixth (6th) lease year~~ per Rentable Square Foot, as ~~described in Paragraph 18~~ of the ~~Summary~~ date three (3) months prior to the date on which the Extension Option term commences, that a willing, comparable, new, non-expansion, non-renewal, non-equity tenant would pay and a willing, comparable landlord would accept in an arms' length bona fide negotiation for a lease during the Extension Option term of ~~Basic~~ space comparable to the Premises on the terms and conditions set forth in this Lease ~~Terms (calendar months seventy-nine (79) through ninety (90) or~~ and applicable during the ~~Lease Term) shall be the greater of (i) the~~ Extension Option term. Fair Market Rental Value shall be determined by Landlord considering the most recent new leases and market renewal leases for comparable space and for comparable usage in the Building or, if there are not three (3) or more of such leases in the ~~Leased Premises~~Building, in comparable buildings that are in proximity, within the Del Mar Heights market area, to the Building, whether or not owned or managed by Landlord or other landlords. Appropriate allowances shall be made for any special terms or conditions contained in or pertaining to such leases, it being recognized that the stated face rental rate in a lease ordinarily reflects other economic terms contained in the lease and so does not itself ordinarily reflect an actual market rate, and ~~(ii) a three percent (3%) increase over the Base Rent owing immediately prior~~ it being intended that with respect to the ~~sixth (6th) lease year~~Extension Option term this Lease be economically equivalent, ~~which Base Rent shall increase by three percent (3%) each lease year thereafter during~~ for both Landlord and Tenant, to the ~~Lease Term~~relevant comparable leases. ~~Not less than~~ At least six (6) months prior to the ~~Termination Notice Deadline (~~date on which ~~Termination Notice Deadline will be extended for one day for each day that Landlord~~ the Extension Option term is ~~late in providing Landlord’s Good Faith Determination)~~to commence, Landlord shall ~~provide~~ give Tenant ~~with~~ notice of Landlord~~’s good faith~~ 's determination of the Fair Market Rental Value ~~for~~ and the ~~sixth (6th) lease year (“Landlord’s Good Faith Determination”). If~~ basis on which Landlord determines that the Fair Market Rental Value for the sixth (6th) lease year is less than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, the Base Rent for the sixth (6th) lease year shall be an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year. If Landlord determines that the Fair Market Rental Value for the sixth (6th) Lease Year is greater than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, within thirty (30) days after Tenant’s receipt of Landlord’s Good Faith Determination, Tenant shall notify Landlord whether Tenant accepts or rejects Landlord’s made its determination. If Tenant fails to notify Landlord within such thirty (30) day period, Tenant shall be deemed to have rejected such determination. If Tenant delivers to Landlord timely notice of its objection to such determination or fails to deliver its approval or objection to Landlord’s Good Faith Determination, Landlord and Tenant shall use good faith efforts to agree upon In the ~~Fair Market Rental Value within fifteen (15) business days following Landlord’s receipt of Tenant’s notice of objection (the “Outside Agreement Date”). If~~ event Landlord and Tenant are unable to so agree by the Outside Agreement Date, the parties shall appoint brokers and the brokers shall determine the Fair Market Rental Value in accordance with the following procedure: (i) Within fifteen (15) business days following the Outside Agreement Date, Landlord and Tenant shall each appoint a broker who shall be a licensed real estate broker having significant experience in leasing similar office space in the Salt Lake City metropolitan area for at least the immediately preceding ten (10) years prior to such appointment. The two brokers so appointed shall jointly attempt to agree upon on the Fair Market Rental Value~~. If~~ , after good faith deliberations, by that date (the ~~brokers are unable~~ "Final Date") which is two (2) months prior to ~~agree within thirty (30) days after appointment of~~ the ~~last appointed broker~~date on which the Extension Option term is to commence and Tenant is not then willing to accept Landlord's figure, then ~~within ten (10) business days after expiration~~ Tenant shall on or before the Final Date give Landlord notice of ~~such thirty (30) day period, the brokers shall meet and concurrently deliver to each other their respective written determinations~~ Tenant's determination of the Fair Market Rental Value ~~for~~ and the ~~sixth (6th) lease year supported by~~ basis on which Tenant made its determination. The Parties' respective figures shall be submitted to the ~~reasons therefor~~appraisers upon their appointment as provided below, and ~~promptly deliver copies of their determinations to Landlord and Tenant. If the higher of such determinations is not more than one hundred five percent (105%) of the lower, then~~ the Fair Market Rental Value ~~shall be the average of the two determinations. Otherwise, the Fair Market Rental Value~~ figure shall be determined by a third broker as set forth below. (ii) The two brokers shall appoint a third broker, having the qualifications stated above, and shall notify the parties of the identity of such third broker. If the two brokers are unable to agree upon a third broker within twenty (20) days, either party may, upon not less than five (5) days’ written notice to the other party, apply to the American Arbitration Association for the appointment of a third broker meeting the qualifications stated above. (iii) Within thirty (30) days after submission of the matter to the third broker, the third broker shall select the determination by either Landlord’s broker or Tenant’s broker as the Fair Market Rental Value and shall notify Landlord and Tenant thereof. The third broker, if he or she so elects, may conduct a hearing, at which Landlord and Tenant and their respective brokers may make supplemental oral and/or written presentations, with an opportunity for rebuttal by the other party and its representatives and for questioning by the third broker. No ex parte communications shall be permitted between the third broker and Landlord or Tenant until after the third broker has made his or her determination. The third broker shall be limited solely to the issue of whether the determination by Landlord’s broker or Tenant’s broker is closest to the actual Fair Market Rental Value and shall have no right to propose a middle ground or to modify either of the two determinations or the provisions of this Lease. The decision of the third broker shall be final and binding upon Landlord and Tenant, and may be enforced in accordance with ~~the provisions of Utah law~~Article 4.5(b). (iv) If either Landlord or Tenant fails to appoint an broker within the time period specified hereinabove, the broker appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such broker’s decision shall be binding upon Landlord and Tenant. In the event of the failure, refusal or inability of an broker to act, a successor shall be appointed in the same manner as the original broker. (v) Each party shall pay the costs and fees of the broker appointed by such party. The costs and fees of the third broker, if applicable, shall be paid one-half by Landlord and one-half by Tenant.

Appears in 1 contract

Samples: Office Building Lease (Santarus Inc)

Fair Market Rental Value. The ~~Base Rent~~ fair market rental value (the “FMR”) of the Premises for the ~~sixth~~ two (~~6th~~2) ~~lease year as described in Paragraph 18 of the Summary of Basic Lease Terms (calendar months seventy-nine (79) through ninety (90) or the Lease Term)~~ options shall be ~~the greater of~~ determined as follows: Upon written notice from Tenant to Landlord given no later than one hundred eighty (i180) ~~the Fair Market Rental Value of the Leased Premises, and (ii) a three percent (3%) increase over the Base Rent owing immediately~~ days prior to the ~~sixth (6th) lease year, which Base Rent shall increase by three percent (3%) each lease year thereafter during~~ expiration of the Lease Term. Not less than six (6) months prior to the Termination Notice Deadline (which Termination Notice Deadline will be extended for one day for each day that Landlord is late in providing Landlord’s Good Faith Determination)then-current Term or Option Period, Landlord and Tenant shall ~~provide~~ have a thirty (30) day period in which Landlord and Tenant ~~with Landlord’s good faith determination~~ shall attempt to agree on the FMR of the ~~Fair Market Rental Value~~ Premises for the ~~sixth (6th) lease year (“Landlord’s Good Faith Determination”)~~next succeeding Option Period. If Landlord ~~determines that~~ and Tenant agree on the ~~Fair Market Rental Value~~ FMR for the ~~sixth (6th) lease year is less than~~ Premises, then Landlord and Tenant shall promptly execute an ~~amount equal~~ amendment to ~~a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year,~~ this Lease stating and incorporating such agreed upon FMR as the Base Rent for the ~~sixth (6th) lease year shall be an amount equal~~ next succeeding Option Period, and if Landlord and Tenant are unable to ~~a three percent (3%) increase over~~ agree upon the Base Rent owing immediately prior to the sixth (6th) lease year. If Landlord determines that the Fair Market Rental Value for the sixth (6th) Lease Year is greater than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, FMR within thirty (30) days after Tenant’s receipt of Landlord’s Good Faith Determination, Tenant shall notify Landlord whether Tenant accepts or rejects Landlord’s determination. If Tenant fails to notify Landlord within such said thirty (30) day period, ~~Tenant~~ then the dispute shall be ~~deemed~~ resolved as hereinafter provided; provided, however, notwithstanding anything to ~~have rejected such determination~~the contrary, FMR shall never be less than the Base Rent paid in the final year of the immediately-preceding initial Lease Term or Option Period. If Tenant delivers to Landlord timely notice of its objection to such determination or fails to deliver its approval or objection to Landlord’s Good Faith Determination, Landlord and Tenant shall use good faith efforts to agree upon the Fair Market Rental Value within fifteen (15) business days following Landlord’s receipt of Tenant’s notice of objection (the “Outside Agreement Date”). If Landlord and Tenant are unable to so agree by the Outside Agreement Date, the parties shall appoint brokers and the brokers shall determine the Fair Market Rental Value in accordance with the following procedure: (i) Within fifteen (15) business days following the Outside Agreement Date, Landlord and Tenant shall each appoint a broker who shall be a licensed real estate broker having significant experience in leasing similar office space in the Salt Lake City metropolitan area for at least the immediately preceding ten (10) years prior to such appointment. The two brokers so appointed shall jointly attempt to agree upon the Fair Market Rental Value. If the brokers are unable to agree within thirty (30) days ~~after appointment~~ following delivery of Tenant’s notice, Landlord and Tenant have not mutually agreed on the ~~last appointed broker~~FMR, then ~~within~~ ten (10) ~~business~~ days after the expiration of such ~~thirty (30)~~ thirty-day period, each party shall give written notice to the ~~brokers~~ other setting forth the name and address of an appraiser (as hereinafter defined) selected by such party who has agreed to act in such capacity, to determine the FMR. In determining FMR, the appraiser shall ~~meet~~ take into consideration all relevant factors and ~~concurrently deliver~~ determine FMR based on similar premises in buildings of similar age and condition within the Bloomington, Minnesota rental market, including, without limitation, a deduction from rental to ~~each other their respective written determinations~~ recognize the costs which Landlord would be likely to incur to fixture and lease the Premises, as well as the period of time the Premises would likely be vacant to the extent such costs to fixture and lease and vacancy exceed the Tenant’s costs to relocate to another facility. Each appraiser shall thereupon independently make its determination of the ~~Fair Market Rental Value for~~ FMR within twenty (20) days after the ~~sixth (6th) lease year supported by~~ appointment of the ~~reasons therefor, and promptly deliver copies of their determinations to Landlord and Tenant~~second appraiser. If the two appraisers’ determinations are not the same, but the higher of such ~~determinations~~ two values is not more than one hundred five percent (105%) of the ~~lower~~lower of them, then the ~~Fair Market Rental Value~~ FMR shall be deemed to be the average of the two ~~determinations~~values. ~~Otherwise~~If the higher of such two values is more than one hundred five percent (105%) of the lower of them, then the ~~Fair Market Rental Value~~ two appraisers shall ~~be determined by a third broker as set forth below. (ii) The two brokers shall~~ jointly appoint a third ~~broker, having~~ appraiser within ten (10) days after the ~~qualifications stated above, and shall notify the parties~~ second of the ~~identity~~ two determinations described above has been rendered. The third appraiser shall independently make its determination of ~~such third broker. If~~ the ~~two brokers are unable to agree upon a third broker~~ FMR within twenty (20) days, either party may, upon not less than five (5) days’ written notice to the other party, apply to the American Arbitration Association for the appointment of a third broker meeting the qualifications stated above. (iii) Within thirty (30) days after submission of the matter to the third broker, the third broker shall select the determination by either Landlord’s broker or Tenant’s broker as the Fair Market Rental Value and shall notify Landlord and Tenant thereofhis/her appointment. The ~~third broker, if he or she so elects, may conduct a hearing, at which Landlord~~ highest and ~~Tenant and their respective brokers may make supplemental oral and/or written presentations, with an opportunity for rebuttal by~~ lowest determinations of value among the ~~other party and its representatives and for questioning by the third broker. No ex parte communications~~ three appraisers shall be ~~permitted between~~ disregarded, and the ~~third broker and Landlord or Tenant until after the third broker has made his or her determination. The third broker~~ remaining determination shall be ~~limited solely~~ deemed to be the issue of whether the determination by Landlord’s broker or Tenant’s broker is closest to the actual Fair Market Rental Value and shall have no right to propose a middle ground or to modify either of the two determinations or the provisions FMR. For purposes of this ~~Lease. The decision of the third broker~~ provision, “appraiser” shall ~~be final and binding upon Landlord and Tenant, and may be enforced~~ mean an appraiser who has been regularly engaged in accordance with the provisions of Utah law. (iv) If either Landlord or Tenant fails to appoint an broker within the time period specified hereinabove, the broker appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such ~~broker’s decision shall be binding upon Landlord and Tenant. In the event of the failure, refusal or inability of an broker to act, a successor shall be appointed~~ capacity in the ~~same manner as~~ business of commercial retail leasing in the ~~original broker.~~ St. Pxxx, Minnesota metropolitan area for at least ten (v10) years. Each party shall pay for the ~~costs and fees~~ cost of ~~the broker appointed by such party. The costs and fees of the third broker, if applicable, shall be paid one-half by Landlord~~ its appraiser and one-half ~~by Tenant~~of the cost of the third appraiser.

Appears in 1 contract

Samples: Commercial Lease (Delphax Technologies Inc)

Fair Market Rental Value. The ~~Base Rent for~~ term “Fair Market Rental Value” as utilized in this Section 34 shall mean the ~~sixth (6th) lease year as described in Paragraph 18 of the Summary of Basic Lease Terms (calendar months seventy-nine (79) through ninety (90) or the Lease Term) shall be the greater of (i) the~~ prevailing Fair Market Rental Value of the ~~Leased~~ space in question, on and subject to the covenants and agreements of the Lease, including but not limited to consideration of the fact that the Lease allows adjustments in the Base Rent and further based upon the then-current rent for comparable office space in Comparable Buildings, such valuation to consider such comparable buildings as if such are leased on comparable terms as of the commencement date of the extension in question with those leasehold improvements then in place as are then contained within the Premises and taking into account the age, quality, use and layout of the existing improvements in the Premises, and ~~(ii) a three percent (3%) increase over~~ taking into account items that professional real estate brokers or professional real estate appraisers customarily consider, including, but not limited to, rental rates, space availability, tenant size, tenant improvement allowances, parking charges and any other lease considerations, if any, then being charged or granted by Landlord or the lessors of such similar office buildings. Such Fair Market Rental Value shall include prevailing fixed and/or annual increases in the Base ~~Rent owing immediately prior~~ Rent. Tenant’s BOMA square footage re-measurement, Tenant’s pro rata share of total Building square footage and after-hours HVAC charges, parking allotment ratios and rates are subject to change during the Extended Term. Such determined Fair Market Rental Value shall be the then-current rent for the time period of Tenant’s notice of its exercising its option, not the commencement of the Extended Term. If Tenant gives notice of exercise of the Option, Landlord shall submit to Tenant in writing of Landlord’s proposal as to the ~~sixth~~ applicable Base Rent for the Extended Term within twenty (~~6th~~20) ~~lease year~~days following Landlord’s receipt of Tenant’s Option notice. Within twenty (20) days of such notice from Landlord, ~~which~~ if Tenant should disagree with Landlord’s proposal, Tenant shall so advise Landlord in writing and set forth Tenant’s proposal as to the proper rental to cause rental for the Premises to be not less than the Fair Market Rental Value. Absent such notice, Base Rent shall ~~increase~~ be established at the commencement of such Extended Term as proposed by ~~three percent~~ Landlord. If Tenant gives notice of a proposed Base Rent, Landlord may accept Tenant’s proposal by written notice or seek to meet with Tenant in an attempt to arrive at a mutual agreement as to Base Rent. If Landlord and Tenant, within fifteen (3%15) ~~each lease year thereafter during~~ days of the ~~Lease Term. Not less than six (6) months prior to the Termination Notice Deadline (which Termination Notice Deadline will be extended for one day for each day that Landlord is late in providing~~ date of response by Tenant rejecting Landlord’s ~~Good Faith Determination)~~proposal, ~~Landlord~~ shall ~~provide Tenant with Landlord’s good faith~~ not have agreed as to Base Rent for the Extended Term, then the determination of Base Rent shall be submitted for appraisal as provided below. If the Fair Market Rental Value ~~for~~ is to be determined by appraisal, within ten (10) days after the ~~sixth~~ expiration of the fifteen (~~6th~~15) ~~lease year~~ day negotiation period, Landlord and Tenant shall each appoint a qualified M.A.I. appraiser with at least ten (~~“Landlord’s Good Faith Determination”). If Landlord determines that~~ 10) years real estate experience in Contra Costa county in the ~~Fair Market Rental Value for the sixth (6th) lease year is less than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior~~ San Francisco Bay Area, and give notice of such appointment to the ~~sixth (6th) lease year, the Base Rent for the sixth (6th) lease year shall be an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year~~other. If Landlord determines that the Fair Market Rental Value for the sixth (6th) Lease Year is greater than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease yearSuch appraisers shall, within thirty (30) days after ~~Tenant’s receipt~~ the appointment of ~~Landlord’s Good Faith Determination~~the last of them to be appointed, Tenant shall notify Landlord whether Tenant accepts or rejects Landlord’s determination. If Tenant fails to notify Landlord within such thirty (30) day period, Tenant shall be deemed to have rejected such determination. If Tenant delivers to Landlord timely notice complete their determinations of ~~its objection to such determination or fails to deliver its approval or objection to Landlord’s Good Faith Determination, Landlord and Tenant shall use good faith efforts to agree upon the~~ Fair Market Rental Value ~~within fifteen (15) business days following Landlord’s receipt~~ based on the standards set forth in the definition of Tenant’s notice of objection (the “Outside Agreement Date”). If Landlord and Tenant are unable to so agree by the Outside Agreement Date, the parties shall appoint brokers and the brokers shall determine the Fair Market Rental Value in accordance with the following procedure: (i) Within fifteen (15) business days following the Outside Agreement Date, Landlord and Tenant shall each appoint a broker who shall be a licensed real estate broker having significant experience in leasing similar office space in the Salt Lake City metropolitan area for at least the immediately preceding ten (10) years prior to such appointment. The two brokers so appointed shall jointly attempt to agree upon the Fair Market Rental Value. If the brokers are unable to agree within thirty (30) days after appointment of the last appointed broker, then within ten (10) business days after expiration of such thirty (30) day period, the brokers shall meet and concurrently deliver to each other their respective written determinations of the Fair Market Rental Value for the sixth (6th) lease year supported by the reasons thereforstated above, and ~~promptly deliver copies of~~ submit their ~~determinations~~ appraisal reports separately and in writing to Landlord and Tenant. Failure to complete its respective determination by either appraiser within the 30-day period shall automatically disqualify that late appraiser’s determined Fair Market Rental Value and both parties shall be bound by the other appraisal submitted within the 30-day period. If the ~~higher of such determinations is not more than one hundred~~ valuations vary by five percent (~~105~~5%) ~~of the lower~~or less from their arithmetic average, ~~then~~ the Fair Market Rental Value shall be the arithmetic average of the two ~~determinations. Otherwise, the Fair Market Rental Value shall be determined by a third broker as set forth below.~~ (ii2) ~~The two brokers shall appoint a third broker, having the qualifications stated above, and shall notify the parties of the identity of such third broker~~valuations. If the ~~two brokers are unable to agree upon a third broker within twenty (20) days, either party may, upon not less~~ valuations vary by more than five percent (5%) ~~days’ written notice to~~ from their arithmetic average, then the ~~other party, apply to the American Arbitration Association for the appointment of a third broker meeting the qualifications stated above.~~ two (~~iii~~2) ~~Within thirty~~ appraisers shall within ten (3010) days after submission of the ~~matter~~ last appraisal report, appoint a third appraiser who shall be similarly qualified. If the two (2) appraisers shall be unable to agree within ten (10) days on the selection of a third ~~broker~~appraiser then either party may petition any judge having jurisdiction over the parties to appoint such third appraiser and shall do so within three (3) days thereafter. Such third appraiser shall, ~~the third broker~~ within fifteen (15) days after his or her appointment, shall select ~~the determination by~~ either Landlord’s ~~broker~~ determination or Tenant’s ~~broker as~~ determination of the Fair Market Rental ~~Value and shall notify Landlord and Tenant thereof. The third broker~~Value, if he or she so elects, may conduct a hearing, at which Landlord and Tenant and their respective brokers may make supplemental oral and/or written presentations, with an opportunity for rebuttal by the other party and its representatives and for questioning by the third broker. No ex parte communications shall be permitted between the third broker and Landlord or Tenant until after the third broker has made his or her determination. The third broker shall be limited solely to the issue of whether the determination by Landlord’s broker or Tenant’s broker is closest to the actual Fair Market Rental Value and shall have no right to propose a middle ground or to modify either of the two ~~determinations~~ proposals or the provisions of this Lease. The decision of the third ~~broker~~ appraiser shall be final and binding upon ~~Landlord and Tenant~~the parties, and may be enforced in accordance with the provisions of ~~Utah~~ California law. (iv) If either Landlord or Tenant fails to appoint an broker within the time period specified hereinabove, the broker appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such broker’s decision shall be binding upon Landlord and Tenant. In the event of the failure, refusal or inability of ~~an broker~~ the third appraiser to act, a successor shall be appointed in the ~~same~~ manner as that applied to the ~~original broker. (v) Each~~ selection of the member being replaced. Landlord and Tenant shall each pay the fee of its respective appraiser, and if a third appraiser is required, each party shall pay ~~the costs and fees of the broker appointed by such party. The costs and fees~~ shall pay one-half (½) of the third ~~broker~~appraiser’s fee. Should the appraisal not be completed as necessary to determine the adjustment of Base Rent prior to commencement of the Extended Term, ~~if applicable,~~ Base Rent shall be paid ~~one-half by~~ each month at the same rate as applicable to the last year of the initial Term or first Extended Term, as applicable, and if an increase or decrease is found due, the amount of such increase or decrease shall be paid to the party entitled thereto within thirty (30) days of notice of appraisal result being furnished to Landlord and ~~one-half by~~ Tenant, such payment to be for a period from the commencement of the Extended Term for each monthly rental installation which became due prior to the date the notice of appraisal result was given.

Appears in 1 contract

Samples: Lease Agreement (Cerus Corp)

Fair Market Rental Value. ~~The Base Rent~~ Fair market rental value means the rent a tenant would pay for a five year term for the ~~sixth (6th) lease year as described~~ Premises based on the prevailing rent being charged to tenants for comparable space in ~~Paragraph 18 of~~ comparable buildings for the ~~Summary of Basic Lease Terms (calendar months seventy-nine (79) through~~ period coinciding with the option period, taking into account all relevant factors. Fair market rental value shall be determined in the following manner. At least ninety (90) ~~or the Lease Term) shall be the greater of (i) the Fair Market Rental Value of the Leased Premises, and (ii) a three percent (3%) increase over the Base Rent owing immediately~~ days prior to the ~~sixth (6th) lease year, which Base Rent shall increase by three percent (3%) each lease year thereafter during~~ commencement of the Lease Term. Not less than six (6) months prior to the Termination Notice Deadline (which Termination Notice Deadline will be extended for one day for each day that Landlord is late in providing Landlord’s Good Faith Determination)option period, Landlord shall ~~provide~~ notify Tenant ~~with Landlord’s good faith~~ of its determination of ~~the Fair Market Rental Value for the sixth (6th) lease year (“Landlord’s Good Faith Determination”)~~fair market rental value. If Landlord determines that the Fair Market Rental Value for the sixth (6th) lease year is less than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, the Base Rent for the sixth (6th) lease year Tenant shall be an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year. If Landlord determines that the Fair Market Rental Value for the sixth (6th) Lease Year is greater than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, within have thirty (30) days ~~after Tenant’s receipt~~ from the date of ~~Landlord’s Good Faith Determination, Tenant shall notify Landlord whether Tenant accepts or rejects Landlord’s determination. If Tenant fails~~ such notice to notify Landlord ~~within~~ that it disagrees with such ~~thirty (30) day period~~determination. In the event Tenant does not so timely notify Landlord, Tenant shall be deemed to have ~~rejected such~~ disagreed with Landlord’s determination. If In the event Tenant ~~delivers to Landlord timely notice of its objection to such determination or fails to deliver its approval or objection to~~ disagrees with Landlord’s ~~Good Faith Determination~~determination, Landlord and Tenant shall ~~use good faith efforts to agree upon the Fair Market Rental Value~~ each specify within fifteen (15) ~~business~~ days ~~following~~ from Landlord’s receipt of ~~Tenant’s~~ such notice the name and address of ~~objection~~ a person to act as the appraiser on its behalf. The appraiser shall be a licensed real estate appraiser or licensed real estate broker with at least fifteen (15) years of appraisal or leasing experience with the ~~“Outside Agreement Date”)~~San Francisco downtown office market. The two appraisers so appointed shall meet within thirty (30) days of their appointment to determine if they can agree upon the fair market rental value and, if so, the fair market rental value shall be as agreed. If the two appraisers so appointed cannot agree upon the fair market rental value, the two appraisers within forty five (45) days of their appointment shall appoint a third appraiser who shall be a competent and impartial person with qualifications similar to those required of the first two appraisers. If either party fails to appoint an appraiser, or the two appraisers fail to appoint a third, in either case, within ten (10) days after demand by either party, the necessary appraiser shall be appointed by the San Francisco Superior Court or, in its failure or refusal to act, the then Xxxx of the Graduate School of Business of the University of California at Berkeley. If the two appraisers selected by Landlord and Tenant ~~are unable to so agree~~ cannot reach agreement on the prevailing fair market rental value, the value shall be established by the ~~Outside Agreement Date, the parties shall appoint brokers and the brokers shall determine the Fair Market Rental Value~~ three appraisers in accordance with the following procedure~~: (i) Within fifteen (15) business days following the Outside Agreement Date,~~ . The appraisers selected by Landlord and Tenant shall ~~each appoint a broker who shall be a licensed real estate broker having significant experience~~ state in leasing similar office space in the Salt Lake City metropolitan area for at least the immediately preceding ten (10) years prior to such appointment. The two brokers so appointed shall jointly attempt to agree upon the Fair Market Rental Value. If the brokers are unable to agree within thirty (30) days after appointment writing his or her determination of the ~~last appointed broker, then within ten (10) business days after expiration of such thirty (30) day period, the brokers~~ prevailing fair market rental value and shall ~~meet and concurrently deliver to each other their respective written determinations of the Fair Market Rental Value~~ arrange for ~~the sixth (6th) lease year supported by the reasons therefor, and promptly deliver copies of their determinations to Landlord and Tenant. If the higher~~ a simultaneous delivery of such determinations ~~is not more than one hundred five percent (105%)~~ to the third appraiser. The role of the ~~lower, then the Fair Market Rental Value~~ third appraiser shall be ~~the average~~ to select which of the two determinations. Otherwise, the Fair Market Rental Value shall be determined by a third broker as set forth below. (ii) The two brokers shall appoint a third broker, having the qualifications stated above, and shall notify the parties proposed determinations most closely approximates his determination of the identity of such third broker. If the two brokers are unable to agree upon a third broker within twenty (20) days, either party may, upon not less than five (5) days’ written notice to the other party, apply to the American Arbitration Association for the appointment of a third broker meeting the qualifications stated above. (iii) Within thirty (30) days after submission of the matter to the third broker, the third broker shall select the determination by either Landlord’s broker or Tenant’s broker as the Fair Market Rental Value and shall notify Landlord and Tenant thereoffair market rental value. The third broker, if he or she so elects, may conduct a hearing, at which Landlord and Tenant and their respective brokers may make supplemental oral and/or written presentations, with an opportunity for rebuttal by the other party and its representatives and for questioning by the third broker. No ex parte communications shall be permitted between the third broker and Landlord or Tenant until after the third broker has made his or her determination. The third broker shall be limited solely to the issue of whether the determination by Landlord’s broker or Tenant’s broker is closest to the actual Fair Market Rental Value and appraiser shall have no right to propose a middle ground or ~~to modify~~ any modification of either of the two ~~determinations or the provisions of this Lease~~proposed determinations. The determination he chooses as most closely approximating his determination shall constitute the decision of the ~~third broker shall~~ appraisers and be final and binding upon ~~Landlord and Tenant, and may be enforced in accordance with~~ the provisions of Utah law. (iv) If either Landlord or Tenant fails to appoint an broker within the time period specified hereinabove, the broker appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such broker’s decision shall be binding upon Landlord and Tenantparties. ~~In the event of the failure, refusal or inability of an broker to act, a successor shall be appointed in the same manner as the original broker. (v)~~ Each party shall pay the ~~costs~~ cost of its own appraiser and ~~fees of~~ shall share the ~~broker appointed by such party. The costs and fees~~ cost of the third ~~broker~~appraiser, if ~~applicable~~any. In the event the appraisers have not determined the fair market rental value as of the date for the rental adjustment, Tenant shall on an interim basis pay Landlord Base Rent based on the Landlord’s determination of fair market rental value. In the event the third appraiser’s determination is less than Landlord’s determination, Tenant shall be ~~paid one-half~~ entitled to a credit against the next rental payment(s) payable by ~~Landlord and one-half by Tenant~~Tenant hereunder in the amount of such difference. Alternatively, if the third appraiser’s determination is more than Landlord’s determination, Tenant shall pay such difference with the next rental payment owing.

Appears in 1 contract

Samples: Lease (Constant Contact, Inc.)

Fair Market Rental Value. ~~The Base Rent~~ With respect to the determination ------------------------ of the fair market rental value of the Property, the parties shall have sixty (60) days in which to agree on the fair market rental for the ~~sixth (6th) lease year as described in Paragraph 18~~ Property at the commencement of the ~~Summary~~ first extended term for the uses permitted hereunder. If the parties agree on such fair market rental they shall execute an amendment to this Lease stating the amount of the applicable Basic ~~Lease Terms~~ Annual Rental. If the parties are unable to agree on such rental within such sixty (~~calendar months seventy-nine~~ 60) day period, then within fifteen (7915) ~~through ninety~~ days after the expiration of such period each party, at its cost and by giving notice to the other party, shall appoint a real estate appraiser who is a member in good standing of the Appraisal Institute holding an "M.A. I. designation with at least five (905) or years experience appraising similar commercial properties in northern San Diego County to appraise and set the ~~Lease Term)~~ fair market rental for the Property at the commencement of the applicable extended term. If either party fails to appoint an appraiser within the allotted time, the single appraiser appointed by the other party shall be the greater of (i) the Fair Market Rental Value of the Leased Premises, and (ii) a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, which Base Rent shall increase by three percent (3%) each lease year thereafter during the Lease Term. Not less than six (6) months prior to the Termination Notice Deadline (which Termination Notice Deadline will be extended for one day for each day that Landlord is late in providing Landlord’s Good Faith Determination), Landlord shall provide Tenant with Landlord’s good faith determination of the Fair Market Rental Value for the sixth (6th) lease year (“Landlord’s Good Faith Determination”)sole appraiser. If ~~Landlord determines that~~ an appraiser is appointed by each party and the ~~Fair Market Rental Value for the sixth (6th) lease year is less than an amount equal~~ two appraisers so appointed are unable to agree upon a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, the Base Rent for the sixth (6th) lease year shall be an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year. If Landlord determines that the Fair Market Rental Value for the sixth (6th) Lease Year is greater than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, fair market rental within thirty (30) days after Tenant’s receipt of Landlord’s Good Faith Determination, Tenant shall notify Landlord whether Tenant accepts or rejects Landlord’s determination. If Tenant fails to notify Landlord within such thirty (30) day period, Tenant shall be deemed to have rejected such determination. If Tenant delivers to Landlord timely notice of its objection to such determination or fails to deliver its approval or objection to Landlord’s Good Faith Determination, Landlord and Tenant shall use good faith efforts to agree upon the Fair Market Rental Value within fifteen (15) business days following Landlord’s receipt of Tenant’s notice of objection (the “Outside Agreement Date”). If Landlord and Tenant are unable to so agree by the Outside Agreement Date, the parties shall appoint brokers and the brokers shall determine the Fair Market Rental Value in accordance with the following procedure: (i) Within fifteen (15) business days following the Outside Agreement Date, Landlord and Tenant shall each appoint a broker who shall be a licensed real estate broker having significant experience in leasing similar office space in the Salt Lake City metropolitan area for at least the immediately preceding ten (10) years prior to such appointment. The two brokers so appointed shall jointly attempt to agree upon the Fair Market Rental Value. If the brokers are unable to agree within thirty (30) days after appointment of the ~~last appointed broker~~second, ~~then~~ they shall appoint a third qualified appraiser within ten (10) ~~business~~ days after expiration of such ~~thirty (~~30) -day period, the brokers shall meet and concurrently deliver to each other their respective written determinations of the Fair Market Rental Value for the sixth (6th) lease year supported by the reasons therefor, and promptly deliver copies of their determinations to Landlord and Tenant. If the higher of such determinations is not more than one hundred five percent (105%) of the lower, then the Fair Market Rental Value shall be the average of the two determinations. Otherwise, the Fair Market Rental Value shall be determined by a third broker as set forth below. (ii) The two brokers shall appoint a third broker, having the qualifications stated above, and shall notify the parties of the identity of such third broker. If the two brokers ; if they are unable to agree upon a third ~~broker within twenty (20) days~~appraiser, either party may, upon not less than five (5) ~~days’ written~~ days notice to the other party, apply to the ~~American Arbitration Association~~ Presiding Judge of the San Diego County Superior Court for the appointment of a third ~~broker meeting~~ qualified appraiser. Each party shall bear its own legal fees in connection with appointment of the ~~qualifications stated above. (iii)~~ third appraiser and shall bear one-half of any other costs of appointment of the third appraiser and of such third appraiser's fee. The third appraiser, however selected, shall be a person who has not previously acted for either party in any capacity. Within thirty (30) days after ~~submission~~ the appointment of the ~~matter~~ third appraiser, a majority of the three appraisers shall set the fair market rental for the applicable extended term and shall so notify the parties. If a majority are unable to agree within the allotted time, the three appraised fair market rentals shall be added together and divided by three and the resulting quotient shall be the fair market rental for the first extended term, which determination shall be binding on the parties and shall be enforceable in any further proceedings relating to this Lease. For purposes of this Paragraph 3.5, the "fair market rental" of the Property shall be determined with reference to the ~~third broker~~then prevailing market rental rates for properties in northern San Diego County, for a renewing tenant, with shell and standard office, research and development improvements and site (common area) improvements comparable in age and character to those then existing in the ~~third broker shall select~~ Initial Building and on the ~~determination by either Landlord’s broker or Tenant’s broker~~ Property, taking into account the fact that Tenant is taking the Property in "as is" condition (but that Tenant has the maintenance and repair obligations set forth herein), that this Lease is a triple net lease and such other matters as the ~~Fair Market Rental Value and shall notify Landlord and Tenant thereof~~appraisers deem appropriate. The third broker, if he or she so elects, may conduct a hearing, at which Landlord and Tenant and their respective brokers may make supplemental oral and/or written presentations, with an opportunity for rebuttal by the other party and its representatives and for questioning by the third broker. No ex parte communications shall be permitted between the third broker and Landlord or Tenant until after the third broker has made his or her determination. The third broker shall be limited solely to the issue of whether the determination by Landlord’s broker or Tenant’s broker is closest to the actual Fair Market Rental Value and appraisers shall have no right to ~~propose~~ award a ~~middle ground~~ Tenant improvement allowance or ~~to modify either of the two determinations or the provisions of this Lease. The decision of the third broker~~ other monetary concessions, but shall ~~be final and binding upon Landlord and Tenant, and may be enforced~~ take into account any such concessions granted in ~~accordance~~ connection with the provisions of Utah law. (iv) If either Landlord or Tenant fails to appoint an broker within the time period specified hereinabove, the broker appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such broker’s decision shall be binding upon Landlord and Tenant. In the event of the failure, refusal or inability of an broker to act, a successor shall be appointed similar leases used for comparison in the ~~same manner as the original broker~~determination of Rent. ~~(v) Each party shall pay the costs and fees of the broker appointed by such party. The costs and fees of the third broker, if applicable, shall be paid one-half by Landlord and one-half by Tenant.~~

Appears in 1 contract

Samples: Build to Suit Lease (Advanced Tissue Sciences Inc)

Fair Market Rental Value. ~~The Base Rent~~ Fair market rental value means the rent a tenant would pay for a three (3) year term for the ~~sixth (6th) lease year~~ Premises “as ~~described~~ is” receiving no free rent, construction or other inducements and on all the other terms and conditions of this Lease based on the prevailing rent being charged to tenants for comparable space in ~~Paragraph 18~~ comparable buildings in the vicinity of the ~~Summary of Basic Lease Terms (calendar months seventy-nine (79) through~~ building in downtown San Francisco for the period coinciding with the option period. Fair market rental value shall be determined in the following manner. At least ninety (90) ~~or the Lease Term) shall be the greater of (i) the Fair Market Rental Value of the Leased Premises, and (ii) a three percent (3%) increase over the Base Rent owing immediately~~ days prior to the ~~sixth (6th) lease year, which Base Rent shall increase by three percent (3%) each lease year thereafter during~~ commencement of the Lease Term. Not less than six (6) months prior to the Termination Notice Deadline (which Termination Notice Deadline will be extended for one day for each day that Landlord is late in providing Landlord’s Good Faith Determination)option period, Landlord shall ~~provide~~ notify Tenant of its determination of fair market rental value. Tenant shall have thirty (30) days from the date of such notice to notify Landlord that it disagrees with such determination. In the event Tenant does not so timely notify Landlord, the fair market rental value shall be as established in Landlord’s notice. In the event Tenant does notify Landlord that it disagrees with Landlord’s ~~good faith determination of the Fair Market Rental Value for the sixth~~ determination, Landlord and Tenant shall each specify within fifteen (~~6th~~15) ~~lease year (“~~days from Landlord’s ~~Good Faith Determination”)~~receipt of such notice the name and address of a person to act as the appraiser on its behalf. If Landlord determines that the Fair Market Rental Value for the sixth (6th) lease year is less than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, the Base Rent for the sixth (6th) lease year The appraiser shall be ~~an amount equal to~~ a ~~three percent (3%) increase over~~ licensed real estate appraiser or licensed real estate broker familiar with prevailing market rentals in the ~~Base Rent owing immediately prior to the sixth (6th) lease year~~area. If Landlord determines that the Fair Market Rental Value for the sixth (6th) Lease Year is greater than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, The two appraisers so appointed shall meet within thirty (30) days ~~after Tenant’s receipt~~ of ~~Landlord’s Good Faith Determination~~their appointment to determine if they can agree upon the fair market rental value and, ~~Tenant~~ if so, the fair market rental value shall ~~notify Landlord whether Tenant accepts or rejects Landlord’s determination~~be as agreed. If ~~Tenant~~ the two appraisers so appointed cannot agree upon the fair market rental value, the two appraisers within forty five (45) days of their appointment shall appoint a third appraiser who shall be a competent and impartial person with qualifications similar to those required of the first two appraisers. If either party fails to ~~notify Landlord~~ appoint an appraiser, or the two appraisers fail to appoint a third, in either case, within ~~such thirty~~ ten (3010) ~~day period~~days after demand by either party, ~~Tenant~~ the necessary appraiser shall be ~~deemed~~ appointed by the San Francisco Superior Court or, in its failure or refusal to ~~have rejected such determination~~act, the then Xxxx of the Graduate School of Business of the University of California at Berkeley. If ~~Tenant delivers to Landlord timely notice of its objection to such determination or fails to deliver its approval or objection to Landlord’s Good Faith Determination,~~ the two appraisers selected by Landlord and Tenant cannot reach agreement on the prevailing fair market rental value, the value shall use good faith efforts to agree upon the Fair Market Rental Value within fifteen (15) business days following Landlord’s receipt of Tenant’s notice of objection (the “Outside Agreement Date”). If Landlord and Tenant are unable to so agree be established by the ~~Outside Agreement Date, the parties shall appoint brokers and the brokers shall determine the Fair Market Rental Value~~ three appraisers in accordance with the following procedure~~: (i) Within fifteen (15) business days following the Outside Agreement Date,~~ . The appraisers selected by Landlord and Tenant shall ~~each appoint a broker who shall be a licensed real estate broker having significant experience~~ state in leasing similar office space in the Salt Lake City metropolitan area for at least the immediately preceding ten (10) years prior to such appointment. The two brokers so appointed shall jointly attempt to agree upon the Fair Market Rental Value. If the brokers are unable to agree within thirty (30) days after appointment writing his or her determination of the ~~last appointed broker, then within ten (10) business days after expiration of such thirty (30) day period, the brokers~~ prevailing fair market rental value and shall ~~meet and concurrently deliver to each other their respective written determinations of the Fair Market Rental Value~~ arrange for ~~the sixth (6th) lease year supported by the reasons therefor, and promptly deliver copies of their determinations to Landlord and Tenant. If the higher~~ a simultaneous delivery of such determinations ~~is not more than one hundred five percent (105%)~~ to the third appraiser. The role of the ~~lower, then the Fair Market Rental Value~~ third appraiser shall be ~~the average~~ to select which of the two determinations. Otherwise, the Fair Market Rental Value shall be determined by a third broker as set forth below. (ii) The two brokers shall appoint a third broker, having the qualifications stated above, and shall notify the parties proposed determinations most closely approximates his determination of the identity of such third broker. If the two brokers are unable to agree upon a third broker within twenty (20) days, either party may, upon not less than five (5) days’ written notice to the other party, apply to the American Arbitration Association for the appointment of a third broker meeting the qualifications stated above. (iii) Within thirty (30) days after submission of the matter to the third broker, the third broker shall select the determination by either Landlord’s broker or Tenant’s broker as the Fair Market Rental Value and shall notify Landlord and Tenant thereoffair market rental value. The third broker, if he or she so elects, may conduct a hearing, at which Landlord and Tenant and their respective brokers may make supplemental oral and/or written presentations, with an opportunity for rebuttal by the other party and its representatives and for questioning by the third broker. No ex parte communications shall be permitted between the third broker and Landlord or Tenant until after the third broker has made his or her determination. The third broker shall be limited solely to the issue of whether the determination by Landlord’s broker or Tenant’s broker is closest to the actual Fair Market Rental Value and appraiser shall have no right to propose a middle ground or ~~to modify~~ any modification of either of the two ~~determinations or the provisions of this Lease~~proposed determinations. The determination he chooses as most closely approximating his determination shall constitute the decision of the ~~third broker shall~~ appraisers and be final and binding upon ~~Landlord and Tenant, and may be enforced in accordance with~~ the provisions of Utah law. (iv) If either Landlord or Tenant fails to appoint an broker within the time period specified hereinabove, the broker appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such broker’s decision shall be binding upon Landlord and Tenantparties. ~~In the event of the failure, refusal or inability of an broker to act, a successor shall be appointed in the same manner as the original broker. (v)~~ Each party shall pay the ~~costs~~ cost of its own appraiser and ~~fees of~~ shall share the ~~broker appointed by such party. The costs and fees~~ cost of the third ~~broker~~appraiser, if ~~applicable~~any. In the event the appraisers have not determined the fair market rental value as of the date for the rental adjustment, Tenant shall on an interim basis pay Landlord Base Rent based on the Landlord’s determination of fair market rental value. In the event the third appraiser’s determination is less than Landlord’s determination, Tenant shall be ~~paid one-half~~ entitled to a credit against the next rental payment(s) payable by ~~Landlord and one-half by Tenant~~Tenant hereunder in the amount of such difference. Alternatively, if the third appraiser’s determination is more than Landlord’s determination, Tenant shall pay such difference with the next rental payment owing.

Appears in 1 contract

Samples: Lease (Trulia, Inc.)

Fair Market Rental Value. ~~The Base Rent for the sixth~~ (~~6th~~a) ~~lease year as described in Paragraph 18 of the Summary of Basic Lease Terms (calendar months seventy-nine (79) through ninety (90) or the Lease Term)~~ Landlord and Tenant shall ~~be the greater of (i)~~ attempt to determine the Fair Market Rental Value using their best good faith efforts. In the event that Landlord and Tenant are unable to agree within sixty (60) days following Tenant’s exercise (the “Trigger Date”), then the Fair Market Rental Value shall be determined in accordance with the terms of subparagraph (b) below. (b) If Landlord and Tenant are unable to reach agreement on the ~~Leased Premises~~Fair Market Rental Value by the Trigger Date, then within seven (7) Business Days thereafter, Landlord and ~~(ii) a three percent (3%) increase over the Base Rent owing immediately prior~~ Tenant shall each submit to the sixth (6th) lease year, which Base Rent shall increase by three percent (3%) each lease year thereafter during the Lease Term. Not less than six (6) months prior to the Termination Notice Deadline (which Termination Notice Deadline will be extended for one day for each day that Landlord is late other in ~~providing Landlord’s Good Faith Determination), Landlord shall provide Tenant with Landlord’s~~ a sealed envelope its good faith ~~determination~~ estimate of the Fair Market Rental Value for the ~~sixth~~ applicable Renewal Term (~~6th) lease year (~~each a “~~Landlord’s Good Faith Determination~~Fair Market Rental Value Proposal”). If either Landlord ~~determines that~~ or Tenant fails to propose a Fair Market Rental Value at such time, and then fails to submit a Fair Market Rental Value Proposal within ten (10) Business Days after receipt of the other party’s Fair Market Rental Value Proposal, then the Fair Market Rental Value for the sixth (6th) lease year is less than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, the Base Rent for the sixth (6th) lease year shall be an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year. If Landlord determines that the Fair Market Rental Value for the sixth (6th) Lease Year is greater than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, within thirty (30) days after Tenant’s receipt of Landlord’s Good Faith Determination, Tenant shall notify Landlord whether Tenant accepts or rejects Landlord’s determination. If Tenant fails to notify Landlord within such thirty (30) day period, Tenant shall be deemed to have rejected such determination. If Tenant delivers to Landlord timely notice of its objection to such determination or fails to deliver its approval or objection to Landlord’s Good Faith Determination, Landlord and Tenant shall use good faith efforts to agree upon the Fair Market Rental Value within fifteen (15) business days following Landlord’s receipt of Tenant’s notice of objection (the “Outside Agreement Date”). If Landlord and Tenant are unable to so agree Renewal Term proposed by the ~~Outside Agreement Date, the parties~~ responding party shall appoint brokers and the brokers shall determine the Fair Market Rental Value in accordance with the following procedure: (i) Within fifteen (15) business days following the Outside Agreement Date, Landlord and Tenant shall each appoint a broker who shall be a licensed real estate broker having significant experience in leasing similar office space in the Salt Lake City metropolitan area for at least the immediately preceding ten (10) years prior to such appointment. The two brokers so appointed shall jointly attempt to agree upon the Fair Market Rental Value. If the brokers are unable to agree within thirty (30) days after appointment of the last appointed broker, then within ten (10) business days after expiration of such thirty (30) day period, the brokers shall meet and concurrently deliver to each other their respective written determinations of the Fair Market Rental Value for the sixth (6th) lease year supported by the reasons therefor, and promptly deliver copies of their determinations to Landlord and Tenantprevail. If the higher of such ~~determinations~~ proposals is not more than one hundred ~~five~~ three percent (~~105~~103%) of the lower, then the Fair Market Rental Value shall be the average of the ~~two determinations~~two. Otherwise, the dispute shall be resolved in accordance with the remainder of this subparagraph (b). Within ten (10) days after the expiration of the foregoing ten (10) Business Day period, Landlord and Tenant shall each appoint one (1) Appraiser (as hereinafter defined). If either party fails to timely select an Appraiser, and then fails to do so within seven (7) Business Days after receipt of written notice from the other of such failure, then the Fair Market Rental Value for the Renewal Term proposed by the party that selected an Appraiser shall prevail. If each party timely selects an Appraiser, then the two Appraisers shall then have fifteen (15) days after the appointment of the second Appraiser in which to determine whether the Landlord’s or the Tenant’s Fair Market Rental Value Proposal should be utilized. In the event that the two Appraisers are unable to agree on either the Landlord’s or the Tenant’s Fair Market Rental Value Proposal within such fifteen (15) day period, then the two Appraisers shall pick a third Appraiser within seven (7) Business Days after the expiration of such fifteen (15) day period. Within fifteen (15) days after appointment of the third Appraiser, the third Appraiser is selected shall make its determination of the Fair Market Rental Value. The Fair Market Rental Value shall be ~~determined by a third broker as set forth below. (ii) The two brokers shall appoint a third broker, having~~ the ~~qualifications stated above, and shall notify the parties~~ average of the ~~identity~~ determination of such third broker. If the two brokers are unable to agree upon a third broker within twenty (20) days, either party may, upon not less than five (5) days’ written notice to the other party, apply to the American Arbitration Association for the appointment of a third broker meeting the qualifications stated above. (iii) Within thirty (30) days after submission of the matter to the third broker, the third broker shall select the determination by either Landlord’s broker or Tenant’s broker as the Fair Market Rental Value and shall notify Landlord and Tenant thereof. The third broker, if he or she so elects, may conduct a hearing, at which Landlord and Tenant and their respective brokers may make supplemental oral and/or written presentations, with an opportunity for rebuttal by the other party and its representatives and for questioning made by the third ~~broker. No ex parte communications shall be permitted between the third broker~~ Appraiser and ~~Landlord or Tenant until after the third broker has made his or her determination. The third broker shall be limited solely to the issue of whether~~ the determination ~~by Landlord’s broker or Tenant’s broker is closest to the actual~~ of Fair Market Rental Value ~~and shall have no right to propose a middle ground or to modify either~~ made by the one of the ~~two determinations or the provisions~~ other Appraisers whose determination of ~~this Lease. The decision~~ Fair Market Rental Value is nearest to that of the third ~~broker~~ Appraiser. The parties understand, stipulate and agree that there will be no compromise, modification or averaging of the Landlord’s and Tenant’s Fair Market Rental Value Proposals once the initial Appraisers are selected, and the Appraisers must select one or the other, and that the proposed Fair Market Rental Value selected by the foregoing arbitration procedure shall be ~~final~~ final, binding, conclusive and binding upon Landlord and Tenant, and may be enforced in accordance with the provisions of Utah law. (iv) If either Landlord or Tenant fails to appoint an broker within the time period specified hereinabove, the broker appointed by one of them shall reach a decision, notify effective on Landlord and Tenant ~~thereof~~for purposes under this Lease, and ~~such broker’s decision~~ same shall not be ~~binding upon Landlord~~ subject to judicial review, mediation or any other legal proceeding. As used herein, the term “Appraiser” shall mean an independent, MAI designated, and ~~Tenant. In the event of the failure~~licensed real estate Appraiser with at least ten (10) years’ experience appraising industrial buildings in [Grand Prairie, ~~refusal or inability of an broker to act~~Texas / Denver, ~~a successor shall be appointed in the same manner as the original broker. (v) Each party shall pay the costs and fees of the broker appointed by such party~~Colorado]. The ~~costs and~~ fees of the third ~~broker~~Appraiser, if applicable, shall be ~~paid one-half~~ shared equally by Landlord and ~~one-half~~ Tenant. The fees of each party’s respective Appraiser, if applicable, shall be borne by ~~Tenant~~that party.

Appears in 1 contract

Samples: Purchase and Sale Agreement (Lincoln Educational Services Corp)

Fair Market Rental Value. The Base Rent ~~for~~ during the ~~sixth (6th) lease year as described in Paragraph 18 of the Summary of Basic Lease Terms (calendar months seventy-nine (79) through ninety (90) or the Lease Term)~~ Extension shall be the ~~greater of (i) the~~ Fair market Rental determined as follows: a. The "Fair Market ~~Rental Value~~ Rental" of the ~~Leased Premises~~Demised Premises means the price that a ready and willing tenant would pay as of the commencement of the Extension as monthly rent to a ready and willing landlord of demised premises comparable to the Demised Premises if the property were exposed for lease on the open market for a reasonable period of time, and ~~(ii) a three percent (3%) increase over~~ taking into account the ~~Base Rent owing immediately prior~~ term of the Extension, the amount of improvements made by Tenant at its expense, the creditworthiness of the Tenant, and all of the purposes for which the property may be used and not just the use proposed to be made of the ~~sixth (6th) lease year, which Base Rent shall increase~~ Demised Premises by ~~three percent (3%) each lease year thereafter during~~ Tenaxx. Xxon proper written notice by Tenant to Landlord of Tenant's election to exercise the Lease Term. Not less than six (6) months prior to the Termination Notice Deadline (which Termination Notice Deadline will be extended for one day for each day that Landlord is late in providing Landlord’s Good Faith Determination)renewal Option, Landlord shall provide Tenant with Landlord’s good faith determination of the Fair Market Rental Value for the sixth (6th) lease year (“Landlord’s Good Faith Determination”). If Landlord determines that the Fair Market Rental Value for the sixth (6th) lease year is less than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, the Base Rent for the sixth (6th) lease year shall be an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year. If Landlord determines that the Fair Market Rental Value for the sixth (6th) Lease Year is greater than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, within thirty (30) days after Tenant’s receipt of Landlord’s Good Faith Determination, Tenant shall notify Landlord whether Tenant accepts or rejects Landlord’s determination. If Tenant fails to notify Landlord within such thirty (30) day period, Tenant shall be deemed to have rejected such determination. If Tenant delivers to Landlord timely notice of its objection to such determination or fails to deliver its approval or objection to Landlord’s Good Faith Determination, Landlord and Tenant shall use good faith efforts to agree upon the Fair Market Rental Value within fifteen (15) ~~business~~ days ~~following~~ thereafter notify Tenant in writing of Landlord’s 's proposed Fair Market Rental amount and Tenant shall thereupon notify Landlord of Tenant's acceptance or rejection of Landxxxx'x xroposed amount. Failure of Tenant to reject Landlord's Fair Market Rental amount within fifteen (15) days after receipt of ~~Tenant’s~~ Landlord's notice shall be deemed Tenaxx'x xcceptance of ~~objection (the “Outside Agreement Date”)~~Landlord's proposed Fair Market Rental amount. b. If Landlord and Tenant ~~are unable~~ have not been able to so agree ~~by the Outside Agreement Date, the parties shall appoint brokers and the brokers shall determine~~ on the Fair Market Rental Value in accordance with the following procedure: (i) Within fifteen (15) business days following the Outside Agreement Date, Landlord and Tenant shall each appoint a broker who shall be a licensed real estate broker having significant experience in leasing similar office space in the Salt Lake City metropolitan area for at least the immediately preceding ten (10) years amount prior to ~~such appointment. The two brokers so appointed shall jointly attempt~~ the date the option is required to agree upon the Fair Market Rental Value. If the brokers are unable to agree within thirty (30) days after appointment of the last appointed broker, then within ten (10) business days after expiration of such thirty (30) day periodbe exercised, the ~~brokers shall meet and concurrently deliver to each other their respective written determinations of the Fair Market Rental Value~~ rent for the sixth (6th) lease year supported by the reasons therefor, and promptly deliver copies of their determinations to Landlord and Tenant. If the higher of such determinations is not more than one hundred five percent (105%) of the lower, then the Fair Market Rental Value shall be the average of the two determinations. Otherwise, the Fair Market Rental Value Extension shall be determined ~~by a third broker~~ as set forth below. (ii) The two brokers shall appoint a third broker, having the qualifications stated above, and shall notify the parties of the identity of such third broker. If the two brokers are unable to agree upon a third broker within twenty (20) days, either party may, upon not less than five (5) days’ written notice to the other party, apply to the American Arbitration Association for the appointment of a third broker meeting the qualifications stated above. (iii) follows: Within thirty (30) days ~~after submission~~ following the exercise of the ~~matter to the third broker~~option, ~~the third broker shall select the determination by either Landlord’s broker or Tenant’s broker as the Fair Market Rental Value and shall notify~~ Landlord and Tenant ~~thereof~~shall endeavor in good faith to agree upon a single Appraiser (defined below). ~~The third broker, if he or she so elects, may conduct a hearing, at which~~ If Landlord and ~~Tenant and their respective brokers may make supplemental oral and/or~~ Tenaxx xxx unable to agree upon a single Appraiser within the thirty day period, each shall then appoint one Appraiser by written ~~presentations~~notice to the other, with an opportunity for rebuttal by the other party and its representatives and for questioning by the third broker. No ex parte communications shall be permitted between the third broker and Landlord or Tenant until given within ten (10) days after the ~~third broker has made his or her determination~~thirty day period. The third broker shall be limited solely to the issue of whether the determination by Landlord’s broker or Tenant’s broker is closest to the actual Fair Market Rental Value and shall have no right to propose a middle ground or to modify either of Within ten (10) days after the two ~~determinations or~~ Appraisers are appointed, the ~~provisions of this Lease~~two Appraisers shall appoint a third Appraiser. ~~The decision of the third broker shall be final and binding upon Landlord and Tenant, and may be enforced in accordance with the provisions of Utah law. (iv)~~ If either Landlord or Tenant fails to appoint ~~an broker~~ its Appraiser within the prescribed time period ~~specified hereinabove,~~ the ~~broker~~ single Appraiser appointed ~~by one of them~~ shall ~~reach a decision, notify Landlord and Tenant thereof, and such broker’s decision shall be binding upon Landlord and Tenant. In~~ determine the ~~event~~ Fair Market Rental amount of the ~~failure, refusal or inability of an broker to act, a successor shall be appointed in the same manner as the original broker. (v)~~ Demised Premises. Each party shall ~~pay~~ bear the ~~costs and fees~~ cost of the ~~broker~~ appraiser appointed by ~~such party. The costs~~ it and ~~fees~~ the parties shall share equally the cost of the third ~~broker, if applicable,~~ appraiser. The term "Appraiser" means a State Certified Real Estate Appraiser licensed by the State of Texas to value commercial property. c. The Fair Market Rental Value of the Demised Premises shall be the average of two of the three appraisals which are closest in amount as described below, and the third appraisal shall be disregarded. In no event shall the Rent be reduced by reason of such computation. If the Fair Market Rental is not determined prior to the commencement of the Extension, then Tenant shall continue to pay to Landlord the Rent applicable to the Demised Premises immediately prior to the Extension until the Fair Market Rental amount is determined, and when it is determined, Tenant shall pay to Landlord within ten (10) days after receipt of such notice the difference between the Rent actually paid ~~one-half~~ by Tenant to Landlord and ~~one-half by Tenant~~the new Rent determined under this Lease.

Appears in 1 contract

Samples: Commercial Contract of Sale (Cerprobe Corp)

Fair Market Rental Value. ~~The~~ For purposes of this Lease, the term "Fair Market Rental Value" shall be based upon comparable space in the applicable market area and may include increases in Monthly Base Rent ~~for~~ over the ~~sixth (6th) lease year as described in Paragraph 18 of the Summary of Basic Lease Terms (calendar months seventy-nine (79) through ninety (90) or the Lease Term) shall be the greater of (i) the~~ Option Period. Fair Market Rental Value shall be determined as follows: At least one hundred and twenty (120) days prior to commencement of the Leased Premises, and (ii) a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, which Base Rent shall increase by three percent (3%) each lease year thereafter during the Lease Term. Not less than six (6) months prior to the Termination Notice Deadline (which Termination Notice Deadline will be extended for one day for each day that Landlord is late in providing Landlord’s Good Faith Determination)Option Period, Landlord shall ~~provide~~ notify Tenant ~~with Landlord’s good faith~~ of its determination of the Fair Market Rental ~~Value for the sixth (6th) lease year (“Landlord’s Good Faith Determination”)~~value. If Landlord determines that the Fair Market Rental Value for the sixth (6th) lease year is less than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, the Base Rent for the sixth (6th) lease year Tenant shall be an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year. If Landlord determines that the Fair Market Rental Value for the sixth (6th) Lease Year is greater than an amount equal to a three percent (3%) increase over the Base Rent owing immediately prior to the sixth (6th) lease year, within have thirty (30) days ~~after Tenant’s receipt~~ from the date of ~~Landlord’s Good Faith Determination, Tenant shall~~ such notice to notify Landlord whether ~~Tenant accepts or rejects Landlord’s~~ it disagrees with such determination. If Tenant fails to so timely notify Landlord within such thirty (30) day period, Tenant shall be deemed to have rejected such determination. If Tenant delivers to Landlord timely notice of its objection to such determination or fails to deliver its approval or objection to Landlord’s Good Faith Determination, Landlord and Tenant shall use good faith efforts to agree upon the Fair Market Rental Value within fifteen (15) business days following Landlord’s receipt of Tenant’s notice of objection (the “Outside Agreement Date”). If Landlord and Tenant are unable to so agree by the Outside Agreement Date, the parties shall appoint brokers and the brokers shall determine the Fair Market Rental Value in accordance with the following procedure: (i) Within fifteen (15) business days following the Outside Agreement Date, Landlord and Tenant shall each appoint a broker who shall be a licensed real estate broker having significant experience in leasing similar office space in the Salt Lake City metropolitan area for at least the immediately preceding ten (10) years prior to such appointment. The two brokers so appointed shall jointly attempt to agree upon the Fair Market Rental Value. If the brokers are unable to agree within thirty (30) days after appointment of the last appointed broker, then within ten (10) business days after expiration of such thirty (30) day period, the brokers shall meet and concurrently deliver to each other their respective written determinations of the Fair Market Rental Value for the sixth (6th) lease year supported by the reasons therefor, and promptly deliver copies of their determinations to Landlord and Tenant. If the higher of such determinations is not more than one hundred five percent (105%) of the lower, then the Fair Market Rental Value shall be the average of the two determinations. Otherwise, the Fair Market Rental Value shall be ~~determined by a third broker~~ as ~~set forth below.~~ established in Landlord's notice. If Tenant gives Landlord timely notice of its disagreement, within fifteen (ii15) ~~The two brokers shall appoint a third broker, having the qualifications stated above, and shall notify the parties~~ days of the ~~identity~~ date of such ~~third broker~~notice. Landlord and Tenant shall negotiate in good faith to resolve the Fair Market Rental for an additional fifteen (15) day period. If the ~~two brokers are unable~~ parties have not resolved Fair Market Rental within such time, promptly thereafter each shall specify in writing to ~~agree upon~~ each other the name and address of a ~~third~~ person to act as the appraiser or broker ~~within twenty (20) days, either party may, upon not less than~~ on its behalf. Each such person shall be an MAI certified commercial real estate broker or appraiser with at least five (5) ~~days’ written notice to~~ years of experience with the ~~other party, apply to the American Arbitration Association~~ prevailing market rents for the ~~appointment~~ area in which the Premises are located. If either party fails to timely appoint an appraiser or broker, the determination of ~~a third~~ the timely appointed appraiser or broker ~~meeting the qualifications stated above. (iii) Within~~ shall be final and binding. The two appraiser/brokers shall have thirty (30) days ~~after submission~~ from the day of their respective appointments (the "Determination Period") to make their respective determinations and agree on the fair market rental rate. If the two appraiser/brokers selected by the Landlord and Tenant cannot reach agreement on the fair market rental rate, such appraisers shall within fifteen (15) days jointly appoint an impartial third appraiser/broker with qualifications similar to those of the ~~matter~~ first two appraiser/brokers, and the fair market rental rate shall be established by the three appraiser/brokers in accordance with the following procedures: The appraiser/broker selected by each party shall state in writing his other determination of the rental rate, taking into consideration the rental rates for comparable Class A office properties in the Mountain View/Palo Alto area, which determination shall provide for periodic adjustments to the base rent if such appraiser believes that such adjustments are appropriate. The first two appraiser/brokers shall arrange for the simultaneous delivery of their determinations to the third ~~broker,~~ appraiser/broker no later than seven (7) days after the expiration of the Determination Period. The role of the third ~~broker~~ appraiser shall be to select which of the two proposed determinations most closely approximates the third appraiser's determination of the fair market rental rate, and shall have no more than thirty (30) days in which to select the determination by either Landlord’s broker or Tenant’s broker as the Fair Market Rental Value and shall notify Landlord and Tenant thereof. The third broker, if he or she so elects, may conduct a hearing, at which Landlord and Tenant and their respective brokers may make supplemental oral and/or written presentations, with an opportunity for rebuttal by the other party and its representatives and for questioning by the third broker. No ex parte communications shall be permitted between the third broker and Landlord or Tenant until after the third broker has made his or her final determination. The third ~~broker shall be limited solely to the issue of whether the determination by Landlord’s broker or Tenant’s broker is closest to the actual Fair Market Rental Value and~~ appraiser shall have no right to propose a middle ground or ~~to modify either~~ any modification of the two ~~determinations or the provisions of this Lease~~proposed determinations. The determination chosen by the third appraiser shall constitute the decision of the ~~third broker shall~~ appraisers and be final and binding ~~upon Landlord and Tenant, and may be enforced in accordance with~~ on the provisions of Utah law. (iv) If either Landlord or Tenant fails to appoint an broker within the time period specified hereinabove, the broker appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such broker’s decision shall be binding upon Landlord and Tenantparties. ~~In the event of the failure, refusal or inability of an broker to act, a successor shall be appointed in the same manner as the original broker. (v)~~ Each party shall pay the ~~costs~~ cost of its own appraiser and ~~fees of~~ shall share equally the ~~broker appointed by such party. The costs and fees~~ cost of the third ~~broker, if applicable, shall be paid one-half by Landlord and one-half by Tenant.~~appraiser. 38 WESTC25501828.8

Appears in 1 contract

Samples: Sublease (eHealth, Inc.)

Common use of Fair Market Rental Value Clause in Contracts