Fair Market Rental. Fair Market Rental shall be the actual rental rates for comparable space of comparable financial institutions in other comparable areas of Tracy, California, adjusting to account for, with respect to such rental, any difference between the lease and the lease(s) of comparable space, including without limitation, net versus gross lease provisions. Fair Market Rental shall be determined pursuant to the foregoing factors and shall mean the Fair Market Rental in effect as of the beginning of the Option Period. Not less than sixty (60) days before the beginning of each Option Period, Landlord shall notify Tenant of Landlord's determination of the Fair Market Rental for the Premises for the coming Option Period (the Fair Market Rental Notice). If Tenant disputes the amount of the Fair Market Rental as determined by Landlord, Tenant may require that Landlord submit the dispute to arbitration. The judgment rendered in any such arbitration may be entered in any court having jurisdiction and shall be final and binding between parties. The arbitration shall be conducted in San Francisco, California, in accordance with the then prevailing rules of the American Arbitration Association or its successors for arbitration of commercial disputes, except to the extent that the procedures mandated by such rules shall be modified as follows: Tenant shall make demand for arbitration in writing within twenty (20) business days after receipt of the Fair Market Rental Notice, specifying therein the name and address of the person to act as the arbitrator on Tenant's behalf. The arbitrator shall be qualified as a real estate appraiser familiar with the fair market rental of comparable space in comparable areas in Tracy, California. Failure on the part of Tenant to make a timely and proper demand for such arbitration shall constitute a waiver of the right thereto, and rental for the option period shall be the amount stated in the Fair Market Rental Notice. Within ten (10) business days after the service of the demand for arbitration, Landlord shall give notice to Tenant specifying the name and address of the person designated by Landlord to act as arbitrator on its behalf who shall be similarly qualified. If Landlord fails to notify Tenant of the appointment of its arbitrator within or by the time above specified, then the arbitrator appointed by Tenant shall be the arbitrator to determine the issue. If two arbitrators are chosen pursuant to the preceding paragraph, the arbitrators so chosen shall meet within ten (10) business days after the second arbitrator has been appointed and, if within twenty (20) business days after such meeting the two arbitrators are unable to agree promptly upon a determination of Fair Market Rental, they - themselves - shall appoint a third arbitrator who shall be a competent and impartial person with qualifications similar to those required of the first two arbitrators. If the two arbitrators are unable to agree upon such appointment within five (5) business days after the expiration of such twenty (20) day period, the third arbitrator shall be selected by the parties themselves, if they can agree thereon within a further period of ten (10) business days. If the parties cannot so agree, then either party, on behalf of both, may request the then Chief Judge of the United States District Court having jurisdiction over the City of San Francisco, California, to appoint a third arbitrator and the other party shall not raise any question as to the judge's full power and jurisdiction to entertain the application for and make the appointment. Where the issue cannot be resolved by agreement between the two arbitrators selected by Landlord and Tenant or settled between the parties during the course of arbitration, the issue shall be resolved by the three arbitrators as follows: The arbitrator selected by each of the parties shall state in writing his determination of the Fair Market Rental supported by the reasons therefore with counterpart copies to each party. The arbitrators shall arrange for a simultaneous exchange of such proposed resolutions. The role of the third arbitrator shall be to select which of the two proposed resolutions most closely approximates his determination of Fair Market Rental. The third arbitrator shall have no right to propose -------------------------------------------------------------------------------- 5 a middle ground or any modification of either of the two proposed resolutions. The resolution he chooses as most closely approximating his determination shall constitute the decision of the arbitrators and shall be final and binding upon the parties. If any arbitrator fails, refuses, or is unable to act, his successor shall be appointed by him, but in the case of the third arbitrator, his successor shall be appointed in the same manner as provided for the appointment of the third arbitrator. The arbitrators shall attempt to decide the issue within ten (10) business days after the appointment of the third arbitrator. Any decision in which the arbitrator appointed by Landlord and arbitrator appointed by Tenant concur shall be binding and conclusive upon the parties. Each party shall pay the fee and expense of its respective arbitrator and both shall share the fees and expenses of the third arbitrator, if any. The attorneys' fees and expenses of counsel for the respective parties and of witnesses shall be paid by the respective party engaging such counsel or calling such witnesses. The arbitrators shall have the right to consult experts and competent authorities for factual information or evidence pertaining to a determination of Fair Market Rental, but any such consultation shall be made in the presence of both parties with full right on their part to cross-examine. The arbitrators shall render their decision in writing with counter-part copies to each party. The arbitrators shall have no power to modify the provisions of the lease. If the new rental term begins prior to determination of Fair Market Rental, then the minimum monthly rental initially due during the new rental term shall be the amount stated in the Fair Market Rental Notice. Within fifteen (15) days after determination of the Fair Market Rental, the appropriate party shall pay the other party the difference between the amount actually paid and the amount that should have been paid pursuant to this Paragraph 2. In no case shall the Fixed Minimum Monthly Rent be less than the minimum monthly rent paid immediately preceding the option period year, plus two (2%) percent.
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Fair Market Rental. Fair Market Rental The FRL Space shall be added to the actual rental rates Premises under the same terms, covenants and conditions of the Lease applicable to the Premises, except that the Base Rent for comparable space of comparable financial institutions in other comparable areas of Tracy, California, adjusting to account for, with respect to such rental, any difference between the lease and the lease(s) of comparable space, including without limitation, net versus gross lease provisions. Fair Market Rental FRL Space shall be determined pursuant to the foregoing factors and shall mean the Fair Market Rental Value and Tenant shall not be entitled to any tenant improvements or allowances except as provided in effect Landlord’s Notice of Availability. For purposes of Tenant’s First Right to Lease, “Fair Market Rental Value” of the FRL Space shall be the rental rate at which tenants lease comparable space to the FRL Space which is located in the North San Xxxx submarket as of the beginning of date the Option PeriodFRL Space is to be added to the Premises. Not less than sixty (60) days before For this purpose, “comparable space” shall be [***]. Notwithstanding anything to the beginning of each Option Periodcontrary herein, Landlord shall notify Tenant of Landlord's determination of the Fair Market Rental Value of the FRL Space as determined pursuant to this Paragraph shall include annual escalations.
(i) If Tenant does not accept Landlord’s determination of Fair Market Rental Value of the FRL Space in Tenant’s Notice of Acceptance, Landlord and Tenant shall for the Premises for the coming Option Period ([***] days after Tenant delivers its Notice of Acceptance attempt in good faith to agree on the Fair Market Rental Notice)Value of the FRL Space. If Landlord and Tenant disputes the amount of agree on the Fair Market Rental as determined by Landlord, Tenant may require that Landlord submit the dispute to arbitration. The judgment rendered in any such arbitration may be entered in any court having jurisdiction and shall be final and binding between parties. The arbitration shall be conducted in San Francisco, California, in accordance with the then prevailing rules Value of the American Arbitration Association or its successors for arbitration of commercial disputes, except to the extent that the procedures mandated by such rules shall be modified as follows: Tenant shall make demand for arbitration in writing within twenty (20) business days after receipt of the Fair Market Rental Notice, specifying therein the name and address of the person to act as the arbitrator on Tenant's behalf. The arbitrator shall be qualified as a real estate appraiser familiar with the fair market rental of comparable space in comparable areas in Tracy, California. Failure on the part of Tenant to make a timely and proper demand for such arbitration shall constitute a waiver of the right thereto, and rental for the option period shall be the amount stated in the Fair Market Rental Notice. Within ten (10) business days after the service of the demand for arbitration, Landlord shall give notice to Tenant specifying the name and address of the person designated by Landlord to act as arbitrator on its behalf who shall be similarly qualified. If Landlord fails to notify Tenant of the appointment of its arbitrator within or by the time above specified, then the arbitrator appointed by Tenant shall be the arbitrator to determine the issue. If two arbitrators are chosen pursuant to the preceding paragraph, the arbitrators so chosen shall meet within ten (10) business days after the second arbitrator has been appointed and, if within twenty (20) business days after such meeting the two arbitrators are unable to agree promptly upon a determination of Fair Market Rental, they - themselves - shall appoint a third arbitrator who shall be a competent and impartial person with qualifications similar to those required of the first two arbitrators. If the two arbitrators are unable to agree upon such appointment within five (5) business days after the expiration of FRL Space during such twenty (20) day period, they shall immediately execute an amendment to this Lease stating the third arbitrator Base Rent for the FRL Space.
(ii) If Landlord and Tenant are unable to agree on the Base Rent for the FRL Space within the [***] day period described in the second sentence in the preceding paragraph, then within [***] days after the expiration of said [***] day period, either Landlord or Tenant may refer the matter to arbitration as provided for in this paragraph. The determination of the arbitrator(s) shall be selected limited to the sole issue of whether Landlord’s or Tenant’s submitted Fair Market Rental Value is the closest to the actual Fair Market Rental Value as determined by the parties themselvesarbitrator(s). The arbitrator(s) must be a licensed real estate broker(s) who has/have been active in the leasing of commercial properties in the San Jose, if they can agree thereon within a further California area over the five (5) year period ending on the date of ten his/her/their appointment as arbitrator(s). Within [***] days after the date either Landlord or Tenant has referred to arbitration the determination of Fair Market Rental Value of the FRL Space (10the “Arbitration Referral Date”), Landlord and Tenant shall each (i) appoint one arbitrator and notify the other party of the arbitrator’s name and business daysaddress, and (ii) notify the other party of their determination of Fair Market Rental Value. If each party timely appoints an arbitrator, the parties cannot so agreetwo (2) arbitrators shall, then either party, on behalf of both, may request within [***] days after the then Chief Judge appointment of the United States District Court having jurisdiction over the City of San Franciscosecond arbitrator, California, to agree on and appoint a third arbitrator (who shall be qualified under the same criteria set forth above for qualification of the initial two (2) arbitrators) and the other party shall not raise any question as provide notice to the judge's full power and jurisdiction to entertain the application for and make the appointment. Where the issue cannot be resolved by agreement between the two arbitrators selected by Landlord and Tenant or settled between the parties during the course of arbitration, the issue shall be resolved by the three arbitrators as follows: The arbitrator selected by each of the parties shall state in writing his determination of the Fair Market Rental supported by the reasons therefore with counterpart copies to each partyarbitrator’s name and business address. The arbitrators shall arrange for a simultaneous exchange of such proposed resolutions. The role of the third arbitrator shall be to select which of the two proposed resolutions most closely approximates his determination of Fair Market Rental. The third arbitrator shall have no right to propose -------------------------------------------------------------------------------- 5 a middle ground or any modification of either of the two proposed resolutions. The resolution he chooses as most closely approximating his determination shall constitute the decision of the arbitrators and shall be final and binding upon the parties. If any arbitrator fails, refuses, or is unable to act, his successor shall be appointed by him, but in the case of the third arbitrator, his successor shall be appointed in the same manner as provided for the appointment of the third arbitrator. The arbitrators shall attempt to decide the issue within ten (10) business Within [***] days after the appointment of the third arbitrator. Any decision in which , the arbitrator appointed by three (3) arbitrators shall decide whether the parties will use Landlord’s or Tenant’s submitted Fair Market Rental Value and shall notify Landlord and arbitrator appointed by Tenant concur of their decision. The decision of the majority of the three (3) arbitrators shall be binding on Landlord and conclusive upon Tenant. If either Landlord or Tenant fails to appoint an arbitrator within [***] days after the parties. Each party Arbitration Referral Date, the arbitrator timely appointed by one of them shall pay reach a decision and notify Landlord and Tenant of that decision within [***] days after the fee and expense of its respective arbitrator and both shall share the fees and expenses of the third arbitrator, if any’s appointment. The attorneys' fees and expenses of counsel for the respective parties and of witnesses arbitrator’s decision shall be paid by binding on Landlord and Tenant. If each party appoints an arbitrator in a timely manner, but the respective party engaging such counsel or calling such witnesses. The two (2) arbitrators fail to agree on and appoint a third arbitrator within the required period, the arbitrators shall have be dismissed without delay and the right to consult experts and competent authorities for factual information or evidence pertaining to a determination issue of Fair Market Rental, but any such consultation Rental Value shall be made submitted to binding arbitration under the commercial arbitration rules of the American Arbitration Association (“AAA”), provided that in the presence event of both parties with full right on their part to cross-examine. The arbitrators any inconsistency between such arbitration rules and the terms and conditions of this paragraph, the terms and conditions of this paragraph shall render their decision in writing with counter-part copies to each party. The arbitrators shall have no power to modify govern; and provided, further however, that the provisions sole function of the lease. If the new rental term begins prior to determination of Fair Market Rental, then the minimum monthly rental initially due during the new rental term AAA arbitrator shall be the amount stated in the to select either Landlord’s or Tenant’s submitted Fair Market Rental NoticeValue. Within fifteen (15) days after determination of the Fair Market Rental, the appropriate party shall pay the other party the difference between the amount actually paid If Landlord and the amount that should have been paid pursuant Tenant each fail to this Paragraph 2. In no case shall the Fixed Minimum Monthly Rent be less than the minimum monthly rent paid immediately preceding the option period year, plus two (2%) percent.appoint an arbitrator in
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Samples: Lease (Outset Medical, Inc.)
Fair Market Rental. Whenever a determination of Fair Market Rental is required pursuant to Section 1.04 of this Lease, such Fair Market Rental shall be determined in accordance with the following procedures: Lessor and Lessee shall endeavor to agree upon such Fair Market Rental within thirty (30) days after Lessee notifies Lessor of its intent to extend the Term (the “Initial Date”). Upon reaching any such agreement, the parties shall execute a written agreement setting forth the amount of such Fair Market Rental. If the parties shall not have signed such agreement within thirty (30) days after the Initial Date, Lessor and Lessee shall each appoint a licensed real estate appraiser who shall be familiar with the rental market for comparable buildings in the applicable market area. Each appraiser so appointed shall determine Fair Market Rental. If the higher of such appraisals is equal to 110% or less of the lower, Fair Market Rental shall be the actual rental rates for comparable space simple average of comparable financial institutions in other comparable areas the two appraisals. If the deviation between such appraisals is greater, the appraisers so appointed shall jointly appoint a third independent appraiser (having professional qualifications similar to those of Tracythe initial appraisers), California, adjusting to account for, with respect to such rental, any difference between the lease and the lease(s) of comparable space, including without limitation, net versus gross lease provisions. who shall determine Fair Market Rental shall by reviewing the conclusions of the initial appraisals and determining which he or she believes to be determined pursuant the more reasonable. Lessee may elect to reject the foregoing factors conclusion of such third appraiser and shall mean have the Fair Market Rental in effect as option to withdraw its exercise of the beginning of option to extend the Option Period. Not less than sixty (60) days before the beginning of each Option Period, Landlord shall notify Tenant of Landlord's determination of the Fair Market Rental for the Premises for the coming Option Period (the Fair Market Rental Notice). If Tenant disputes the amount of the Fair Market Rental as determined by Landlord, Tenant may require that Landlord submit the dispute to arbitration. The judgment rendered in any such arbitration may be entered in any court having jurisdiction and shall be final and binding between parties. The arbitration shall be conducted in San Francisco, California, in accordance with the then prevailing rules of the American Arbitration Association or its successors for arbitration of commercial disputes, except to the extent that the procedures mandated by such rules shall be modified as follows: Tenant shall make demand for arbitration in writing within twenty (20) business days after receipt of the Fair Market Rental Notice, specifying therein the name and address of the person to act as the arbitrator on Tenant's behalf. The arbitrator shall be qualified as a real estate appraiser familiar with the fair market rental of comparable space in comparable areas in Tracy, California. Failure on the part of Tenant to make a timely and proper demand for such arbitration shall constitute a waiver of the right thereto, and rental for the option period shall be the amount stated in the Fair Market Rental Notice. Within ten (10) business days after the service of the demand for arbitration, Landlord shall give notice to Tenant specifying the name and address of the person designated by Landlord to act as arbitrator on its behalf who shall be similarly qualified. If Landlord fails to notify Tenant of the appointment of its arbitrator within or by the time above specified, then the arbitrator appointed by Tenant shall be the arbitrator to determine the issue. If two arbitrators are chosen pursuant to the preceding paragraph, the arbitrators so chosen shall meet Term within ten (10) business days after the second arbitrator has been appointed and, if within twenty (20) business days after being notified of such meeting the two arbitrators are unable determination. If Lessee makes such election to agree promptly upon a determination of Fair Market Rental, they - themselves - shall appoint a third arbitrator who shall be a competent and impartial person with qualifications similar to those required withdraw its exercise of the first two arbitrators. If option to extend, the two arbitrators are unable to agree upon such appointment within five (5) business days Lease shall terminate after the expiration of such twenty (20) day period, the third arbitrator shall be selected by the parties themselves, if they can agree thereon within a further period of ten (10) business days. If the parties cannot so agree, then either party, on behalf of both, may request the then Chief Judge existing term of the United States District Court having jurisdiction over Lease. Lessor and Lessee shall each pay the City fee of San Francisco, California, to appoint a third arbitrator the appraiser it appoints and the other party shall not raise any question as to the judge's full power and jurisdiction to entertain the application for and make the appointment. Where the issue cannot be resolved by agreement between the two arbitrators selected by Landlord and Tenant or settled between the parties during the course of arbitration, the issue shall be resolved by the three arbitrators as follows: The arbitrator selected by each of the parties shall state in writing his determination of the Fair Market Rental supported by the reasons therefore with counterpart copies to each party. The arbitrators shall arrange for a simultaneous exchange of such proposed resolutions. The role fee of the third arbitrator appraiser shall be to select which of the two proposed resolutions most closely approximates his determination of Fair Market Rental. The third arbitrator shall have no right to propose -------------------------------------------------------------------------------- 5 a middle ground or any modification of either of the two proposed resolutions. The resolution he chooses as most closely approximating his determination shall constitute the decision of the arbitrators and shall be final and binding upon shared equally by the parties. If any arbitrator failsAll appraisers selected or appointed pursuant to this Section 9.26 shall (A) be independent qualified MAI appraisers, refuses, or is unable to act, his successor shall be appointed by him, but in the case of the third arbitrator, his successor shall be appointed in the same manner as provided for the appointment of the third arbitrator. The arbitrators shall attempt to decide the issue within ten (10B) business days after the appointment of the third arbitrator. Any decision in which the arbitrator appointed by Landlord and arbitrator appointed by Tenant concur shall be binding and conclusive upon the parties. Each party shall pay the fee and expense of its respective arbitrator and both shall share the fees and expenses of the third arbitrator, if any. The attorneys' fees and expenses of counsel for the respective parties and of witnesses shall be paid by the respective party engaging such counsel or calling such witnesses. The arbitrators shall have the right to consult experts and competent authorities for factual information or evidence pertaining to a determination of Fair Market Rental, but any such consultation shall be made in the presence of both parties with full right on their part to cross-examine. The arbitrators shall render their decision in writing with counter-part copies to each party. The arbitrators shall have no right, power or authority to alter or modify the provisions of this Lease, and (C) be registered in the leasestate where the Land is located if said state provides for or requires such registration. If IN WITNESS WHEREOF, the new rental term begins prior parties hereto have caused this Lease to determination be executed as of Fair Market Rentalthe date first above written. LESSOR: NL VENTURES VII XXXXXXX, then L.L.C., a Delaware limited liability company By: /s/ Xxxxx X. Xxxxxxx Name: Xxxxx X. Xxxxxxx Title: President Witness: Name: Witness: Name: LESSEE: GORDMANS, INC., a Delaware corporation By: Name: Title: Witness: Name: Witness: Name: The annual Basic Rent for the minimum monthly rental initially due during Interim Term (as prorated) and the new rental term first Lease Year of the Term shall be $958,375. The Basic Rent shall increase annually by three percent (3.0%) as shown below: Interim Term Date of closing through November 30, 2008 $ 958,375 prorated 1 December 1, 2008 through November 30, 2009 $ 958,375 $ 79,865 2 December 1, 2009 through November 30, 2010 $ 987,126 $ 82,261 3 December 1, 2010 through November 30, 2011 $ 1,016,740 $ 84,728 4 December 1, 2011 through November 30, 2012 $ 1,047,242 $ 87,270 5 December 1, 2012 through November 30, 2013 $ 1,078,660 $ 89,888 6 December 1, 2013 through November 30, 2014 $ 1,111,019 $ 92,585 7 December 1, 2014 through November 30, 2015 $ 1,144,350 $ 95,362 8 December 1, 2015 through November 30, 2016 $ 1,178,680 $ 98,223 9 December 1, 2016 through November 30, 2017 $ 1,214,041 $ 101,170 10 December 1, 2017 through November 30, 2018 $ 1,250,462 $ 104,205 11 December 1, 2018 through November 30, 2019 $ 1,287,976 $ 107,331 12 December 1, 2019 through November 30, 2020 $ 1,326,615 $ 110,551 13 December 1, 2020 through November 30, 2021 $ 1,366,414 $ 113,868 14 December 1, 2021 through November 30, 2022 $ 1,407,406 $ 117,284 15 December 1, 2022 through November 30, 2023 $ 1,449,628 $ 120,802 16 December 1, 2023 through November 30, 2024 $ 1,493,117 $ 124,426 17 December 1, 2024 through November 30, 2025 $ 1,537,911 $ 128,159 18 December 1, 2025 through November 30, 2026 $ 1,584,048 $ 132,004 19 December 1, 2026 through November 30, 2027 $ 1,631,569 $ 135,964 20 December 1, 2027 through November 30, 2028 $ 1,680,516 $ 140,043 Total Rent Lease Years 1-20: $ 25,751,895 If Lessee exercises its option(s) to extend the amount stated in the Term, Basic Rent shall be increased or decreased to Fair Market Rental Noticeas more particularly set forth in Section 9.26 hereof. Within fifteen (15) days after determination Severable Property shall include all apparatus, personal property, trade fixtures, inventory, equipment, machinery, fittings, furniture, furnishings, chattel, materials and supplies located on and used in, or related to Lessee’s business, including, but not limited to, mainframe computers, kitchen equipment and telephone and similar systems and articles of personal property of every kind and nature whatsoever, and any additions, replacements, accessions and substitutions thereto or therefor, and all proceeds of all of the Fair Market Rentalforegoing, including without limitation, the appropriate party equipment described in Schedule D-1 attached hereto. Severable Property shall pay not include the other party the difference between the amount actually paid Improvements. THIS COLLATERAL ACCESS AGREEMENT (this “Agreement”), executed and the amount that should have been paid pursuant to delivered as of this Paragraph 2. In no case shall the Fixed Minimum Monthly Rent be less than the minimum monthly rent paid immediately preceding the option period yearday of , plus two 200 , by and among NL VENTURES VII XXXXXXX, L.L.C., a Delaware limited liability company (2%) percent“Landlord”), GORDMANS, INC., a Delaware corporation (“Company”), and , a (“Lender”).
Appears in 1 contract
Fair Market Rental. Fair Market Rental shall be the actual rental rates for comparable space of comparable financial institutions in other comparable areas of Tracy, California, adjusting If it becomes necessary to account for, with respect to such rental, any difference between the lease and the lease(s) of comparable space, including without limitation, net versus gross lease provisions. Fair Market Rental shall be determined pursuant to the foregoing factors and shall mean determine the Fair Market Rental in effect as of the beginning Property for any purpose under this Lease, Landlord and Tenant shall first attempt to agree on such Fair Market Rental. If Landlord and Tenant are unable to so agree within a reasonable period of the Option Period. Not less than sixty time not to exceed thirty (6030) days, then Landlord and Tenant shall have twenty (20) days before the beginning of each Option Period, Landlord shall notify Tenant of Landlord's determination of the Fair Market Rental for the Premises for the coming Option Period (the Fair Market Rental Notice)to attempt to agree upon a single Appraiser to make such determination. If Tenant disputes the amount parties so agree upon a single Appraiser, such Appraiser shall, within forty-five (45) days of being engaged, determine the Fair Market Rental as determined by Landlord, Tenant may require that Landlord submit the dispute to arbitration. The judgment rendered in any such arbitration may be entered in any court having jurisdiction and shall be final and binding between parties. The arbitration shall be conducted in San Francisco, California, in accordance with the then prevailing rules of the American Arbitration Association or its successors for arbitration of commercial disputes, except relevant date (giving effect to the extent that impact, if any, of inflation from the procedures mandated by such rules shall be modified as follows: Tenant shall make demand for arbitration in writing within twenty (20) business days after receipt date of its decision to the Fair Market Rental Notice, specifying therein the name and address of the person to act as the arbitrator on Tenant's behalf. The arbitrator shall be qualified as a real estate appraiser familiar with the fair market rental of comparable space in comparable areas in Tracy, California. Failure on the part of Tenant to make a timely and proper demand for such arbitration shall constitute a waiver of the right theretorelevant date), and rental for the option period shall be the amount stated in the Fair Market Rental Notice. Within ten (10) business days after the service of the demand for arbitration, Landlord shall give notice to Tenant specifying the name and address of the person designated by Landlord to act as arbitrator on its behalf who shall be similarly qualified. If Landlord fails to notify Tenant of the appointment of its arbitrator within or by the time above specified, then the arbitrator appointed by Tenant shall be the arbitrator to determine the issue. If two arbitrators are chosen pursuant to the preceding paragraph, the arbitrators so chosen shall meet within ten (10) business days after the second arbitrator has been appointed and, if within twenty (20) business days after such meeting the two arbitrators are unable to agree promptly upon a determination of Fair Market Rental, they - themselves - shall appoint a third arbitrator who shall be a competent and impartial person with qualifications similar to those required of the first two arbitrators. If the two arbitrators are unable to agree upon such appointment within five (5) business days after the expiration of such twenty (20) day period, the third arbitrator shall be selected by the parties themselves, if they can agree thereon within a further period of ten (10) business days. If the parties cannot so agree, then either party, on behalf of both, may request the then Chief Judge of the United States District Court having jurisdiction over the City of San Francisco, California, to appoint a third arbitrator and the other party shall not raise any question as to the judge's full power and jurisdiction to entertain the application for and make the appointment. Where the issue cannot be resolved by agreement between the two arbitrators selected by Landlord and Tenant or settled between the parties during the course of arbitration, the issue shall be resolved by the three arbitrators as follows: The arbitrator selected by each of the parties shall state in writing his determination of the Fair Market Rental supported by the reasons therefore with counterpart copies to each party. The arbitrators shall arrange for a simultaneous exchange of such proposed resolutions. The role of the third arbitrator shall be to select which of the two proposed resolutions most closely approximates his determination of Fair Market Rental. The third arbitrator shall have no right to propose -------------------------------------------------------------------------------- 5 a middle ground or any modification of either of the two proposed resolutions. The resolution he chooses as most closely approximating his determination shall constitute the decision of the arbitrators and shall be final and binding upon the parties. If any arbitrator fails, refuses, or is Landlord and Tenant are unable to actagree upon a single Appraiser within such twenty (20) days, his successor then each party shall be appointed by him, but in the case of the third arbitrator, his successor shall be appointed in the same manner as provided for the appointment of the third arbitrator. The arbitrators shall attempt to decide the issue within have ten (10) business days after in which to provide the appointment other with the name of a person selected to act as Appraiser on its behalf. Each such Appraiser shall, within forty-five (45) days of being engaged, determine the Fair Market Rental as of the third arbitratorrelevant date (giving effect to the impact, if any, of inflation from the date of its decision to the relevant date). Any decision in which If the arbitrator appointed by Landlord and arbitrator appointed by Tenant concur difference between the amounts so determined does not exceed ten percent (10%) of the lesser of such amounts, then the Fair Market Rental shall be the average of the amounts so determined, and such average shall be final and binding and conclusive upon the parties. Each If the difference between the amounts so determined exceeds ten percent (10%) of the lesser of such amounts, then such two Appraisers shall have twenty (20) days to appoint a third Appraiser. If the first Appraisers fail to appoint a third Appraiser within such twenty (20) days, either Landlord or Tenant may apply to any court having jurisdiction to have such appointment made by such court. Such third Appraiser, shall, within forty-five (45) days of being selected or appointed, determine the Fair Market Rental as of the relevant date (giving effect to the impact, if any, of inflation from the date of its decision to the relevant date). The determination of the Appraiser which differs most in terms of dollar amount from the determinations of the other two Appraisers shall be excluded, and the Fair Market Rental shall be the average of the amounts of the two remaining determinations, and such average shall be final and binding upon the parties. If either party fails to select an Appraiser within such ten (10) days or a selected Appraiser fails to make its determination within such forty-five (45) days, the Appraiser selected by the other party or the Appraiser that makes its determination with such forty-five (45) days, as applicable, shall alone determine the Fair Market Rental as of the relevant date (giving effect to the impact, if any, of inflation from the date of its decision to the relevant date) and such determination shall be final and binding upon the parties. Landlord and Tenant shall each pay the fees and expenses of the Appraiser appointed by it and each shall pay the fee and expense one-half ( 1⁄2) of its respective arbitrator and both shall share the fees and expenses of the third arbitrator, if anyAppraiser. The attorneys' fees and expenses For purposes of counsel for the respective parties and of witnesses shall be paid by the respective party engaging such counsel or calling such witnesses. The arbitrators shall have the right to consult experts and competent authorities for factual information or evidence pertaining to a determination of Fair Market Rental, but any such consultation shall be made in the presence of both parties with full right on their part to cross-examine. The arbitrators shall render their decision in writing with counter-part copies to each party. The arbitrators shall have no power to modify the provisions of the lease. If the new rental term begins prior to determination of Fair Market Rental, then the minimum monthly rental initially due during the new rental term shall be the amount stated in the Fair Market Rental Notice. Within fifteen (15) days after determination of determining the Fair Market Rental, the appropriate party Property shall pay be valued at its highest and best use which shall be presumed to be as a fully-permitted facility operated in accordance with the other party the difference between the amount actually paid and the amount that should have been paid pursuant to provisions of this Paragraph 2Lease. In no case addition, the following specific matters shall be factored in or out, as appropriate, in determining the Fixed Minimum Monthly Rent be less than the minimum monthly rent paid immediately preceding the option period year, plus two (2%) percent.Fair Market Rental:
Appears in 1 contract
Fair Market Rental. Fair Market Rental (a) For purposes hereof, "FAIR MARKET RENTAL" shall be mean the actual rental rates base rent payable during the applicable lease period to a willing landlord by a willing tenant (neither having a compulsion to lease and Landlord having sufficient time to locate a replacement tenant), for comparable space of comparable financial institutions in other comparable areas of Tracy, California, adjusting to account for, with respect to such rental, any difference between the lease of non-sublease, non-equity real property office buildings, of like size to the Premises, of like and comparable quality to the Premises and the lease(s) Building, which comparable property and improvements are located in the North Richland Hills Office Market (as hereinafter defined), taking into consideration the terms of comparable spacethis Lease (including, including without limitation, net versus gross lease provisions. the available parking being made available to Tenant and whether or not any Landlord's Contribution shall be payable) and the following concessions (collectively, the "CONCESSIONS"): (a) rental abatement concessions, if any, being granted such tenants in connection with such comparable property; (b) the value of interior tenant improvements and interior tenant improvement allowances provided or to be provided for such comparable property; and (c) other reasonable monetary concessions being granted such tenants in connection with such comparable property; provided, however, that in calculating the Fair Market Rental Rental, no consideration shall be determined pursuant given to any period of rental abatement, if any, granted to tenants in comparable transactions in connection with the foregoing factors design, permitting and construction of improvements for such comparable property. As used herein, the term "NORTH RICHLAND HILLS CORRIDOR OFFICE MARKET" shall mean the Fair Market Rental in effect as area within a twenty (20) mile radius of the beginning Building. At least six (6) months prior to the commencement of the Option Period. Not less than sixty (60) days before the beginning of each applicable Option Period, Landlord shall notify Tenant of the Fair Market Rental as determined by Landlord (such determination by Landlord of the Fair Market Rental is herein referred to as "Landlord's Assessment"). Tenant shall, within thirty (30) days after Tenant's receipt of Landlord's Assessment, notify Landlord in writing whether Tenant accepts or rejects Landlord's Assessment. The failure of Tenant to so notify Landlord shall be deemed to be an acceptance by Tenant of Landlord's Assessment and the same shall be the Fair Market Rental. If Tenant timely delivers to Landlord written notice that Tenant does not accept Landlord's Assessment ("Tenant's Objection Notice"), the Fair Market Rental shall be determined as provided in the following subparagraph. Tenant's Objection Notice must identify Tenant's determination of the Fair Market Rental for ("TENANT'S ASSESSMENT") to trigger the Premises for the coming Option Period (the Fair Market Rental Notice). If Tenant disputes the amount of the Fair Market Rental as determined by Landlord, Tenant may require that Landlord submit the dispute to arbitration. The judgment rendered in any such arbitration may be entered in any court having jurisdiction and shall be final and binding between parties. The arbitration shall be conducted in San Francisco, California, in accordance with the then prevailing rules of the American Arbitration Association or its successors for arbitration of commercial disputes, except to the extent that the procedures mandated by such rules shall be modified as follows: Tenant shall make demand for arbitration in writing within twenty (20) business days after receipt of the Fair Market Rental Notice, specifying therein the name and address of the person to act as the arbitrator on Tenant's behalf. The arbitrator shall be qualified as a real estate appraiser familiar with the fair market rental of comparable space in comparable areas in Tracy, California. Failure on the part of Tenant to make a timely and proper demand for such arbitration shall constitute a waiver of the right thereto, and rental for the option period shall be the amount stated in the Fair Market Rental Notice. Within ten (10) business days after the service of the demand for arbitration, Landlord shall give notice to Tenant specifying the name and address of the person designated by Landlord to act as arbitrator on its behalf who shall be similarly qualified. If Landlord fails to notify Tenant of the appointment of its arbitrator within or by the time above specified, then the arbitrator appointed by Tenant shall be the arbitrator to determine the issue. If two arbitrators are chosen pursuant to the preceding paragraph, the arbitrators so chosen shall meet within ten (10) business days after the second arbitrator has been appointed and, if within twenty (20) business days after such meeting the two arbitrators are unable to agree promptly upon a determination of Fair Market Rental, they - themselves - shall appoint a third arbitrator who shall be a competent and impartial person with qualifications similar to those required of the first two arbitrators. If the two arbitrators are unable to agree upon such appointment within five (5) business days after the expiration of such twenty (20) day period, the third arbitrator shall be selected by the parties themselves, if they can agree thereon within a further period of ten (10) business days. If the parties cannot so agree, then either party, on behalf of both, may request the then Chief Judge of the United States District Court having jurisdiction over the City of San Francisco, California, to appoint a third arbitrator and the other party shall not raise any question as to the judge's full power and jurisdiction to entertain the application for and make the appointment. Where the issue cannot be resolved by agreement between the two arbitrators selected by Landlord and Tenant or settled between the parties during the course of arbitration, the issue shall be resolved by the three arbitrators as follows: The arbitrator selected by each of the parties shall state in writing his determination of the Fair Market Rental supported by the reasons therefore with counterpart copies to each party. The arbitrators shall arrange for a simultaneous exchange of such proposed resolutions. The role of the third arbitrator shall be to select which of the two proposed resolutions most closely approximates his determination of Fair Market Rental. The third arbitrator shall have no right to propose -------------------------------------------------------------------------------- 5 a middle ground or any modification of either of the two proposed resolutions. The resolution he chooses as most closely approximating his determination shall constitute the decision of the arbitrators and shall be final and binding upon the parties. If any arbitrator fails, refuses, or is unable to act, his successor shall be appointed by him, but in the case of the third arbitrator, his successor shall be appointed in the same manner as provided for the appointment of the third arbitrator. The arbitrators shall attempt to decide the issue within ten (10) business days after the appointment of the third arbitrator. Any decision in which the arbitrator appointed by Landlord and arbitrator appointed by Tenant concur shall be binding and conclusive upon the parties. Each party shall pay the fee and expense of its respective arbitrator and both shall share the fees and expenses of the third arbitrator, if any. The attorneys' fees and expenses of counsel for the respective parties and of witnesses shall be paid by the respective party engaging such counsel or calling such witnesses. The arbitrators shall have the right to consult experts and competent authorities for factual information or evidence pertaining to a determination of Fair Market Rental, but any such consultation shall be made in the presence of both parties with full right on their part to cross-examine. The arbitrators shall render their decision in writing with counter-part copies to each party. The arbitrators shall have no power to modify the provisions of the lease. If the new rental term begins prior to determination of Fair Market Rental, then the minimum monthly rental initially due during the new rental term shall be the amount stated in the Fair Market Rental Notice. Within fifteen (15) days after determination of the Fair Market Rental, the appropriate party shall pay the other party the difference between the amount actually paid and the amount that should have been paid pursuant to this Paragraph 2. In no case shall the Fixed Minimum Monthly Rent be less than the minimum monthly rent paid immediately preceding the option period year, plus two (2%) percentfollowing appraisal process.
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Samples: Net Lease (Software Spectrum Inc)
