Fair Market Rental. The FRL Space shall be added to the Premises under the same terms, covenants and conditions of the Lease applicable to the Premises, except that the Base Rent for the FRL Space shall be the Fair Market Rental Value and Tenant shall not be entitled to any tenant improvements or allowances except as provided in 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 date the FRL Space is to be added to the Premises. For this purpose, “comparable space” shall be [***]. Notwithstanding anything to the contrary herein, 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 [***] days after Tenant delivers its Notice of Acceptance attempt in good faith to agree on the Fair Market Rental Value of the FRL Space. If Landlord and Tenant agree on the Fair Market Rental Value of the FRL Space during such twenty (20) day period, they shall immediately execute an amendment to this Lease stating the 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 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 arbitrator(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, California area over the five (5) year period ending on the date of 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 (the “Arbitration Referral Date”), Landlord and Tenant shall each (i) appoint one arbitrator and notify the other party of the arbitrator’s name and business address, and (ii) notify the other party of their determination of Fair Market Rental Value. If each party timely appoints an arbitrator, the two (2) arbitrators shall, within [***] days after the appointment of the second arbitrator, 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 provide notice to Landlord and Tenant of the arbitrator’s name and business address. Within [***] days after the appointment of the third arbitrator, the 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 Tenant of their decision. The decision of the majority of the three (3) arbitrators shall be binding on Landlord and Tenant. If either Landlord or Tenant fails to appoint an arbitrator within [***] days after the Arbitration Referral Date, the arbitrator timely appointed by one of them shall reach a decision and notify Landlord and Tenant of that decision within [***] days after the arbitrator’s appointment. The arbitrator’s decision shall be binding on Landlord and Tenant. If each party appoints an arbitrator in a timely manner, but the two (2) arbitrators fail to agree on and appoint a third arbitrator within the required period, the arbitrators shall be dismissed without delay and the issue of Fair Market Rental Value shall be submitted to binding arbitration under the commercial arbitration rules of the American Arbitration Association (“AAA”), provided that in the event of any inconsistency between such arbitration rules and the terms and conditions of this paragraph, the terms and conditions of this paragraph shall govern; and provided, further however, that the sole function of the AAA arbitrator shall be to select either Landlord’s or Tenant’s submitted Fair Market Rental Value. If Landlord and Tenant each fail to appoint an arbitrator in
Appears in 1 contract
Samples: Lease (Outset Medical, Inc.)
Fair Market Rental. The FRL Space (a) For purposes hereof, "FAIR MARKET RENTAL" shall be added mean the 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 the Premises under the same termslease of non-sublease, covenants and conditions non-equity real property office buildings, of the Lease applicable like size to the Premises, except of like and comparable quality to the Premises and the Building, which comparable property and improvements are located in the North Richland Hills Office Market (as hereinafter defined), taking into consideration the terms of this Lease (including, without limitation, 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 Base Rent Fair Market Rental, no consideration shall be given to any period of rental abatement, if any, granted to tenants in comparable transactions in connection with the design, permitting and construction of improvements for such comparable property. As used herein, the FRL Space term "NORTH RICHLAND HILLS CORRIDOR OFFICE MARKET" shall mean the area within a twenty (20) mile radius of the Building. At least six (6) months prior to the commencement of the 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 Value and Rental. If Tenant shall timely delivers to Landlord written notice that Tenant does not be entitled to any tenant improvements or allowances except as provided in accept Landlord’s Notice of Availability. For purposes of 's Assessment ("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 date the FRL Space is to be added to the Premises. For this purpose, “comparable space” shall be [***]. Notwithstanding anything to the contrary herein's Objection Notice"), the Fair Market Rental Value of shall be determined as provided in the FRL Space as determined pursuant to this Paragraph shall include annual escalations.
(i) If Tenant does not accept Landlord’s following subparagraph. Tenant's Objection Notice must identify Tenant's determination of Fair Market Rental Value of the FRL Space in Tenant’s Notice of Acceptance, Landlord and Tenant shall for [***] days after Tenant delivers its Notice of Acceptance attempt in good faith to agree on the Fair Market Rental Value of ("TENANT'S ASSESSMENT") to trigger the FRL Space. If Landlord and Tenant agree on the Fair Market Rental Value of the FRL Space during such twenty (20) day period, they shall immediately execute an amendment to this Lease stating the Base Rent for the FRL Spacefollowing appraisal process.
(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 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 arbitrator(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, California area over the five (5) year period ending on the date of 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 (the “Arbitration Referral Date”), Landlord and Tenant shall each (i) appoint one arbitrator and notify the other party of the arbitrator’s name and business address, and (ii) notify the other party of their determination of Fair Market Rental Value. If each party timely appoints an arbitrator, the two (2) arbitrators shall, within [***] days after the appointment of the second arbitrator, 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 provide notice to Landlord and Tenant of the arbitrator’s name and business address. Within [***] days after the appointment of the third arbitrator, the 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 Tenant of their decision. The decision of the majority of the three (3) arbitrators shall be binding on Landlord and Tenant. If either Landlord or Tenant fails to appoint an arbitrator within [***] days after the Arbitration Referral Date, the arbitrator timely appointed by one of them shall reach a decision and notify Landlord and Tenant of that decision within [***] days after the arbitrator’s appointment. The arbitrator’s decision shall be binding on Landlord and Tenant. If each party appoints an arbitrator in a timely manner, but the two (2) arbitrators fail to agree on and appoint a third arbitrator within the required period, the arbitrators shall be dismissed without delay and the issue of Fair Market Rental Value shall be submitted to binding arbitration under the commercial arbitration rules of the American Arbitration Association (“AAA”), provided that in the event of any inconsistency between such arbitration rules and the terms and conditions of this paragraph, the terms and conditions of this paragraph shall govern; and provided, further however, that the sole function of the AAA arbitrator shall be to select either Landlord’s or Tenant’s submitted Fair Market Rental Value. If Landlord and Tenant each fail to appoint an arbitrator in
Appears in 1 contract
Samples: Net Lease (Software Spectrum Inc)
Fair Market Rental. The FRL Space Fair Market Rental shall be added 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 Premises under the same terms, covenants foregoing factors and conditions of the Lease applicable to the Premises, except that the Base Rent for the FRL Space shall be mean the Fair Market Rental Value and Tenant shall not be entitled to any tenant improvements or allowances except as provided in 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 effect as of the date beginning of the FRL Space is to be added to Option Period. Not less than sixty (60) days before the Premises. For this purposebeginning of each Option Period, “comparable space” Landlord shall be [***]. Notwithstanding anything to the contrary herein, notify Tenant of Landlord's determination of the Fair Market Rental Value for the Premises for the coming Option Period (the Fair Market Rental Notice). If Tenant disputes the amount of the FRL Space 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 this Paragraph the preceding paragraph, the arbitrators so chosen shall include annual escalations.
meet within ten (i10) If Tenant does not accept Landlord’s 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 Value Rental, they - themselves - shall appoint a third arbitrator who shall be a competent and impartial person with qualifications similar to those required of the FRL Space in Tenant’s Notice of Acceptance, Landlord and Tenant shall for [***] first two arbitrators. If the two arbitrators are unable to agree upon such appointment within five (5) business days after Tenant delivers its Notice the expiration of Acceptance attempt in good faith to agree on the Fair Market Rental Value of the FRL Space. If Landlord and Tenant agree on the Fair Market Rental Value of the FRL Space during 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 immediately execute an amendment not raise any question as to this Lease stating the Base Rent judge's full power and jurisdiction to entertain the application for and make the FRL Space.
(ii) If appointment. Where the issue cannot be resolved by agreement between the two arbitrators selected by Landlord and Tenant are unable to agree on or settled between the Base Rent for parties during the FRL Space within course of arbitration, the [***] day period described issue shall be resolved by the three arbitrators as follows: The arbitrator selected by each of the parties shall state 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 writing his determination of the arbitrator(s) shall be 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 supported by the arbitrator(s)reasons therefore with counterpart copies to each party. The arbitrator(s) must arbitrators shall arrange for a simultaneous exchange of such proposed resolutions. The role of the third arbitrator shall be a licensed real estate broker(s) who has/have been active in to select which of the leasing of commercial properties in the San Jose, California area over the five (5) year period ending on the date of his/her/their appointment as arbitrator(s). Within [***] days after the date either Landlord or Tenant has referred to arbitration the two proposed resolutions most closely approximates his determination of Fair Market Rental Value Rental. The third arbitrator shall have no right to propose -------------------------------------------------------------------------------- 5 a middle ground or any modification of either of the FRL Space (two proposed resolutions. The resolution he chooses as most closely approximating his determination shall constitute the “Arbitration Referral Date”), Landlord and Tenant shall each (i) appoint one arbitrator and notify the other party decision of the arbitrator’s name arbitrators and business address, shall be final and (ii) notify binding upon the other party of their determination of Fair Market Rental Valueparties. If each party timely appoints an 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 two (2) arbitrators shall, within [***] days after same manner as provided for the appointment of the second third arbitrator, agree on and appoint a third arbitrator . The arbitrators shall attempt to decide the issue within ten (who shall be qualified under the same criteria set forth above for qualification of the initial two (210) arbitrators) and provide notice to Landlord and Tenant of the arbitrator’s name and business address. Within [***] 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 three (3) respective parties and of witnesses shall be paid by the respective party engaging such counsel or calling such witnesses. The arbitrators shall decide whether 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 will use Landlord’s or Tenant’s submitted 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 Value and shall notify Landlord and Tenant of their decisionNotice. The decision Within fifteen (15) days after determination of the majority of the three (3) arbitrators shall be binding on Landlord and Tenant. If either Landlord or Tenant fails to appoint an arbitrator within [***] days after the Arbitration Referral DateFair Market Rental, the arbitrator timely appointed by one of them appropriate party shall reach a decision pay the other party the difference between the amount actually paid and notify Landlord and Tenant of the amount that decision within [***] days after should have been paid pursuant to this Paragraph 2. In no case shall the arbitrator’s appointment. The arbitrator’s decision shall Fixed Minimum Monthly Rent be binding on Landlord and Tenant. If each party appoints an arbitrator in a timely mannerless than the minimum monthly rent paid immediately preceding the option period year, but the plus two (2%) arbitrators fail to agree on and appoint a third arbitrator within the required period, the arbitrators shall be dismissed without delay and the issue of Fair Market Rental Value shall be submitted to binding arbitration under the commercial arbitration rules of the American Arbitration Association (“AAA”), provided that in the event of any inconsistency between such arbitration rules and the terms and conditions of this paragraph, the terms and conditions of this paragraph shall govern; and provided, further however, that the sole function of the AAA arbitrator shall be to select either Landlord’s or Tenant’s submitted Fair Market Rental Value. If Landlord and Tenant each fail to appoint an arbitrator inpercent.
Appears in 1 contract
Fair Market Rental. The FRL Space shall be added If it becomes necessary to the Premises under the same terms, covenants and conditions of the Lease applicable to the Premises, except that the Base Rent for the FRL Space shall be determine the Fair Market Rental Value and Tenant shall not be entitled to any tenant improvements or allowances except as provided in 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 date the FRL Space is to be added to the Premises. For Property for any purpose under this purpose, “comparable space” shall be [***]. Notwithstanding anything to the contrary herein, 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 AcceptanceLease, Landlord and Tenant shall for [***] days after Tenant delivers its Notice of Acceptance first attempt in good faith to agree on the such Fair Market Rental Value of the FRL SpaceRental. If Landlord and Tenant are unable to so agree on within a reasonable period of time not to exceed thirty (30) days, then Landlord and Tenant shall have twenty (20) days to attempt to agree upon a single Appraiser to make such determination. If the parties so agree upon a single Appraiser, such Appraiser shall, within forty-five (45) days of being engaged, determine the Fair Market Rental Value as of the FRL Space during relevant date (giving effect to the impact, if any, of inflation from the date of its decision to the relevant date), and such twenty (20) day period, they determination shall immediately execute an amendment to this Lease stating be final and binding upon the Base Rent for the FRL Space.
(ii) parties. If Landlord and Tenant are unable to agree on the Base Rent for the FRL Space upon a single Appraiser within the [***] day period described in the second sentence in the preceding paragraphsuch twenty (20) days, then each party shall have ten (10) days in which to provide the other with the name of a person selected to act as Appraiser on its behalf. Each such Appraiser shall, within [***] forty-five (45) days after of being engaged, determine the expiration Fair Market Rental as of said [***] day periodthe relevant date (giving effect to the impact, if any, of inflation from the date of its decision to the relevant date). If the 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 upon the parties. 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 refer 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 matter Fair Market Rental as of the relevant date (giving effect to arbitration as provided for in this paragraphthe impact, if any, of inflation from the date of its decision to the relevant date). The determination of the arbitrator(s) Appraiser which differs most in terms of dollar amount from the determinations of the other two Appraisers shall be limited to excluded, and the sole issue of whether Landlord’s or Tenant’s submitted Fair Market Rental Value is shall be the closest 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 actual 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 Value as determined by of the arbitrator(s). The arbitrator(s) must be a licensed real estate broker(s) who has/have been active in relevant date (giving effect to the leasing impact, if any, of commercial properties in the San Jose, California area over the five (5) year period ending on inflation from the date of his/her/their appointment as arbitrator(s)its decision to the relevant date) and such determination shall be final and binding upon the parties. Within [***] days after the date either Landlord or Tenant has referred to arbitration the determination of Fair Market Rental Value of the FRL Space (the “Arbitration Referral Date”), Landlord and Tenant shall each (i) appoint one arbitrator pay the fees and notify the other party expenses of the arbitrator’s name Appraiser appointed by it and business address, and (iieach shall pay one-half ( 1⁄2) notify the other party of their determination of Fair Market Rental Value. If each party timely appoints an arbitrator, the two (2) arbitrators shall, within [***] days after the appointment of the second arbitrator, agree on fees 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 provide notice to Landlord and Tenant of the arbitrator’s name and business address. Within [***] days after the appointment expenses of the third arbitratorAppraiser. For purposes of determining the Fair Market Rental, the three (3) arbitrators Property shall decide whether be valued at its highest and best use which shall be presumed to be as a fully-permitted facility operated in accordance with the parties will use Landlord’s provisions of this Lease. In addition, the following specific matters shall be factored in or Tenant’s submitted out, as appropriate, in determining the Fair Market Rental Value and shall notify Landlord and Tenant of their decision. The decision of the majority of the three (3) arbitrators shall be binding on Landlord and Tenant. If either Landlord or Tenant fails to appoint an arbitrator within [***] days after the Arbitration Referral Date, the arbitrator timely appointed by one of them shall reach a decision and notify Landlord and Tenant of that decision within [***] days after the arbitrator’s appointment. The arbitrator’s decision shall be binding on Landlord and Tenant. If each party appoints an arbitrator in a timely manner, but the two (2) arbitrators fail to agree on and appoint a third arbitrator within the required period, the arbitrators shall be dismissed without delay and the issue of Fair Market Rental Value shall be submitted to binding arbitration under the commercial arbitration rules of the American Arbitration Association (“AAA”), provided that in the event of any inconsistency between such arbitration rules and the terms and conditions of this paragraph, the terms and conditions of this paragraph shall govern; and provided, further however, that the sole function of the AAA arbitrator shall be to select either Landlord’s or Tenant’s submitted Fair Market Rental Value. If Landlord and Tenant each fail to appoint an arbitrator inRental:
Appears in 1 contract