Measurement of the Premises. Landlord and Tenant agree that the Premises Rentable Area identified in Section 1.1 is an estimate only and that, although the Annual Fixed Rent and Tenant's Percentage have been determined by reference to such square footage (regardless of the possibility that the actual measurement of the Premises may be more or less than the number identified, irrespective of measurement method used), the Annual Fixed Rent and Tenant's Percentage shall not be changed except as expressly provided in this Section 2.3. Either party hereto may, not later than ninety (90) days after the Commencement Date, request that an exact measurement of the Premises be made in accordance with the measurement method recommended by Building Owners and Managers Association. Such measurement shall be made by an architect or engineer designated by Landlord at the cost and expense of the requesting party. If the rentable area of the Premises, as so measured, is more than one hundred one percent (101%) or less than ninety-nine percent (99%) of the Premises Rentable Area as set forth in Section 1.1: (i) the definition of Premises Rentable Area set forth in Section 1.1 shall be deemed amended in accordance with such measurement; (ii) Annual Fixed Rent shall, retroactively to the Rent Commencement Date, be recomputed by multiplying the Annual Fixed Rent as set forth in Section 1.1 by a fraction (the "FRACTION"), the numerator of which shall be the rentable area as so measured and the denominator of which shall be the Premises Rentable Area set forth in Section 1.1; and (iii) Tenant's Percentage shall, retroactively to the Commencement Date, be recomputed to be the percentage determined by multiplying Tenant's Percentage as set forth in Section 1.1 by the Fraction. Any payment due to Landlord as the result of such adjustment shall be paid within thirty (30) days after notice to Tenant of such computation. Any payment due to Tenant as a result of such adjustment shall be credited against installments of Annual Fixed Rent thereafter becoming due. In the event of any adjustment pursuant to this Section 2.3, Landlord and Tenant shall promptly execute a written statement setting forth the recomputed Premise Rentable Area, Annual Fixed Rent, and Tenant's Percentage, but the failure by either party to execute such a statement shall have no effect on the validity of such recomputation. (i) neither Landlord nor Tenant requests any adjustment as herein provided within the time limit provided, or (ii) such adjustment is requested, but the rentable area is within the two percent range set forth above, Annual Fixed Rent, Tenant's Percentage, and Premises Rentable Area shall remain as set forth in Section 1.1, and neither Landlord nor Tenant shall have any right to any adjustment.
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Samples: Lease (Perficient Inc)
Measurement of the Premises. Landlord and Tenant agree that the Premises Rentable Area identified in Section 1.1 is an estimate only and that, although the Annual Fixed Rent and Tenant's Percentage have been determined by reference to such square footage (regardless of the possibility that the actual measurement of the Premises may be more or less than the number identified, irrespective of measurement method used), the Annual Fixed Rent and Tenant's Percentage shall not be changed except as expressly provided in this Section 2.3. Either party hereto may, not later than ninety (90i) days after the Commencement Date, request that an exact measurement of the Premises be made in accordance with the measurement method recommended by Building Owners and Managers Association. Such measurement shall be made by an architect or engineer designated by Landlord at the cost and expense of the requesting party. If the The total rentable area of the Premises, as so measuredupon completion of the Base Building Work, is more than one hundred one percent based on the Construction Documents listed on Exhibit 10.03(a) (101%) or less than ninety-nine percent (99%) of the Premises Rentable Area “Base Building Construction Plans”). The parties agree that, except as set forth in this Section 1.1: (i) 2.01(e), the definition of Premises Rentable Area rentable area figures set forth in Section 1.1 shall be deemed amended in accordance with such measurement; (ii) Annual Fixed Rent shallthis Lease are conclusive unless the Base Building Work, retroactively as constructed, does not substantially conform to the Rent Commencement Date, Base Building Construction Plans (as they may be recomputed by multiplying the Annual Fixed Rent as set forth in Section 1.1 by a fraction (the "FRACTION"amended pursuant to this Lease), the numerator of which shall be the rentable area as so measured and the denominator of which shall be the Premises Rentable Area set forth in Section 1.1; and (iii) Tenant's Percentage shall, retroactively to the Commencement Date, be recomputed to be the percentage determined by multiplying Tenant's Percentage as set forth in Section 1.1 by the Fraction. Any payment due to Landlord as the result of such adjustment shall be paid within thirty (30) days after notice to Tenant of such computation. Any payment due to Tenant as a result of such adjustment shall be credited against installments of Annual Fixed Rent thereafter becoming due. In the event that the Base Building Work, as constructed, does not substantially conform to the Base Building Construction Plans, Landlord’s architect shall calculate the amount by which the rentable area of the Premises and the Building have changed in accordance with the Measurement Standard and certify the final rentable square footage to Landlord and Tenant. Such certification shall include data and calculations supporting how such measurement was arrived at (which may include as-built plans and specs) so that Tenant can have such measurement checked by its architect should it choose to do so. Tenant shall have the right to review such certification and other listed materials and, if Tenant elects to dispute the same, shall notify Landlord of any adjustment pursuant to dispute within fifteen (15) business days of Tenant’s receipt of such certificate. Any such dispute shall be resolved in accordance with Section 19.03. If the rentable areas change on account of the provisions of this Section 2.3Section, Landlord and Tenant shall promptly execute a written statement setting forth then enter into an amendment to this Lease confirming the recomputed Premise Rentable Arearentable areas, Annual Fixed as modified, as well as proportional changes in the Base Rent, Tenant’s Pro Rata Share and Tenant's Percentage, but any other charges or rights under this Lease that are calculated based upon square footage shall be adjusted based upon the failure by either party to execute such a statement shall have no effect on the validity of such recomputationrentable square footage in question.
(i) neither Landlord nor Tenant requests any adjustment as herein provided within the time limit provided, or (ii) such adjustment is requestedIn addition, prior to the commencement of construction of the Finish Work in each Phase, but following Tenant’s completion of Construction Documents for the Finish Work in the First Floor Space and each successive Phase, Landlord’s architect shall remeasure the rentable area is within of the two percent range set forth above, Annual Fixed Rent, Tenant's Percentage, applicable Phase in accordance with the ANSI/BOMA Z65.1-1996 method of measurement for useable space in office buildings and consistent with the method used to determine the initial measurement of the Premises Rentable Area shall remain as set forth in Section 1.1on Exhibit 2.01(e) attached (collectively, the “Measurement Standard”) and neither certify the final rentable square footage to Landlord nor and Tenant. Such certification shall include data and calculations supporting how such measurement was arrived at so that Tenant can have such measurement checked by its architect should it choose to do so. Tenant shall have any the right to review such certification and other listed materials and, if Tenant elects to dispute the same, shall notify Landlord of such dispute within fifteen (15) business days of Tenant’s receipt of such certificate. Any such dispute shall be resolved in accordance with Section 19.03. In no event shall the First Floor Space be less than 10,000 rentable square feet, the Office Space be more than 20,000 rentable square feet, or the aggregate rentable square feet of the Premises be less than 112,516 rentable square feet on account of the re-measurements described in this paragraph. Following such remeasurement, Landlord shall prepare and Tenant shall enter into an amendment to this Lease memorializing any adjustmentchange in the rentable square footage of any Phase on account of such remeasurement and adjusting the Base Rent, Letter of Credit increase, Finish Work Allowance, and Additional Allowance (if applicable) for the applicable Phase.
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Measurement of the Premises. Landlord and Tenant agree that the Premises Rentable Area identified in Section 1.1 is an estimate only and that, although the Annual Fixed Rent and Tenant's Percentage have been determined by reference to such square footage (regardless of the possibility that the actual measurement of the Premises may be more or less than the number identified, irrespective of measurement method used), the Annual Fixed Rent and Tenant's Percentage shall not be changed except as expressly provided in this Section 2.3. Either party hereto may, not later than ninety (90) days after the Commencement Date, request that an exact measurement of the Premises be made in accordance with the measurement method recommended by Building Owners and Managers Association. Such measurement shall be made by an architect or engineer designated by Landlord at the cost and expense of the requesting party. If the rentable area of the Premises, as so measured, is more than one hundred one percent (101%) or less than ninety-nine percent (99%) of the Premises Rentable Area as set forth in Section 1.1: (i) the definition of Premises Rentable Area set forth in Section 1.1 shall be deemed amended in accordance with such measurement; (ii) Annual Fixed Rent shall, retroactively to the Rent Commencement Date, be recomputed by multiplying the Annual Fixed Rent as set forth in Section 1.1 by a fraction (the "FRACTION"), the numerator of which shall be the rentable area as so measured and the denominator of which shall be the Premises Rentable Area set forth in Section 1.1; and (iii) Tenant's Percentage shall, retroactively to the Commencement Date, be recomputed to be the percentage determined by multiplying Tenant's Percentage as set forth in Section 1.1 by the Fraction. Any payment due to Landlord as the result of such adjustment shall be paid within Within thirty (30) days after notice the date on which Landlord's Base Building Work is substantially complete for Tenant Improvements construction, but in no event later than the Term Commencement Date, Landlord shall cause the Premises to Tenant be measured by a mutually acceptable and professionally qualified architect (other than Landlord's or Tenants architect) licensed in the state of such computationCalifornia. Any payment due to Tenant as a result The rentable square feet of such adjustment the Premises shall be credited against installments of Annual Fixed Rent thereafter becoming duebased on a dripline measurement. In the event of any adjustment pursuant to this Section 2.3, Landlord and Tenant shall promptly execute a written statement setting forth the recomputed Premise Rentable Area, Annual Fixed Rent, and Tenant's Percentage, but the failure by either party to execute such a statement shall have no effect on the validity of such recomputation.
(i) neither Landlord nor Tenant requests any adjustment as herein provided within the time limit provided, or (ii) such adjustment is requested, but If the rentable area square footage of the Premises is within other than the two percent range set forth abovestated rentable feet of the Premises in the Basic Lease Information, Annual Fixed Rent, Tenant's Percentage, and Premises Rentable Area the Base Rent shall remain correspondingly be adjusted at the same rate per square foot as set forth in Section 1.1the Basic Lease Information. Any modification or adjustment to the rentable square feet of the Premises and any other terms of the Lease must be made and agreed to in writing by the parties within fifteen (15) days after Landlord's receipt of architect's measurement. Failure on the part of the parties to agree within fifteen (15) days or any dispute between Landlord and Tenant pertaining this Paragraph 38.l. shall be resolved by submitting to binding arbitration, conducted and neither Landlord nor Tenant shall have any right determined in San Diego County according to any adjustmentthe prevailing rules of the American Arbitration Association for arbitration of commercial disputes. 39. JURY TRIAL WAIVER EACH PARTY HERETO (WHICH INCLUDES ANY ASSIGNEE, SUCCESSOR HEIR OR PERSONAL REPRESENTATIVE OF A PARTY) SHALL NOT SEEK A JURY TRIAL, HEREBY WAIVES TRIAL BY JURY, AND HEREBY FURTHER WAIVES ANY OBJECTION TO VENUE IN THE COUNTY IN WHICH THE BUILDING IS LOCATED, AND AGREES AND CONSENTS TO PERSONAL JURISDICTION OF THE COURTS OF THE STATE IN WHICH THE PROPERTY IS LOCATED, IN ANY ACTION OR PROCEEDING OR COUNTERCLAIM BROUGHT BY ANY PARTY HERETO AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING OUT OF OR IN ANY WAY CONNECTED WITH THIS LEASE, THE RELATIONSHIP OF LANDLORD AND TENANT, TENANT'S USE OR OCCUPANCY OF THE PREMISES, OR ANY CLAIM OF INJURY OR DAMAGE OR THE ENFORCEMENT OF ANY REMEDY UNDER ANY STATUTE, EMERGENCY OR OTHERWISE, WHETHER ANY OF THE FOREGOING IS BASED ON THIS LEASE OR ON TORT LAW. EACH PARTY REPRESENTS THAT IT HAS HAD THE OPPORTUNITY TO CONSULT WITH LEGAL COUNSEL CONCERNING THE EFFECT OF THIS PARAGRAPH 39. THE PROVISIONS OF THE PARAGRAPH 39 SHALL SURVIVE THE EXPIRATION OR EARLIER TERMINATION OF THIS LEASE.
Appears in 1 contract
Samples: Sub Sublease (Divx Inc)
Measurement of the Premises. Landlord On or before the twentieth day immediately following the date that this Lease Amendment No. 1 is fully executed, you may measure the Expansion Premises. You further acknowledge that you previously had the right to measure the Building and Tenant agree the Original Premises and that you have accepted the measurements specified in this Lease as to the Building and as to the Original Premises as conclusive. All calculations of usable area under this Lease shall be based upon the American National Standard ANZI Z65.1 - 1980 (Reaffirmed 1989) (Approved June 21, 1989 by the American National Standards Institute, Inc.). Rentable Area identified in Section 1.1 is an estimate only and that, although the Annual Fixed Rent and Tenant's Percentage have been determined by reference to such square footage (regardless is the usable square footage plus a common area factor of 15% for multi-tenant floors and 12% for single tenant floors. If you do not provide Landlord with written notice disputing the possibility that the actual measurement of the Expansion Premises may within such twenty day period, time being of the essence, then the Expansion Premises shall be more or less than conclusively deemed to measure the number identified, irrespective rentable square footage specified in the definition of measurement method used), the Annual Fixed Rent and Tenant's Percentage shall not be changed except as expressly provided in this Section 2.3Expansion Premises set forth above. Either party hereto may, not later than ninety (90) days after If Landlord receives written notice from you within such twenty day period disputing the Commencement Date, request that an exact measurement of the Expansion Premises be made in accordance and if Landlord disagrees with the measurement method recommended by Building Owners your determination, then Landlord's architect and Managers Association. Such measurement your architect shall mutually select a third architect whose sole purpose shall be made by an architect to state whose measurement (Landlord's or engineer designated by yours in which event Landlord at shall have the cost and expense right to claim that the rentable square footage of the requesting partyExpansion Premises is less than or greater than the amount specified in the definition of Expansion Premises) is most correct and the determination of the third architect shall be conclusive and binding upon the parties. If Once the third architect makes a determination as to which measurement is most correct, the rental rates during the primary term for the Expansion Premises will be adjusted based on a fraction, the numerator of which is the rentable area square footage of whichever of Landlord's or your measurement the third architect determined to be most correct and the denominator of which is the rentable square footage set forth in the definition of Expansion Premises. The cost of the Premises, as so measured, is more than one hundred one percent third architect shall be paid for equally by the parties. Tenant's Initials RDM Landlord's Initials ES/JA ------- -------
Section 3.01 (101%) or less than ninety-nine percent (99%a) of the Premises Rentable Area as Lease is deleted in its entirety and the following is substituted in its place:
(a) You agree to pay to Landlord monthly base rent for the Original Premises, in advance, without demand, deduction or set forth in Section 1.1: (i) off, for the definition of Premises Rentable Area set forth in Section 1.1 shall be deemed amended in accordance with such measurement; (ii) Annual Fixed Rent shall, retroactively to entire primary term hereof beginning on the Rent Commencement Date, be recomputed by multiplying at the Annual Fixed initial rate of $32,896.00 a month, provided, however, that if the Rent as Commencement Date is a day other than the first day of a calendar month, then for the initial partial month, you agree to pay a per diem base rental of $1,096.52 a day for each day of the partial month beginning on the Rent Commencement Date and ending on the last day of the partial month in which the Rent Commencement Date falls. You agree to pay to Landlord monthly base rent for the Expansion Premises, in advance, without demand, deduction or set forth in Section 1.1 by a fraction (off, for the "FRACTION"), entire primary term hereof beginning on the numerator of which shall be the rentable area as so measured and the denominator of which shall be the Expansion Premises Rentable Area set forth in Section 1.1; and (iii) Tenant's Percentage shall, retroactively to the Rent Commencement Date, be recomputed at the initial rate of $21,878.96 a month, provided, however, that if the Expansion Premises Rent Commencement Date is a day other than the first day of a calendar month, then for the initial partial month, you agree to pay a per diem base rental of $729.30 a day for each day of the partial month beginning on the Expansion Premises Rent Commencement Date and ending on the last day of the partial month in which the Expansion Premises Rent Commencement Date falls. The monthly base rent amount payable by you during the primary term for each of the Original Premises as well as for the Expansion Premises will increase on each Adjustment Date beginning with the Adjustment Date corresponding to the first day of the second Lease Year, the annual increase to be computed in the percentage determined by multiplying Tenant's Percentage as set forth manner prescribed in Section 1.1 by the Fraction. Any payment due to Landlord as the result of such adjustment shall be paid within thirty (30) days after notice to Tenant of such computation. Any payment due to Tenant as a result of such adjustment shall be credited against installments of Annual Fixed Rent thereafter becoming due. In the event of any adjustment pursuant to this Section 2.3, Landlord and Tenant shall promptly execute a written statement setting forth the recomputed Premise Rentable Area, Annual Fixed Rent, and Tenant's Percentage, but the failure by either party to execute such a statement shall have no effect on the validity of such recomputation3.03.
(i) neither Landlord nor Tenant requests any adjustment as herein provided within the time limit provided, or (ii) such adjustment is requested, but the rentable area is within the two percent range set forth above, Annual Fixed Rent, Tenant's Percentage, and Premises Rentable Area shall remain as set forth in Section 1.1, and neither Landlord nor Tenant shall have any right to any adjustment.
Appears in 1 contract
Measurement of the Premises. Landlord and Tenant agree that the Premises Rentable Area identified in Section 1.1 is an estimate recited for Landlord’s administrative purposes only and that, although the Annual Fixed Rent and Tenant's Percentage have has been determined by reference to such square footage (regardless of the possibility that the actual measurement of the Premises may be more or less than the number identified, irrespective of measurement method used), the Annual Fixed Rent and Tenant's ’s Percentage shall not be changed except as expressly provided in this Section 2.32.4. Either party hereto may, not later than ninety thirty (9030) days after the Commencement DateDate of this Lease, request that an exact measurement of the Premises be made in accordance with the measurement method recommended by Building Owners and Managers Association. Such measurement shall be made by an architect or engineer designated by Landlord at the cost and expense of the requesting party. If the rentable area of the Premises, as so measured, is more than one hundred one percent (101%) or less than ninety-nine percent (99%) of the Premises Rentable Area as set forth in Section 1.1: (i) the definition of Premises Rentable Area set forth in Section 1.1 shall be deemed amended in accordance with such measurement; (ii) Annual Fixed Rent shall, retroactively to the Rent Commencement Date, be recomputed by multiplying the Annual Fixed Rent as set forth in Section 1.1 by a fraction (the "FRACTION"“Fraction”), the numerator of which shall be the rentable area as so measured and the denominator of which shall be the Premises Rentable Area set forth in Section 1.1; and (iii) Tenant's ’s Percentage shall, retroactively to the Commencement Date, shall be recomputed to be the percentage determined by multiplying Tenant's ’s Percentage as set forth in Section 1.1 by the Fraction. Any payment due to Landlord as the result of such adjustment shall be paid within thirty fifteen (3015) days after notice to Tenant of such computation. Any payment due to Tenant as a result of such adjustment shall be credited against installments of Annual Fixed Rent thereafter becoming due. In the event of any adjustment pursuant to this Section 2.32.4, Landlord and Tenant shall promptly execute a written statement setting forth the recomputed Premise Rentable Area, Annual Fixed Rent, and Tenant's ’s Percentage, but the failure by either party to execute such a statement shall have no effect on the validity of such recomputation.
. If (i) neither Landlord nor Tenant requests any adjustment as herein provided within the time limit provided, or (ii) such adjustment is requested, but the rentable area is within the two (2%) percent range set forth above, Annual Fixed Rent, Tenant's ’ s Percentage, and Premises Rentable Area shall remain as set forth in Section 1.1, and neither Landlord nor Tenant shall have any right to any adjustment.
Appears in 1 contract
Samples: Lease (Cuisine Solutions Inc)
Measurement of the Premises. Landlord and Tenant agree that the Premises Rentable Area identified in Section 1.1 is an estimate only and that, although the Annual Fixed Rent and Tenant's Percentage have been determined by reference to such square footage (regardless of the possibility that the actual measurement of the Premises may be more or less than the number identified, irrespective of measurement method used), the Annual Fixed Rent and Tenant's Percentage shall not be changed except as expressly provided in this Section 2.3. Either party hereto may, not later than ninety ten (9010) days after the Commencement Date, request that an exact measurement of the Premises be made in accordance with the measurement method recommended Standard Method of Measuring Floor Area in Office Buildings as adopted by the Building Owners and Managers AssociationAssociation International (ANSI/BOMA Z65.1-2017). Such measurement shall be made by an a licensed architect or engineer designated by Landlord at the cost and expense of the requesting party. If the rentable area of the Premises, as so measured, is more than one hundred one percent (101%) or less than ninety-nine percent (99%) of the Premises Rentable Area as set forth in Section 1.1: (i) the definition of Premises Rentable Area set forth in Section 1.1 shall be deemed amended in accordance with such measurement; (ii) Annual Fixed Rent shall, retroactively to the Rent Commencement Date, be recomputed by multiplying the Annual Fixed Rent as set forth in Section 1.1 by a fraction (the "FRACTION"“Fraction”), the numerator of which shall be the rentable area as so measured and the denominator of which shall be the Premises Rentable Area set forth in Section 1.1; and (iii) Tenant's ’s Percentage shall, retroactively to the Commencement Date, be recomputed to be the percentage determined by multiplying Tenant's ’s Percentage as set forth in Section 1.1 by the Fraction, and (iv) if applicable, the Allowance shall, retroactively to the Commencement Date, be adjusted by multiplying the rentable area as so measured by the Allowance per rentable square foot as set forth in Article 3 below. Any payment due to Landlord as the result of such adjustment shall be paid within thirty (30) days after notice to Tenant of such computation. Any payment due to Tenant as a result of such adjustment shall be credited against installments of Annual Fixed Rent thereafter becoming due. In the event of any adjustment pursuant to this Section 2.3, Landlord and Tenant shall promptly execute a written statement setting forth the recomputed Premise Rentable Area, Annual Fixed Rent, and Tenant's Percentage, but the failure by either party to execute such a statement shall have no effect on the validity of such recomputation.
(i) neither Landlord nor Tenant requests any adjustment as herein provided within the time limit provided, or (ii) such adjustment is requested, but the rentable area is within the two percent range set forth above, Annual Fixed Rent, Tenant's Percentage, and Premises Rentable Area shall remain as set forth in Section 1.1, and neither Landlord nor Tenant shall have any right to any adjustment.thirty
Appears in 1 contract
