Extended Term Rent. (a) The Basic Rent for each Extended Term shall be the Fair Market Rental Value of the Premises as of the commencement of the Extended Term in question (including without limitation such inflation indicators or periodic increases as may then be customary in the market), determined without regard to improvements made to the Premises by Tenant or (for the Second Extended Term) to Tenant’s right to further extend, as agreed by the parties. For purposes hereof, the term “Fair Market Rental Value” shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the first day of the Extended Term (the “Determination Date”). If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within two (2) months before the applicable Determination Date, then Landlord and Tenant each shall give notice (the “Determination Notice”) to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (b) below, either party may apply to the then president of the Real Estate Bar Association of Massachusetts or any successor thereto for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. The fair market rental value shall be determined by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, except that there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a commercial retail real estate broker or appraiser in the downtown Boston/financial district area. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (a), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (a) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Lease.
Appears in 2 contracts
Sources: Lease (Converted Organics Inc.), Lease (Converted Organics Inc.)
Extended Term Rent. (a) The Basic In the event Lessee exercises any Option to Extend set forth herein, all the terms and conditions of this Lease shall continue to apply except that Lessee shall no longer have the future right to exercise the Option to Extend in question and the Base Rent for each payable by Lessee during the Extended Term shall be determined in the following manner. If Lessee exercises Lessee’s Option to Extend the Building 9 Lease at the same time as Lessee exercises Lessee’s Option to Extend hereunder, then the Base Rent due hereunder during such Extended Term shall be equal, on a per square foot basis, to the base rent due under the Building 9 Lease. If Lessee exercises Lessee’s Option to Extend hereunder, but does not exercise Lessee’s Option to Extend the Building 9 Lease, then the Base Rent due hereunder during such Extended Term shall be equal to the greater of (i) ninety-five percent (95%) of Fair Market Rental Value Rent (defined below), as determined under subparagraph (c) below, or (ii) the monthly Base Rent paid by Lessee during the last year of the Premises as of initial Lease Term or the commencement of the Extended Term in question (including without limitation such inflation indicators or periodic increases as may then be customary in the market), determined without regard to improvements made to the Premises by Tenant or (for the Second first Extended Term) to Tenant’s right to further extend, as agreed by the partiesrelevant. For purposes hereof, the term “Fair Market Rental ValueRent” shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of effective rate being charged (including periodic adjustments thereto as applicable during the Premises as of the first day period of the Extended Term (the “Determination Date”). If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within two (2) months before the applicable Determination DateTerm, then Landlord and Tenant each shall give notice (the “Determination Notice”) to the other setting forth their respective determinations extent such adjustments are determined to be part of the Fair Market Rental ValueRent), and, subject for space comparable to the provisions space and level of paragraph (b) belowtenant improvements in Building 9 in similar buildings in the vicinity, either party may apply i.e. of a similar age and quality as Building 9, considering any recent renovations or modernization, and floor plate size or, if such comparable space is not available, adjustments shall be made in the determination of Fair Market Rent to reflect the then president age and quality of Building 9 and Premises as contrasted to other buildings used for comparison purposes, with similar amenities, taking into consideration: size, location, floor level, leasehold improvements or allowances provided or to be provided, term of the Real Estate Bar Association lease, extent of Massachusetts services to be provided, the time that the particular rate under consideration became or any successor thereto for the designation of an arbitrator satisfactory is to both parties to render a final determination of the Fair Market Rental Value. The fair market rental value shall be determined by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, except that there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a commercial retail real estate broker or appraiser in the downtown Boston/financial district area. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Noticebecome effective, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (a), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (a) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power relevant terms or conditions applicable to add to, modify, or change any of the provisions of this Leasetenants.
Appears in 2 contracts
Sources: Triple Net Space Lease (Biotech Spinco, Inc.), Triple Net Space Lease (PDL Biopharma, Inc.)
Extended Term Rent. (a) The Basic Rent for each Extended Term shall be the Fair Market Rental Value of the Premises as of the commencement of the Extended Term in question (including without limitation such inflation indicators or periodic increases as may then be customary in the market), determined without regard to improvements made to the Premises by Tenant or (for the Second Extended Term) to Tenant’s right to further extend, as agreed by the parties. For purposes hereof, the term “Fair Market Rental Value” shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the first day of the Extended Term (the “Determination Date”). If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within two (2) months before the applicable Determination Date, then Landlord and Tenant each shall give notice (the “Determination Notice”) to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (b) below, either party may apply to the then president of the Real Estate Bar Association of Massachusetts or any successor thereto for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. The fair market rental value shall be determined by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, except that there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a commercial retail real estate broker or appraiser in the downtown Boston/financial district area. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within Within thirty (30) days after having been appointedLessor’s receipt of Lessee’s Option Exercise Notice, choose one Lessor shall deliver to Lessee a written proposal setting forth the monthly base rent for the upcoming Extended Term. If Lessee within fifteen (15) business days after receipt of such proposal agrees to such proposal, the determinations amount of monthly base rent set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator such proposal shall be binding on Lessor and Lessee. Should Lessee object in writing to Lessor’s proposal within fifteen (15) business days after receipt thereof, or fail to object in writing to such proposal within said fifteen (15) business days, then during the thirty (30) day period following Lessee’s objection to Lessor’s proposal, or in the case of Lessee’s failure to object then during the thirty (30) day period following expiration of such initial fifteen (15) business day period, Lessor and Lessee shall negotiate in good faith for the purpose of reaching an agreement regarding the amount of the monthly base rent during the Extended Term. In the event the parties fail to agree in a written instrument signed by both parties upon Landlord the amount of the monthly base rent for the Extended Term within such thirty (30) day period, the monthly base rent for the Extended Term shall be determined in the manner hereafter set forth. If the parties have not reached agreement on the amount of monthly rent for the Extended Term by the end of the thirty (30) day period of good faith negotiation referred to in the immediately preceding paragraph, then the fair market monthly rent for the Premises shall be determined as follows. Within five (5) days after such thirty (30) day period, Lessor and TenantLessee each shall appoint a broker who has not worked for such party within the five (5) previous years. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration broker appointed under this paragraph Section 3.02(b) shall be a California licensed real estate broker having at least 5 years experience representing both landlords and tenants in leasing commercial properties within a ten (a10) mile radius of the Premises. Such brokers so appointed shall each determine the fair market monthly base rent for the Premises during the entire Extended Term (which may entail an initial monthly base rent amount that is increased annually during the Extended Term), taking into account the value of the Premises including the value of any improvements installed at the Premises that Lessor has a right to keep at the end of the Lease (assuming that, as to any improvements that Lessor has a right to elect to keep but has not yet exercised such right, Lessor will elect to keep the same), and prevailing comparable rentals within a two (2) mile radius of the parties Premises considering all relevant factors including without limitation size of the premises, lease term, financial strength of the tenant, tenant inducements, tenant improvement allowances, free rent, escalation of rent during the term, operating costs, brokerage commissions and other landlord concessions for renewal of leases. Such brokers shall, within twenty (20) business days after their appointment, complete their determinations and submit their written reports thereof to Lessor and Lessee. Said brokers, within ten (10) days after submission of the last report, shall share equally all appoint a third broker meeting the broker qualifications set forth above and who is not currently representing either Lessor or Lessee. Such third broker, within twenty (20) business days after his appointment, shall choose one or the other expenses and fees of any such arbitrationthe first two determinations as the applicable fair market monthly base rent during the Extended Term. The If either Lessor or Lessee fails to appoint a broker, or if a broker appointed by either of them fails, after his appointment, to submit a report of his determination rendered within the required period in accordance with the provisions of this paragraph (a) foregoing, the determination in the report submitted by the broker properly appointed and timely submitting his report shall be final controlling. If the two brokers appointed by Lessor and binding Lessee are unable to agree upon a third broker within the required period in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this Lease.accordance
Appears in 1 contract
Sources: Industrial Lease (ViewRay, Inc.)
Extended Term Rent. (a) The Basic Rent for each Extended Term shall be the Fair Market Rental Value of the Premises as As of the commencement of the Extended Term in question Term, the monthly Base Rent and the method of rental adjustment (including without limitation such inflation indicators or periodic increases as may then be customary in the market), determined without regard to improvements made to timing of adjustments and the Premises by Tenant or (basis for calculating the Second Extended Termadjustments) to Tenant’s right to further extend, as agreed by the parties. For purposes hereof, the term “Fair Market Rental Value” shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the first day of for the Extended Term (the “Determination Date”). If shall be subject to negotiation between Landlord and Tenant shall Tenant, with an effort to determine a fair market rental for the Premises, as improved, and a method of rental adjustment consistent with rental adjustment practices for comparable lease space in the vicinity of the Premises. In the event the parties fail to agree upon the Fair Market Rental Value within two (2) months before amount of the applicable Determination Datemonthly Base Rent and the method of rental adjustment for the Extended Term prior to commencement thereof, then the monthly Base Rent and the method of rental adjustment for the Extended Term shall be determined by appraisal in the manner hereafter set forth; provided, however, that in no event shall the monthly Base Rent for the Extended Term be less than the monthly Base Rent payable hereunder for the last full month of the Lease term immediately preceding commencement of the Extended Term. In the event it becomes necessary under this subparagraph to determine the fair market monthly Base Rent and the method of rental adjustment of the Premises by appraisal, Landlord and Tenant each shall give notice (the “Determination Notice”) to the other setting forth their respective determinations appoint a real estate appraiser who shall be a member of the Fair Market Rental ValueAmerican Institute of Real Estate Appraisers ("AIREA") and such appraisers shall each determine the fair market monthly Base Rent for the Premises, and, subject to and the provisions method of paragraph (b) below, either party may apply to rental adjustment taking into account the then president value of the Real Estate Bar Association of Massachusetts or any successor thereto for Premises and the designation of an arbitrator satisfactory amenities provided by the Outside Areas, the Common Areas and the Building and prevailing comparable rentals and rental adjustment practices in the areas. Such appraisers shall, within twenty (20) business days after their appointment, complete their appraisals and submit their appraisal reports to both parties to render a final determination Landlord and Tenant. If the fair market monthly Base Rent of the Fair Market Rental ValuePremises established in the two (2) appraisals varies by five percent (5%) or less of the higher rental, the average of the two shall be controlling. If said fair market monthly Base Rent varies by more than five percent (5%) of the higher rental, said appraisers, within ten (10) days after submission of the last appraisal, shall appoint a third appraiser who shall be a member of the AIREA and who shall also be experienced in the appraisal of rental values and adjustment practices for commercial properties in the vicinity of the Premises. Such third appraiser shall, within twenty (20) business days after his appointment, determine by appraisal the fair market monthly Base Rent of the Premises, taking into account the same factors referred to above, and submit his appraisal report to Landlord and Tenant. The fair market rental value monthly Base Rent determined by the third appraiser for the Premises shall be controlling, unless it is less than that set forth in the lower appraisal previously obtained, in which case the value set forth in said lower appraisal shall be controlling, or unless it is greater than that set forth in the higher appraisal previously obtained, in which case the rental set forth in said higher appraisal shall be controlling. The method of adjusting rental periodically, including the manner and timing of such adjustments, shall be as determined by arbitration the initial two appraisers, if they agree on a single method; otherwise, it shall be as determined by the third appraiser. If either Landlord or Tenant fails to appoint an appraiser, or if an appraiser appointed by either of them fails, after his appointment, to submit his appraisal within the required period in accordance with the commercial arbitration rules of foregoing, the American Arbitration Association, except that there appraisal submitted by the appraiser properly appointed and timely submitting his appraisal shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a commercial retail real estate broker or appraiser in controlling. If the downtown Boston/financial district area. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice two appraisers appointed by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (a), and Tenant are unable to agree upon a third appraiser within the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered required period in accordance with the provisions of this paragraph (a) foregoing, application shall be final and binding in fixing made within twenty (20) days thereafter by either Landlord or Tenant to the Fair Market Rental ValueAIREA, which shall appoint a member of said institute willing to serve as appraiser. The arbitrator cost of all appraisals under this subparagraph shall not have the power to add to, modify, or change any of the provisions of this Leasebe borne equally by Landlord and Tenant.
Appears in 1 contract
Extended Term Rent. (a) The Basic Rent for each Extended Term shall be the Fair Market Rental Value of the Premises as As of the commencement of the Extended Term in question (including without limitation such inflation indicators or periodic increases as may then be customary in the market), determined without regard to improvements made to the Premises by Tenant or (for the Second Extended Term) to Tenant’s right to further extend, as agreed by the parties. For purposes hereof, the term “Fair Market Rental Value” shall mean the annual fixed monthly rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the first day of for the Extended Term (shall be subject to negotiation between Lessor and Lessee, with an effort to determine a fair market rental for the “Determination Date”)Premises, as improved. If Landlord and Tenant shall In the event the parties fail to agree upon the Fair Market Rental Value amount of the monthly rent for the Extended Term prior to commencement thereof, the monthly Rent for the Extended Term shall be determined by appraisal in the manner hereafter set forth; provided, however, that in no event shall the monthly rent for the Extended Term be less than the monthly Rent payable hereunder for the last full month of the Lease term immediately preceding commencement of the Extended Term. In the event it becomes necessary under this paragraph to determine the fair market monthly rent and the method of rental adjustment of the Premises by appraisal, Lessor and Lessee each shall appoint a real estate appraiser who shall be a member of the American Institute of Real Estate Appraisers ("AIREA") and such appraisers shall each determine the fair market monthly rent for the Premises, and the method of rental adjustment taking into account the value of the Premises and the amenities provided by the Outside Areas, the Common Areas and the Building and prevailing comparable rentals and rental adjustment practices in the area. Such appraisers shall, within twenty (20) business days after their appointment, complete their appraisals and submit their appraisal reports to Lessor and Lessee. If the fair market monthly rent of the Premises established in the two (2) months before the applicable Determination Date, then Landlord and Tenant each shall give notice appraisals varies by five percent (the “Determination Notice”5%) to the other setting forth their respective determinations or less of the Fair Market Rental Valuehigher rental, and, subject to the provisions of paragraph (b) below, either party may apply to the then president average of the Real Estate Bar Association of Massachusetts or any successor thereto for the designation of an arbitrator satisfactory to both parties to render a final determination two shell be controlling. If said fair market monthly rent varies by more than five percent (5%) of the Fair Market Rental Valuehigher rental, said appraisers, within ten (10) days after submission of the last appraisal, shall appoint a third appraiser who shall be a member of the AIREA and who shall also be experienced in the appraisal of rental value and adjustment practices for commercial properties in the vicinity of the Premises. Such third appraiser shell within twenty (20) business days after his appointment, determine by appraisal the fair market monthly rent of the Premises sating into account the same factors referred to above, and submit his appraisal report to Lessor and Lessee. The fair market rental value monthly rent determined by the third appraiser for the Premises shall be controlling, unless it is less than that set forth in the lower appraisal previously obtained, in which case the value set forth in said lower appraisal shall be controlling, or unless it is greater than that set forts in the higher appraisal previously obtained in which case the rental set forth in said higher appraisal shall be controlling. The method of adjusting rental periodically, including the manner and timing of such adjustments, shall be as determined by arbitration the initial two appraisers, if they agree on a single method; otherwise, it shall be as determined by the third appraiser. If either Lessor or Lessee fails to appoint an appraiser, or if an appraiser appointed by either of them fails, after his appointment to submit his appraisal within the requited period in accordance with the commercial arbitration rules of foregoing, the American Arbitration Association, except that there appraisal submitted by the appraiser properly appointed and timely submitting his appraisal shall be only one arbitrator, who shall have had at least ten (10) years’ experience as controlling. If the two appraisers appointed by Lessor and Lessee are unable to agree upon a commercial retail real estate broker or third appraiser in within the downtown Boston/financial district area. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (a), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered required period in accordance with the provisions of this paragraph (a) foregoing, application shall be final and binding in fixing the Fair Market Rental Valuemade within twenty (20) days thereafter by either Lessor or Lessee to AIREA, which shall appoint a member of said institute willing to serve as appraiser. The arbitrator cost of all appraisals under this subparagraph shall not have be borne equally by Lessor and Lessee. The rent for the power Extended Term will be equal to add to, modify, or change any of 92.5% the provisions of this Leaseabove fait market monthly rent.
Appears in 1 contract
Extended Term Rent. Within thirty (a30) The Basic Rent days after Lessor's receipt of ------------------ Lessee's notice of exercise of an Option, Lessor shall deliver to Lessee a proposal setting forth the monthly base rent for each the upcoming Extended Term. If Lessee within ten (10) days after receipt of such proposal agrees to such proposal, or fails to notify Lessor of its acceptance or rejection of such proposal (in which event Lessee shall be deemed to have agreed thereto), the amount of monthly base rent set forth in such proposal shall be binding on Lessor and Lessee. Should Lessee object in writing to Lessor's proposal within ten (10) days after receipt thereof, then during the ten (10) day period following Lessee's objection to Lessor's proposal, Lessor and Lessee shall negotiate in good faith for the purpose of reaching an agreement regarding the amount of the monthly base rent during the Extended Term. In the event the parties fail to agree in a written instrument signed by both parties upon the amount of the monthly base rent for the Extended Term within such ten (10) day period, the monthly base rent for the Extended Term shall be determined in the Fair Market Rental Value manner hereafter set forth. If the parties have not reached agreement on the amount of monthly rent for the Extended Term by the end of the ten (10) day period of good faith negotiation referred to in the immediately preceding paragraph, then the fair market monthly rent for the Premises shall be determined as follows. Within five (5) days after such ten (10) day period, Lessor and Lessee each shall appoint a broker. Each broker appointed under this Section 21 shall be a California licensed real estate broker having at least 5 years experience in leasing commercial properties within a ten (10) mile radius of the Premises. Such brokers so appointed shall each determine the fair market monthly base rent for the Premises as of the commencement of the Extended Term, taking into account the value of the Premises and prevailing comparable rentals in the area including the value of any improvements installed in the Premises. Such brokers shall, within twenty (20) business days after their appointment, complete their determinations and submit their reports thereof to Lessor and Lessee. If the fair market monthly base rent of the Premises set forth in the two (2) broker reports varies by less than five percent (5%) of the higher rental, then the fair market monthly base rent of the Premises shall be deemed to be the average of such two determinations. If the fair market monthly base rent of the Premises set forth in the two (2) broker reports varies by five percent (5%) or more of the higher rental, said brokers, within ten (10) days after submission of the last report, shall appoint a third broker meeting the broker qualifications set forth above. Such third broker shall, within twenty (20) business days after his appointment, determine the fair market monthly base rent of the Premises as of the commencement of the Extended Term in question (including without limitation such inflation indicators or periodic increases as may then be customary in Term, taking into account the market)same factors referred to above, determined without regard and submit his report thereof to improvements made to the Premises by Tenant or (for the Second Extended Term) to Tenant’s right to further extend, as agreed by the parties. For purposes hereof, the term “Fair Market Rental Value” shall mean the annual fixed rent that a willing tenant would pay Lessor and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the first day of the Extended Term (the “Determination Date”). If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within two (2) months before the applicable Determination Date, then Landlord and Tenant each shall give notice (the “Determination Notice”) to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (b) below, either party may apply to the then president of the Real Estate Bar Association of Massachusetts or any successor thereto for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental ValueLessee. The fair market rental value monthly base rent determined by the third broker for the Premises shall be determined controlling, unless it is less than that set forth in the lower determination previously obtained, in which case the rental set forth in said lower determination shall be controlling, or unless it is greater than that set forth in the higher determination previously obtained, in which case the rental set forth in said higher determination shall be controlling. If either Lessor or Lessee fails to appoint an broker, or if a broker appointed by arbitration either of them fails, after his appointment, to submit a report of his determination within the required period in accordance with the commercial arbitration rules of foregoing, the American Arbitration Association, except that there determination in the report submitted by the broker properly appointed and timely submitting his report shall be only one arbitrator, who shall have had at least ten (10) years’ experience as controlling. If the two brokers appointed by Lessor and Lessee are unable to agree upon a commercial retail real estate third broker or appraiser in within the downtown Boston/financial district area. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (a), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered required period in accordance with the provisions foregoing, application shall be made within twenty (20) days thereafter by either Lessor or Lessee to a local court of law having jurisdiction which shall appoint a broker having the qualifications specified above. The cost of all broker determinations under this subparagraph shall be borne equally by Lessor and Lessee. The amount of monthly rent for the Premises determined as set forth above in this paragraph shall be applicable during the first year of the Extended Term, and thereafter, on the first and each succeeding annual anniversary of the commencement of the Extended Term, shall be increased to an amount which is 1.0375 times the amount of monthly rent payable during the month preceding such increase. The intent of the parties is to increase the monthly rent amount each year during the Extended Term by 3.75% of the immediately preceding rent amount. Notwithstanding anything to the contrary contained in this Section 21.2, in no event shall the monthly base rent for the Extended Term be less than the monthly base rent payable hereunder for the last full month of the term of this paragraph (a) shall be final and binding in fixing Lease immediately preceding commencement of the Fair Market Rental ValueExtended Term. The arbitrator For purposes of the preceding sentence, the amount of monthly base rent for the last month of the Lease term shall not have the power be reduced to add to, modify, or change reflect any abatement of the provisions of this Leaserent which may then be in effect.
Appears in 1 contract
Sources: Industrial Lease (Valicert Inc)
Extended Term Rent. If Tenant exercises its Option to Extend the Lease Term, the Base Monthly Rent for the Premises shall become the greater of the rent payable for the last month of the then expiring Lease Term or ninety-five percent (95%) of the fair market monthly rent (“Fair Market Rent”) for the Premises on the date of the Tenant’s notice. Beginning with the second year of the Extended Term the Base Monthly Rent shall be increased by four percent (4%) over the prior year’s Base Monthly Rent on each anniversary of the commencement of, and throughout, the Extended Term. Said Fair Market Rent for the Premises shall be determined in accordance with the following:
(1) Within fifteen (15) days following receipt of Tenant’s notice of exercise of an Option, Landlord shall notify Tenant in writing of its assessment of the Fair Market Rent for the Premises (the “Landlord’s Rent Assessment”). Within fifteen (15) days following receipt of Landlord’s assessment, Tenant shall either approve the Landlord’s Rent Assessment or advise Landlord of its alternative assessment of the Fair Market Rent for the Premises (“Tenant’s Rent Assessment”).
(2) If Landlord and Tenant’s assessments differ or if one of them does not provide its assessment of the Fair Market Rent, they shall meet and confer in good faith until the one hundred twentieth (120th) day preceding the commencement date of the Option term in order to reach agreement on the Fair Market Rent for the Premises. If no agreement is reached during such period, then either party may demand that the Fair Market Rent be determined by an appraisal conducted in accordance with the procedures specified in this Section, by delivery of written notice to the other party prior to the one hundredth (100th) day preceding the commencement date of the Option term.
(3) Notwithstanding anything to the contrary contained in this Section, if the parties are unable to agree upon the Fair Market Rent for the Premises on or before the one hundred twentieth (120th) day prior to the commencement of the Option term, then Tenant may elect to rescind its exercise of the Option to Lease by giving Landlord written notice of such recession on or before the one hundredth (100th) day preceding the commencement date of the Option term. If no such notice of recession is given the Fair Market Rent for the Premises shall be determined by appraisal as set forth below. If Tenant rescinds its exercise of the Option, then the Lease shall terminate on the later of the date the Lease would have otherwise terminated absent Tenant’s exercise of the Option or the date specified in Tenant’s notice (which date shall not be later than one (180th) day following the date of the recession notice) and if such period extends beyond the then scheduled termination date of the Lease, the Base Monthly Rent for any period beyond such scheduled termination date shall be 125% of the base rent last paid during the expiring term.
(4) If it becomes necessary to determine the fair market rental value for the Premises by appraisal, real estate appraiser(s), all of whom shall be members of the American Institute of Real Estate Appraisers and who have at least five (5) years experience appraising office space located in the vicinity of the Premises shall be appointed and shall act in accordance with the following procedures:
a) The Basic Rent for each Extended Term party demanding an appraisal (the “Notifying Party”) shall state the name, address, and qualifications of its selected appraiser in its notice of an appraisal demand. Within ten (10) days following receipt of the Notifying Party’s appraisal demand, the other party (the “Non-Notifying Party”) shall either approve the appraiser selected by the notifying party or select a second properly qualified appraiser by giving written notice of the name, address and qualification of said appraiser to the Notifying Party. If the Non-Notifying Party fails to select an appraiser within the ten (10) day period, the appraiser selected by the Notifying Party shall be deemed selected by both parties and no other appraiser shall be selected. If two appraisers are selected, they shall select a third appropriately qualified appraiser within ten (10) days following the date the second appraiser is selected. If the two appraisers fail to select a third qualified appraiser within said (10) day period, then the third appraiser shall be appointed by the then presiding judge of the county where the Premises are located upon application by either party.
b) If only one appraiser is selected, that appraiser shall notify the parties in simple letter form of its determination of the Fair Market Rental Value Rent for the Premises within fifteen (15) days following his selection, which appraisal shall be conclusively determinative and binding on the parties as the appraised Fair Market Rent.
c) If multiple appraisers are selected, the appraisers shall meet not later than ten (10) days following the selection of the last appraiser. At such meeting, the appraisers shall attempt to determine the Fair Market Rent for the Premises as of the commencement date of the Extended Term in question (including without limitation such inflation indicators or periodic increases as may then be customary in the market), determined without regard to improvements made to the Premises by Tenant or (for the Second Extended Term) to Tenant’s right to further extend, as agreed Option term by the parties. For purposes hereof, the term “Fair Market Rental Value” shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease agreement of the Premises as of the first day of the Extended Term (the “Determination Date”). If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within at least two (2) months before of the applicable Determination Dateappraisers.
d) If two (2) or more of the appraisers agree on the Fair Market Rent for the Premises at the initial meeting, then such agreement shall be determinative and binding upon the parties hereto and the agreeing appraisers shall, in simple letter form executed by the agreeing appraisers, forthwith notify both Landlord and Tenant each of the amount set by such agreement. If multiple appraisers are selected and two (2) appraisers are unable to agree on the Fair Market Rent for the Premises, all appraisers shall give notice (the “Determination Notice”) submit to the other setting forth their respective determinations Landlord and Tenant an independent appraisal of the Fair Market Rental Value, and, subject to Rent for the provisions of paragraph Premises in simple letter form within twenty (b20) below, either party may apply to the then president days following appointment of the Real Estate Bar Association of Massachusetts or any successor thereto for the designation of an arbitrator satisfactory to both final appraiser. The parties to render a final determination of shall then determine the Fair Market Rental Value. The fair market rental value Rent for the Premises by averaging the appraisals; provided that, in determining the average, any appraisal, which exceeds the Landlord’s Rent Assessment for the Premises, which is less than the Tenant’s Rent Assessment for the Premises, or which differs from the middle appraisal by more than ten percent (10%) of the middle appraisal shall be determined by arbitration in accordance disregarded.
e) The appraisers’ determination of Fair Market Rent shall be based on rental of space of the same age, construction, size and location as the Premises with the commercial arbitration rules of improvements installed therein at Landlord’s sole expense and shall take into account Tenant’s obligations to pay Additional Rent, and annual increases to Base Rent, under this Lease. In determining Fair Market Rent, the American Arbitration Association, except that there appraisers shall be not consider any Tenant’s Alterations (as defined in Section 5.B) or Trade Fixtures installed in the Premises at Tenant’s expense.
f) If only one arbitratorappraiser is selected, who shall have had at least ten (10) years’ experience as a commercial retail real estate broker or appraiser in the downtown Boston/financial district area. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each then each party shall pay its own counsel one-half of the fees and expensesexpenses of that appraiser. If three appraisers are selected, if any, in connection with any arbitration under this paragraph (a), each party shall bear the fees and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (a) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions appraiser it selects and one-half of this Leasethe fees and expenses of the third appraiser.
Appears in 1 contract
Sources: Lease (Echelon Corp)
Extended Term Rent. (a) The Basic Rent for each Extended Term shall be the Fair Market Rental Value of the Premises as As of the commencement of the Extended Term in question (including without limitation such inflation indicators or periodic increases as may then be customary in the market), determined without regard to improvements made to the Premises by Tenant or (for the Second Extended --------------------- Term) to Tenant’s right to further extend, as agreed by the parties. For purposes hereof, the term “Fair Market Rental Value” shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the first day of monthly Base Rent for the Extended Term (the “Determination Date”). If shall be subject to negotiations between Landlord and Tenant shall as to a fair market rental. The renegotiated rent will not take into consideration any improvements installed in the premises by Tenant at Tenant's expense. In the event the parties fail to agree upon the Fair Market Rental Value within two (2) months before amount of the applicable Determination Datemonthly Base Rent for the Extended Term prior to commencement thereof, then the monthly Base Rent for the Extended Term shall be determined by appraisal in the manner hereafter set forth; provided, however, that in no event shall the monthly Base Rent for the Extended Term be less than the monthly Base Rent payable hereunder for the last full month of the Lease term immediately preceding commencement of the Extended Term. In the event it becomes necessary under this subparagraph 33.2 to determine the fair market monthly Base Rent of the premises by appraisal, Landlord and Tenant each shall give notice (the “Determination Notice”) to the other setting forth their respective determinations appoint an experienced real estate appraiser who shall be a member of the Fair Market Rental ValueAmerican Institute of Real Estate Appraisers ("AIREA"), andand such appraisers shall each determine the fair market monthly Base Rent for the premises, subject to taking into account the provisions of paragraph (b) below, either party may apply to the then president value of the Real Estate Bar Association of Massachusetts or any successor thereto for premises and prevailing comparable rentals in the designation of an arbitrator satisfactory area. Such appraisers shall, within twenty (20) business days after their appointment , complete their appraisals and submit their appraisal reports to both parties to render a final determination Landlord and Tenant. If the fair market monthly Base Rent of the Fair Market Rental Valuepremises established in the two (2) appraisals varies by five percent (5%) or less of the higher rental, the average of the two shall be controlling. If said fair market monthly Base Rent varies by more than five percent (5%) of the higher rental, said appraisers, within ten (10) days after submission of the last appraisal, shall appoint a third appraiser who shall be a member of the AIREA. Such third appraiser shall, within twenty (20) business days after his appointment, determine by appraisal the fair market monthly Base Rent of the premises, taking into account the same factors referred to above, and submit his appraisal report to Landlord and Tenant. The fair market rental value monthly Base Rent determined by the third appraiser for the premises shall be determined controlling, unless it is less than that set forth in the lower appraisal previously obtained, in which case the value set forth in said lower appraisal shall be controlling, or unless it is greater than that set forth in the higher appraisal previously obtained, in which case then rental set forth in the higher appraisal shall be controlling. If either Landlord or Tenant fails to appoint an ap▇▇▇▇▇▇r, or if an appraiser appointed by arbitration either of them fails, after his appointment, to submit his appraisal within the required period in accordance with the commercial arbitration rules of foregoing, the American Arbitration Association, except that there appraisal submitted by the appraiser properly appointed and timely submitting his appraisal shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a commercial retail real estate broker or appraiser in controlling. If the downtown Boston/financial district area. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice two appraisers appoint by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (a), and Tenant are unabl▇ ▇▇ ▇▇▇ee up▇▇ ▇ ▇hird appraiser within the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered required period in accordance with the provisions of this paragraph (a) foregoing, application shall be final and binding in fixing made within twenty (20) days thereafter by either Landlord or Tenant to the Fair Market Rental ValueAIREA, which shall appoint a member of said institute willing to serve as appraiser. The arbitrator cost of all appraisals under this subparagraph shall not have the power to add to, modify, or change any of the provisions of this Leasebe borne equally by Landlord and Tenant.
Appears in 1 contract
Extended Term Rent. (a) The Basic Rent for each Extended Term shall be the Fair Market Rental Value of the Premises Provided Tenant has given proper written notice as required pursuant to Section 3.2 hereof, as of the commencement of the Extended Term in question (including without limitation such inflation indicators or periodic increases as may then be customary in Term, the market), determined without regard to improvements made to the Premises by Tenant or (Minimum Annual Rent for the Second Extended Term) to Tenant’s right to further extend, as agreed by the parties. For purposes hereof, the term “Fair Market Rental Value” shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length first lease of the Premises as of the first day year of the Extended Term shall be subject to negotiation between Landlord and Tenant. Landlord and Tenant shall negotiate in good faith and shall use their best efforts to agree on the fair market rent for the Premises for the first lease year of the Extended Term within sixty (60) days following Tenant’s notification to Landlord of its option to extend. The Minimum Annual Rent for the first lease year of the Extended Term shall be the fair market rent for similar premises within a one mile radius of the Premises, provided that in on event shall the Minimum Annual Rent paid during the Extended Term be less than the Minimum Annual Rent paid during the prior lease year. The agreed upon fair market rent shall be increased by the amount of any brokerage fee’s and/or tenant improvement allowances, if any, that Landlord agrees in writing to pay (“Determination DateExtension Rent”)) and will be subject to annual increases thereafter as hereinafter defined. If the parties fail to agree upon the amount of the Extension Rent for the Extended Term prior to commencement thereof, the Minimum Annual Rent for the first lease year of the Extended Term shall be determined by appraisal in the manner hereafter set forth; provided, however, that in no event shall the Minimum Annual Rent for the first lease year of the Extended Term be less than the Minimum Annual Rent payable hereunder for the last full year of the Lease Term immediately preceding commencement of the Extended Term plus any brokerage fee’s and/or tenant improvement allowances, if any, that Landlord agrees in writing to pay. If Landlord and Tenant shall fail to cannot agree upon on the Fair Market Rental Value fair market rent within two said sixty (260) months before the applicable Determination Dateday period, then as specified above, Landlord and Tenant each shall give notice appoint an experienced real estate appraiser within ten (the “Determination Notice”10) to the other setting forth their respective determinations days of the Fair Market Rental Value, and, subject to the provisions of paragraph (b) below, either party may apply to the then president expiration of the initial sixty (60) day negotiation period specified above who shall be a member of the American Institute of Real Estate Bar Association of Massachusetts or any successor thereto Appraisers (“AIREA”), and such appraisers shall each determine the fair market rent for the designation of an arbitrator satisfactory to both parties to render a final determination Premises for the first lease year of the Fair Market Rental ValueExtended Term, taking into account the value of the Premises and prevailing comparable rents within a one mile radius of the Premises. Such appraisers shall, within twenty (20) business days after their appointment, complete their appraisals and submit their appraisals reports to Landlord and Tenant. If the fair market rent of the Premises established in the lower of the two (2) appraisals is within five percent (5%) or less of the higher of the two (2) appraisals, then the fair market rent for the Premises will be an average of the two appraisals. If the two (2) appraisals vary by more than five percent (5%), then the appraisers, within ten (10) days after submission of the last appraisal, shall appoint a third appraiser who shall be a member of the AIREA. Such third appraiser shall, within twenty (20) business days after his appointment, determine by appraisal the fair market rent of the Premises, taking into account the same factors referred to above, and submit his appraisal report to Landlord and Tenant. The fair market rental value rent for the Premises determined by the third appraiser shall be determined controlling so long as it falls between the two appraisals previously obtained. If the fair market rent is less than that set forth in the lower of the two appraisals previously obtained, then the fair market rent set forth in such previously obtained lower appraisal shall be controlling. If the fair market rent is greater than that set forth in the higher appraisal previously obtained, then the rent set forth in such previously obtained higher appraisal shall be controlling. If either Landlord or Tenant fails to timely appoint an appraiser, or if an appraiser appointed by arbitration either of them fails, after his appointment, to submit his appraisal within the required periods in accordance with the commercial arbitration rules of foregoing, the American Arbitration Association, except that there appraisal submitted by the appraiser properly appointed and timely submitting his appraisal shall be only one arbitratorcontrolling. If the two appraisers appointed by Landlord and Tenant are unable to agree upon a third appraiser within the required period in accordance with the foregoing, who application shall have had at least ten be made within (1020) years’ experience days thereafter by either Landlord or Tenant to the AIREA which shall appoint a member of said institute willing to serve as a commercial retail real estate broker or appraiser in the downtown Boston/financial district areaappraiser. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one cost of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator all appraisals under this Section shall be binding upon borne equally by Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (a), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered Extension Rent established in accordance with the provisions of this paragraph (a) shall be final and binding in fixing foregoing procedure for the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any first lease year of the provisions Extended Term will become the new Minimum Annual Rent for the purpose of this Leasecalculating any further rent adjustments. On each anniversary of the Commencement Date commencing at the inception of the second year of the Extended Term, the Minimum Annual Rent will be subject to annual rent increases as provided in Section 1.9 hereof.
Appears in 1 contract
Extended Term Rent. (a) The Basic Rent for each Extended Term shall be the Fair Market Rental Value of the Premises as of the commencement of the Extended Term in question (including without limitation such inflation indicators or periodic increases as may then be customary in the market), determined without regard to improvements made to the Premises by Tenant or (for the Second Extended Term) to Tenant’s right to further extend, as agreed by the parties. For purposes hereof, the term “Fair Market Rental Value” shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the first day of the Extended Term (the “Determination Date”). If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within two (2) months before the applicable Determination Date, then Landlord and Tenant each shall give notice (the “Determination Notice”) to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (b) below, either party may apply to the then president of the Real Estate Bar Association of Massachusetts or any successor thereto for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. The fair market rental value shall be determined by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, except that there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a commercial retail real estate broker or appraiser in the downtown Boston/financial district area. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within Within thirty (30) days after having been appointed▇▇▇▇▇▇▇▇'s receipt of Tenant's notice of exercise of an Option, choose one Landlord shall deliver to Tenant a proposal setting forth the monthly Base Rent for the upcoming Extended Term, which proposal shall be based upon the fair market rental for the premises. Such fair market rental value shall not include the value of improvements to the premises performed by Tenant at Tenant's expense. For the purposes of the determinations preceding sentence, if ▇▇▇▇▇▇ receives reimbursement from Landlord for the cost of any improvements pursuant to the provisions of Paragraph 34 below, such improvements shall not be deemed to be made at Tenant's expense. If Tenant within ten (10) business days after receipt of such proposal agrees to such proposal, the amount of monthly Base Rent set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator such proposal shall be binding upon on Landlord and Tenant. Each party Should Tenant object in writing to /s/ illegible /s/ MAB ------------- ------- Landlord 28 Tenant Landlord's proposal within ten (10) business days after receipt thereof, or fail to respond within such period (which failure shall pay its own counsel fees be deemed an objection), then during the ten (10) business day period following Tenant's objection to Landlord's proposal, Landlord and expensesTenant shall negotiate in good faith for the purpose of reaching an agreement regarding the amount of the monthly Base Rent during the upcoming Extended Term. In the event the parties fail to agree in a written instrument signed by both parties upon the amount of the Base Rent for the upcoming Extended Term within such ten (10) business day period, if anythe monthly Base Rent for the upcoming Extended Term shall be determined by appraisal in the manner hereafter set forth; provided, however, that in connection with no event shall the amount of the monthly Base Rent for the upcoming Extended Term be less than the monthly Base Rent payable hereunder for the last full month of the term of this Lease (including any arbitration then current Extended Term) immediately preceding commencement of the upcoming Extended Term. For purposes of the preceding sentence, the amount of monthly Base Rent for the last month of the Lease term shall not be reduced to reflect any abatement of rent which may then be in effect. In the event it becomes necessary under this paragraph Paragraph 33.2 to determine the fair market monthly Base Rent of the premises by appraisal, Landlord and Tenant each shall appoint an experienced real estate appraiser who shall be a member of the American Institute of Real Estate Appraisers (a"AIREA"), and such appraisers shall each determine the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered fair market monthly Base Rent for the premises in its existing condition in accordance with the provisions below. The appraisers shall, within twenty (20) business days after their appointment, complete their appraisals and submit their appraisal reports to Landlord and Tenant. If the fair market monthly Base Rent of this paragraph the premises established in the two (a2) appraisals varies by five percent (5%) or more of the higher rental, said appraisers, within ten (10) days after submission of the last appraisal, shall appoint a third appraiser who shall be final a member of the AIREA. Such third appraiser shall, within twenty (20) business days after his appointment, determine by appraisal the fair market monthly Base Rent of the premises, and binding in fixing the Fair Market Rental Valuesubmit his appraisal report to Landlord and Tenant. The arbitrator fair market monthly Base Rent determined by the third appraiser for the premises shall not have be controlling, unless it is less than that set forth in the power to add tolower appraisal previously obtained, modifyin which case the rental set forth in said lower appraisal shall be controlling, or change any unless it is greater than that set forth in the higher appraisal previously obtained, in which case the rental set forth in said higher appraisal previously obtained shall be controlling. If either Landlord or ▇▇▇▇▇▇ fails to appoint an appraiser, or if an appraiser appointed by either of them fails, after his appointment, to submit his appraisal within the provisions required period in accordance with the foregoing, the appraisal submitted by the appraiser properly appointed and timely submitting his appraisal shall be controlling. If the two appraisers appointed by ▇▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ are unable to agree upon a third appraiser within the required period in accordance with the foregoing, application shall be made within twenty (20) days thereafter by either Landlord or Tenant to the AIREA, which shall appoint a member of said institute willing to serve as appraiser. The cost of all appraisals under this Leasesubparagraph shall be borne equally by Landlord and Tenant.
Appears in 1 contract
Extended Term Rent. Within thirty (a30) The Basic Rent days after Lessor’s receipt of Lessee’s notice of exercise of an Option, Lessor shall deliver to Lessee a proposal setting forth the monthly base rent for each the upcoming Extended Term. If Lessee within ten (10) days after receipt of such proposal agrees to such proposal, or fails to notify Lessor of its acceptance or rejection of such proposal (in which event Lessee shall be deemed to have agreed thereto), the amount of monthly base rent set forth in such proposal shall be binding on Lessor and Lessee. Should Lessee object in writing to Lessor’s proposal within ten (10) days after receipt thereof, then during the ten (10) day period following Lessee’s objection to Lessor’s proposal, Lessor and Lessee shall negotiate in good faith for the purpose of reaching an agreement regarding the amount of the monthly base rent during the Extended Term. In the event the parties fail to agree in a written instrument signed by both parties upon the amount of the monthly base rent for the Extended Term within such ten (10) day period, the monthly base rent for the Extended Term shall be determined in the Fair Market Rental Value manner hereafter set forth. If the parties have not reached agreement on the amount of monthly rent for the Extended Term by the end of the ten (10) day period of good faith negotiation referred to in the immediately preceding paragraph, then the fair market monthly rent for the Premises shall be determined as follows. Within five (5) days after such ten (10) day period, Lessor and Lessee each shall appoint a broker. Each broker appointed under this Section 21 shall be a California licensed real estate broker having at least 5 years experience in leasing commercial properties within a ten (10) mile radius of the Premises. Such brokers so appointed shall each determine the fair market monthly base rent for the Premises as of the commencement of the Extended Term, taking into account the value of the Premises and prevailing comparable rentals in the area including the value of any improvements installed in the Premises. Such brokers shall, within twenty (20) business days after their appointment, complete their determinations and submit their reports thereof to Lessor and Lessee. If the fair market monthly base rent of the Premises set forth in the two (2) broker reports varies by less than five percent (5%) of the higher rental, then the fair market monthly base rent of the Premises shall be deemed to be the average of such two determinations. If the fair market monthly base rent of the Premises set forth in the two (2) broker reports varies by five percent (5%) or more of the higher rental, said brokers, within ten (10) days after submission of the last report, shall appoint a third broker meeting the broker qualifications set forth above. Such third broker shall, within twenty (20) business days after his appointment, determine the fair market monthly base rent of the Premises as of the commencement of the Extended Term in question (including without limitation such inflation indicators or periodic increases as may then be customary in Term, taking into account the market)same factors referred to above, determined without regard and submit his report thereof to improvements made to the Premises by Tenant or (for the Second Extended Term) to Tenant’s right to further extend, as agreed by the parties. For purposes hereof, the term “Fair Market Rental Value” shall mean the annual fixed rent that a willing tenant would pay Lessor and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the first day of the Extended Term (the “Determination Date”). If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within two (2) months before the applicable Determination Date, then Landlord and Tenant each shall give notice (the “Determination Notice”) to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (b) below, either party may apply to the then president of the Real Estate Bar Association of Massachusetts or any successor thereto for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental ValueLessee. The fair market rental value monthly base rent determined by the third broker for the Premises shall be determined controlling, unless it is less than that set forth in the lower determination previously obtained, in which case the rental set forth in said lower determination shall be controlling, or unless it is greater than that set forth in the higher determination previously obtained, in which case the rental set forth in said higher determination shall be controlling. If either Lessor or Lessee fails to appoint an broker, or if a broker appointed by arbitration either of them fails, after his appointment, to submit a report of his determination within the required period in accordance with the commercial arbitration rules of foregoing, the American Arbitration Association, except that there determination in the report submitted by the broker properly appointed and timely submitting his report shall be only one arbitrator, who shall have had at least ten (10) years’ experience as controlling. If the two brokers appointed by Lessor and Lessee are unable to agree upon a commercial retail real estate third broker or appraiser in within the downtown Boston/financial district area. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (a), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered required period in accordance with the provisions foregoing, application shall be made within twenty (20) days thereafter by either Lessor or Lessee to a local court of law having jurisdiction which shall appoint a broker having the qualifications specified above. The cost of all broker determinations under this subparagraph shall be borne equally by Lessor and Lessee. The amount of monthly rent for the Premises determined as set forth above in this paragraph shall be applicable during the first year of the Extended Term, and thereafter, on the first and each succeeding annual anniversary of the commencement of the Extended Term, shall be increased to an amount which is 1.05 times the amount of monthly rent payable during the month preceding such increase. The intent of the parties is to increase the monthly rent amount each year during the Extended Term by 5% of the immediately preceding rent amount. Notwithstanding anything to the contrary contained in this Section 21.2, in no event shall the monthly base rent for the Extended Term be less than the monthly base rent payable hereunder for the last full month of the term of this paragraph (a) shall be final and binding in fixing Lease immediately preceding commencement of the Fair Market Rental ValueExtended Term. The arbitrator For purposes of the preceding sentence, the amount of monthly base rent for the last month of the Lease term shall not have the power be reduced to add reflect any abatement of rent which may then be in effect. NONE. RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: ___________________________________ ___________________________________ ___________________________________ ___________________________________ NOTICE: THIS SUBORDINATION, NONDISTURBANCE AND ATTORNMENT AGREEMENT RESULTS IN YOUR LEASEHOLD ESTATE IN THE PROPERTY BECOMING SUBJECT TO AND OF LOWER PRIORITY THAN THE LIEN OF SOME OTHER OR LATER SECURITY INSTRUMENT. Beneficiary & Address: with a copy to, modify, or change any of the provisions of this Lease.: Tenant & Address: Landlord & Address:
Appears in 1 contract
Sources: Industrial Lease (NeoStem, Inc.)
Extended Term Rent. If Tenant exercises its Option to Extend the Lease Term, the Base Monthly Rent for the Premises shall become the greater of the rent payable for the last month of the then expiring Lease Term or ninety-five percent (95%) of the fair market monthly rent (“Fair Market Rent”) for the Premises on the date of the Tenant’s notice. Beginning with the second year of the Extended Term the Base Monthly Rent shall be increased by three percent (3%) over the prior year’s Base Monthly Rent on each anniversary of the commencement of, and throughout, the Extended Term. Said Fair Market Rent for the Premises shall be determined in accordance with the following:
(1) Within fifteen (15) days following receipt of Tenant’s notice of exercise of an Option, Landlord shall notify Tenant in writing of its assessment of the Fair Market Rent for the Premises (the “Landlord’s Rent Assessment”). Within fifteen (15) days following receipt of Landlord’s assessment, Tenant shall either approve the Landlord’s Rent Assessment or advise Landlord of its alternative assessment of the Fair Market Rent for the Premises (“Tenant’s Rent Assessment”).
(2) If Landlord and Tenant’s assessments differ or if one of them does not provide its assessment of the Fair Market Rent, they shall meet and confer in good faith until the one hundred twentieth (120th) day preceding the commencement date of the Option term in order to reach agreement on the Fair Market Rent for the Premises. If no agreement is reached during such period, then either party may demand that the Fair Market Rent be determined by an appraisal conducted in accordance with the procedures specified in this Section, by delivery of written notice to the other party prior to the one hundredth (100th) day preceding the commencement date of the Option term.
(3) Notwithstanding anything to the contrary contained in this Section, if the parties are unable to agree upon the Fair Market Rent for the Premises on or before the one hundred twentieth (120th) day prior to the commencement of the Option term, then Tenant may elect to rescind its exercise of the Option to Lease by giving Landlord written notice of such recession on or before the one hundredth (100th) day preceding the commencement date of the Option term. If no such notice of recession is given the Fair Market Rent for the Premises shall be determined by appraisal as set forth below. If Tenant rescinds its exercise of the Option, then the Lease shall terminate on the later of the date the Lease would have otherwise terminated absent Tenant’s exercise of the Option or the date specified in Tenant’s notice (which date shall not be later than one (180th) day following the date of the recession notice) and if such period extends beyond the then scheduled termination date of the Lease, the Base Monthly Rent for any period beyond such scheduled termination date shall be 125% of the base rent last paid during the expiring term.
(4) If it becomes necessary to determine the fair market rental value for the Premises by appraisal, real estate appraiser(s), all of whom shall be members of the American Institute of Real Estate Appraisers and who have at least five (5) years experience appraising office space located in the vicinity of the Premises shall be appointed and shall act in accordance with the following procedures:
a) The Basic Rent for each Extended Term party demanding an appraisal (the “Notifying Party”) shall state the name, address, and qualifications of its selected appraiser in its notice of an appraisal demand. Within ten (10) days following receipt of the Notifying Party’s appraisal demand, the other party (the “Non-Notifying Party”) shall either approve the appraiser selected by the notifying party or select a second properly qualified appraiser by giving written notice of the name, address and qualification of said appraiser to the Notifying Party. If the Non-Notifying Party fails to select an appraiser within the ten (10) day period, the appraiser selected by the Notifying Party shall be deemed selected by both parties and no other appraiser shall be selected. If two appraisers are selected, they shall select a third appropriately qualified appraiser within ten (10) days following the date the second appraiser is selected. If the two appraisers fail to select a third qualified appraiser within said (10) day period, then the third appraiser shall be appointed by the then presiding judge of the county where the Premises are located upon application by either party.
b) If only one appraiser is selected, that appraiser shall notify the parties in simple letter form of its determination of the Fair Market Rental Value Rent for the Premises within fifteen (15) days following his selection, which appraisal shall be conclusively determinative and binding on the parties as the appraised Fair Market Rent.
c) If multiple appraisers are selected, the appraisers shall meet not later than ten (10) days following the selection of the last appraiser. At such meeting, the appraisers shall attempt to determine the Fair Market Rent for the Premises as of the commencement date of the Extended Term in question (including without limitation such inflation indicators or periodic increases as may then be customary in the market), determined without regard to improvements made to the Premises by Tenant or (for the Second Extended Term) to Tenant’s right to further extend, as agreed Option term by the parties. For purposes hereof, the term “Fair Market Rental Value” shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease agreement of the Premises as of the first day of the Extended Term (the “Determination Date”). If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within at least two (2) months before of the applicable Determination Dateappraisers.
d) If two (2) or more of the appraisers agree on the Fair Market Rent for the Premises at the initial meeting, then such agreement shall be determinative and binding upon the parties hereto and the agreeing appraisers shall, in simple letter form executed by the agreeing appraisers, forthwith notify both Landlord and Tenant each of the amount set by such agreement. If multiple appraisers are selected and two (2) appraisers are unable to agree on the Fair Market Rent for the Premises, all appraisers shall give notice (the “Determination Notice”) submit to the other setting forth their respective determinations Landlord and Tenant an independent appraisal of the Fair Market Rental Value, and, subject to Rent for the provisions of paragraph Premises in simple letter form within twenty (b20) below, either party may apply to the then president days following appointment of the Real Estate Bar Association of Massachusetts or any successor thereto for the designation of an arbitrator satisfactory to both final appraiser. The parties to render a final determination of shall then determine the Fair Market Rental Value. The fair market rental value Rent for the Premises by averaging the appraisals; provided that, in determining the average, any appraisal, which exceeds the Landlord’s Rent Assessment for the Premises, which is less than the Tenant’s Rent Assessment for the Premises, or which differs from the middle appraisal by more than ten percent (10%) of the middle appraisal shall be determined by arbitration in accordance disregarded.
e) The appraisers’ determination of Fair Market Rent shall be based on rental of space of the same age, construction, size and location as the Premises with the commercial arbitration rules of improvements installed therein at Landlord’s sole expense and shall take into account Tenant’s obligations to pay Additional Rent, and annual increases to Base Rent, under this Lease. In determining Fair Market Rent, the American Arbitration Association, except that there appraisers shall be not consider any Tenant’s Alterations (as defined in Section 5.B) or Trade Fixtures installed in the Premises at Tenant’s expense.
f) If only one arbitratorappraiser is selected, who shall have had at least ten (10) years’ experience as a commercial retail real estate broker or appraiser in the downtown Boston/financial district area. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each then each party shall pay its own counsel one-half of the fees and expensesexpenses of that appraiser. If three appraisers are selected, if any, in connection with any arbitration under this paragraph (a), each party shall bear the fees and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (a) shall be final and binding in fixing the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions appraiser it selects and one-half of this Leasethe fees and expenses of the third appraiser.
Appears in 1 contract
Sources: Lease (Echelon Corp)
Extended Term Rent. (a) The Basic Rent If this Option is exercised, the basic rent for each Extended Term the Premises shall be ninety-five percent (95%) of the then-current fair market monthly rent ("Fair Market Rental Value of Rent") for the Premises as of the commencement date of the Extended Term in question (including without limitation such inflation indicators or periodic increases as may then be customary in the market), determined without regard to improvements made to the Premises by Tenant or (for the Second Extended Term) to Tenant’s right to further extendapplicable extended term, as agreed determined by the parties. For purposes hereof, the term “Fair Market Rental Value” shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease agreement of the Premises as of parties, or, if the first day of the Extended Term (the “Determination Date”). If Landlord and Tenant shall fail to agree upon parties cannot agree, then the Fair Market Rental Value within Rent shall be determined by three brokers. Within fifteen (15) days after the parties have failed to agree to a determination of ninety-five (95%) percent of the then current fair market monthly rent for the Premises, Lessor and Lessee each shall appoint a person who is a licensed California real estate broker and who has been engaged full-time in the office brokerage business in the County of Santa Clar▇ ▇▇▇ at least the immediately preceding five (5) years . The two (2) months before the applicable Determination Datebrokers so appointed shall appoint a third broker, then Landlord and Tenant each shall give notice (the “Determination Notice”) to the other setting forth their respective determinations of the Fair Market Rental Valuesimilarly qualified, and, subject to the provisions of paragraph (b) below, either party may apply to the then president of the Real Estate Bar Association of Massachusetts or any successor thereto for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. The fair market rental value shall be determined by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, except that there shall be only one arbitrator, who shall have had at least within ten (10) years’ experience as days after the appointment of the last appointed broker, and shall notify the parties of the identity of the third broker. If the two brokers are unable to agree upon a commercial retail real estate broker or appraiser in third broker, either party may, upon not less than five (5) days' prior written notice to the downtown Boston/financial district areaother party, applied to the then President of the Santa Clar▇ ▇▇▇nty Real Estate Board for the appointment of a third qualified broker. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within Within thirty (30) days after having been appointed, choose one the selection of the determinations third broker, a majority of the brokers shall set forth the fair market rent for the Option term. If a majority of the brokers is unable to set the fair market rent within the stipulated period of time, Lessor's broker shall arrange for simultaneous exchange of the written appraisals from each of the brokers and the three (3) appraisals shall be added together and their total divided by three (3); the resulting quotient shall be the fair market rental value for the Premises during the Option term. If, however, the low appraisal and/or the high appraisal are/is more than ten percent (10%) lower and/or higher than the middle appraisal, the low appraisal and/or the high appraisal shall be disregarded. If only one (1) appraisal is disregarded, the remaining two (2) appraisals shall be added together and their total divided by two (2); the resulting quotient shall be the fair market rent for the Premises during the Option term. If both the low appraisal and the high appraisal are disregarded as stated in either Landlord’s or Tenant’s Determination Noticethis Paragraph, the middle appraisal shall be the fair market rent for the Premises during the Option term. After the fair market rent for the Option term has been set, the brokers immediately shall notify Lessor and Lessee, and that choice Lessor and Lessee promptly shall execute an amendment to the Lease stating the fair market rent. All other terms and conditions contained in the Lease and this Addendum, as the same may be amended from time to time by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (a), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (a) the Lease, shall be final remain in full force and binding in fixing effect and shall apply during the Fair Market Rental Value. The arbitrator shall not have the power to add to, modify, or change any of the provisions of this LeaseOption term.
Appears in 1 contract
Extended Term Rent. (aIf the Extension Option(s) The Basic Rent are timely exercised, in accordance herewith, the base rent for each Extended Term the Premises shall be based upon the then current fair market monthly rent ("Fair Market Rental Value of Rent") for the Premises as of the commencement date of the Extended Term in question applicable extended term, as determined by the agreement of the parties or, if the parties cannot agree by the date which is seven (including without limitation 7) months prior to the commencement of such inflation indicators extended term, then by an appraisal. The base rent for the Premises during each extended term shall equal one hundred percent (100%) of Fair Market Rent, if such Fair Market Rent is less than the base rent payable by Tenant for the month immediately prior to commencement of such extended term. Otherwise, base rent during such extended term shall equal the greater of ninety-five percent (95%) of Fair Market Rent or periodic increases as may then be customary One and 44/100 Dollars ($1.44) per rentable square foot of the Premises. All other terms and conditions contained in the market), determined without regard to improvements made to the Premises by Tenant or (for the Second Extended Term) to Tenant’s right to further extendLease and this First Addendum, as agreed the same may be amended from time to time by the parties. For purposes hereof, the term “Fair Market Rental Value” shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the first day of the Extended Term (the “Determination Date”). If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within two (2) months before the applicable Determination Date, then Landlord and Tenant each shall give notice (the “Determination Notice”) to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (b) below, either party may apply to the then president of the Real Estate Bar Association of Massachusetts or any successor thereto for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. The fair market rental value shall be determined by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, except that there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a commercial retail real estate broker or appraiser in the downtown Boston/financial district area. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (a), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (a) the Lease, shall remain in full force and effect and shall apply during the extension term(s). Landlord shall be final at no expense (other than applicable leasing commissions, if any) in connection with Tenant's election to extend the Lease term (including without limitation not being obligated to pay for additional tenant improvements in connection with such extended term) and binding Tenant shall accept the Premises during the extended term in fixing their then-existing condition. Notwithstanding the Fair Market Rental Value. The arbitrator foregoing, if Tenant exercises its first renewal option, Landlord, at Landlord's sole expense, shall not have touch up the power to add to, modify, or change any walls of the provisions of this Leaseleased Premises, as needed, and shampoo the carpet. If Tenant properly exercises its second renewal option, Landlord, at Landlord's sole expense, shall repaint and recarpet the leased Premises at its sole expense.
Appears in 1 contract
Extended Term Rent. (aIf the Extension Option(s) The Basic Rent are timely ------------------ exercised, in accordance herewith, the base rent for each Extended Term the Premises shall be based upon the then current fair market monthly rent ("Fair Market Rental Value of Rent") for the Premises as of the commencement date of the Extended Term in question applicable extended term, as determined by the agreement of the parties or, if the parties cannot agree by the date which is seven (including without limitation 7) months prior to the commencement of such inflation indicators extended term, then by an appraisal. The base rent for the Premises during each extended term shall equal one hundred percent (100%) of Fair Market Rent, if such Fair Market Rent is less than the base rent payable by Tenant for the month immediately prior to commencement of such extended term. Otherwise, base rent during such extended term shall equal the greater of ninety-five percent (95%) of Fair Market Rent or periodic increases as may then be customary One and 44/100 Dollars ($1.44) per rentable square foot of the Premises. All other terms and conditions contained in the market), determined without regard to improvements made to the Premises by Tenant or (for the Second Extended Term) to Tenant’s right to further extendLease and this First Addendum, as agreed the same may be amended from time to time by the parties. For purposes hereof, the term “Fair Market Rental Value” shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the first day of the Extended Term (the “Determination Date”). If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within two (2) months before the applicable Determination Date, then Landlord and Tenant each shall give notice (the “Determination Notice”) to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (b) below, either party may apply to the then president of the Real Estate Bar Association of Massachusetts or any successor thereto for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. The fair market rental value shall be determined by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, except that there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a commercial retail real estate broker or appraiser in the downtown Boston/financial district area. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within thirty (30) days after having been appointed, choose one of the determinations set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this paragraph (a), and the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered in accordance with the provisions of this paragraph (a) the Lease, shall remain in full force and effect and shall apply during the extension term(s). Landlord shall be final at no expense (other than applicable leasing commissions, if any) in connection with Tenant's election to extend the Lease term (including without limitation not being obligated to pay for additional tenant improvements in connection with such extended term) and binding Tenant shall accept the Premises during the extended term in fixing their then-existing condition. Notwithstanding the Fair Market Rental Value. The arbitrator foregoing, if Tenant exercises its first renewal option, Landlord, at Landlord's sole expense, shall not have touch up the power to add to, modify, or change any walls of the provisions of this Leaseleased Premises, as needed, and shampoo the carpet. If Tenant properly exercises its second renewal option, Landlord, at Landlord's sole expense, shall repaint and recarpet the leased Premises at its sole expense.
Appears in 1 contract
Sources: Sublease Agreement (E Stamp Corp)
Extended Term Rent. (a) The Basic Rent for each Extended Term shall be the Fair Market Rental Value of the Premises as of the commencement of the Extended Term in question (including without limitation such inflation indicators or periodic increases as may then be customary in the market), determined without regard to improvements made to the Premises by Tenant or (for the Second Extended Term) to Tenant’s right to further extend, as agreed by the parties. For purposes hereof, the term “Fair Market Rental Value” shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the first day of the Extended Term (the “Determination Date”). If Landlord and Tenant shall fail to agree upon the Fair Market Rental Value within two (2) months before the applicable Determination Date, then Landlord and Tenant each shall give notice (the “Determination Notice”) to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (b) below, either party may apply to the then president of the Real Estate Bar Association of Massachusetts or any successor thereto for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. The fair market rental value shall be determined by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, except that there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a commercial retail real estate broker or appraiser in the downtown Boston/financial district area. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, within Within thirty (30) days after having been appointedLandlord's receipt of Tenant's notice of exercise of an Option, choose one Landlord shall deliver to Tenant a proposal setting forth the monthly Base Rent for the upcoming Extended Term. Landlord's proposal shall be based upon the fair market rental for the premises in the deemed condition described in the next paragraph below. If Tenant within ten (10) business days after receipt of such proposal agrees to such proposal, the determinations amount of monthly Base Rent set forth in either Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator such proposal shall be binding upon on Landlord and Tenant. Each party Should Tenant object in writing to Landlord's proposal within ten (10) business days after receipt thereof, or fail to respond within such period (which failure shall pay its own counsel fees be deemed an objection), then during the ten (10) business day period following Tenant's objection to Landlord's proposal, Landlord and expensesTenant shall negotiate in good faith for the purpose of reaching an agreement regarding the amount of the monthly Base Rent during the upcoming Extended Term. In the event the parties fail to agree in a written instrument signed by both parties upon the amount of the monthly Base Rent for the upcoming Extended Term within such ten (10) business day period, if anythe monthly Base Rent for the upcoming Extended Term shall be determined by appraisal in the manner hereafter set forth; provided, however, that in connection with no event shall the monthly Base Rent for the upcoming Extended Term be less than the monthly Base Rent payable hereunder for the last full month of the term of this Lease (including any arbitration then current Extended Term) immediately preceding commencement of the upcoming Extended Term. For purposes of the preceding sentence, the amount of monthly Base Rent for the last month of the Lease term shall not be reduced to reflect any abatement of rent which may then be in effect. In the event it becomes necessary under this paragraph Paragraph 33.2 to determine the fair market monthly Base Rent of the premises by appraisal, Landlord and Tenant each shall appoint an experienced real estate appraiser who shall be a member of the American Institute of Real Estate Appraisers (a"AIREA"), and such appraisers shall each determine the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered fair market monthly Base Rent for the premises in accordance with the provisions below. Notwithstanding the actual physical condition of this paragraph (a) the premises at such time, such appraisers shall be final instructed to value the premises as a research and binding development "shell" space in fixing good condition ready for installation of tenant improvements. Landlord and Tenant agree that such deemed condition shall include a completed weather tight exterior, with all exterior glass and doors installed, and with all typical office building operating systems (e.g., electrical, plumbing and HVAC) installed to central supply locations in the Fair Market Rental Valuepremises, without any distribution improvements for such operating systems. Landlord and Tenant intend that such valuation shall be similar to that for a research and development facility of similar proportions, in the condition described above, located on the San Francisco Peninsula. Landlord and Tenant acknowledge that the purposes of utilizing the deemed condition described above is to exclude from the determination of the fair market monthly Base Rent for the premises the value of specialized tenant improvements installed by Tenant at its cost, but to compensate Landlord for the value of the premises as a completed shell in good condition with the improvements described above. The arbitrator appraisers shall, within twenty (20) business days after their appointment, complete their appraisals and submit their appraisal reports to Landlord and Tenant. If the fair market monthly Base Rent of the premises established in the two (2) appraisals varies by five percent (5%) or more of the higher rental, said appraisers, within ten (10) days after submission of the last appraisal, shall not have appoint a third appraiser who shall be a member of the power AIREA. Such third appraiser shall, within twenty (20) business days after his appointment, determine by appraisal the fair market monthly Base Rent of the premises, taking into account the same factors referred to add toabove, modifyand submit his appraisal report to Landlord and Tenant. The fair market monthly Base Rent determined by the third appraiser for the premises shall be controlling, unless it is less than that set forth in the lower appraisal previously obtained, in which case the rental set forth in said lower appraisal shall be controlling, or change any unless it is greater than that set forth in the higher appraisal previously obtained, in which case the rental set forth in said higher appraisal shall be controlling. If either Landlord or Tenant fails to appoint an appraiser, or if an appraiser appointed by either of them fails, after his appointment, to submit his appraisal within the provisions required period in accordance with the foregoing, the appraisal submitted by the appraiser properly appointed and timely submitting his appraisal shall be controlling. If the two appraisers appointed by Landlord and Tenant are unable to agree upon a third appraiser within the required period in accordance with the foregoing, application shall be made within twenty (20) days thereafter by either Landlord or Tenant to the AIREA, which shall appoint a member of said institute willing to serve as appraiser. The cost of all appraisals under this Leasesubparagraph shall be borne equally by Landlord and Tenant.
Appears in 1 contract
Sources: Sublease and Lease Agreement (Inhale Therapeutic Systems)
Extended Term Rent. (a) The Basic Rent As of the commencement of each Extended Term, the Monthly Installment and the method of rental adjustment (including the timing of adjustments and the basis for calculating the adjustments) for each Extended Term shall be the Fair Market Rental Value of the Premises fair market rental, as of the commencement date of the Extended Term in question (including without limitation such inflation indicators or periodic increases Term, for the Premises, as may improved, and a method and timing of rental adjustments consistent with rental adjustment practices then be customary prevailing in the market), determined without regard to improvements made to the Premises by Tenant or marketplace for comparably sized projects designed for similar uses within a three (for the Second Extended Term3) to Tenant’s right to further extend, as agreed by the parties. For purposes hereof, the term “Fair Market Rental Value” shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease mile radius of the Premises as of Premises. In the first day of event the Extended Term (the “Determination Date”). If Landlord and Tenant shall parties fail to agree upon the Fair Market Rental Value within two (2) months before the applicable Determination Date, then Landlord and Tenant each shall give notice (the “Determination Notice”) to the other setting forth their respective determinations amount of the Fair Market Rental Value, and, subject to Monthly Installment and the provisions method of paragraph (b) below, either party may apply to the then president rental adjustment for any of the Real Estate Bar Association of Massachusetts or any successor thereto for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. The fair market rental value shall be determined by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, except that there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a commercial retail real estate broker or appraiser in the downtown Boston/financial district area. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, Extended Terms within thirty (30) days after having been appointedLandlord's receipt of Tenant's notice exercising the Option for such Extended Term, choose one the Monthly Installment and the method of rental adjustment for such Extended Term shall be determined by appraisal in the manner hereafter set forth.
(b) In the event it becomes necessary under this Subparagraph 4.B.(iii)(b) to determine the fair market rent to be used as the Monthly Installment and the method and timing of rental adjustments of the determinations set forth Premises by appraisal, Landlord and Tenant each shall appoint a real estate appraiser who shall be a member of The Appraisal Institute ("TAI") and who shall have a minimum of five (5) years of commercial appraisal experience in either Landlord’s or Tenant’s Determination NoticeSanta ▇▇▇▇▇ County and such appraisers shall each determine the fair market rent for the Premises, and that choice by the arbitrator method and timing of rental adjustments taking into account the value of the Premises (excluding Tenant's Property (as defined below) which Tenant shall be binding allowed to remove upon the expiration of this Lease), the amenities provided and prevailing comparable rentals and rental adjustment practices then prevailing in the marketplace for comparably sized projects designed for similar uses within a three (3) mile radius of the Premises. Such appraisers shall, within twenty (20) business days after their appointment, complete their appraisals and submit their appraisal reports to Landlord and Tenant. Each party If the fair market rent of the Premises established in the two (2) appraisals varies by five percent (5%) or less of the higher rental, the average of the two shall pay its own counsel fees be controlling. If said fair market rent varies by more than five percent (5%) of the higher rental, said appraisers, within ten (10) days after submission of the last appraisal, shall appoint a third appraiser who shall be a member of TAI and expenseswho shall have a minimum of five (5) years of commercial appraisal experience in Santa ▇▇▇▇▇ County. Such third appraiser shall, within twenty (20) business days after his appointment, determine by appraisal the fair market rent of the Premises, taking into account the same factors referred to above, and submit his appraisal report to Landlord and Tenant. The fair market rent determined by the third appraiser for the Premises shall be averaged with the fair market rent determined by the one o the initial two appraisers that is closest to that of the third appraiser, unless the third appraiser's determination of the rent is less than that set forth in the lower appraisal previously obtained, in which case the value set forth in said lower appraisal shall be controlling, or unless it is greater than that set forth in the higher appraisal previously obtained, in which case the rental set forth in said higher appraisal shall be controlling. The method of adjusting rental periodically, including the manner and timing of such adjustments, shall be as determined by the initial two appraisers, if anythey agree on a single method; otherwise, in connection with any arbitration under this paragraph (a)it shall be as determined by the third appraiser. If either Landlord or Tenant fails to appoint an appraiser, and or if an appraiser appointed by either of them fails, after his appointment, to submit his appraisal within the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered required period in accordance with the provisions of this paragraph (a) foregoing, the appraisal submitted by the appraiser properly appointed and timely submitting his appraisal shall be final controlling. If the two appraisers appointed by Landlord and binding Tenant are unable to agree upon a third appraiser within the required period in fixing accordance with the Fair Market Rental Valueforegoing, application shall be made within twenty (20) days thereafter by either Landlord or Tenant to TAI, which shall appoint a member of said institute willing to serve as appraiser. The arbitrator Each party shall not have bear the power to add to, modify, or change any cost of their own appraiser and the cost of the provisions of third appraiser under this LeaseSubparagraph shall be borne equally by Landlord and Tenant.
Appears in 1 contract
Sources: Sublease Agreement (Covad Communications Group Inc)
Extended Term Rent. (a) The Basic Rent As of the commencement of each Extended Term, the Monthly Installment and the method of rental adjustment (including the timing of adjustments and the basis for calculating the adjustments) for each Extended Term shall be the Fair Market Rental Value of the Premises fair market rental, as of the commencement date of the Extended Term in question (including without limitation such inflation indicators or periodic increases Term, for the Premises, as may improved, and a method and timing of rental adjustments consistent with rental adjustment practices then be customary prevailing in the market), determined without regard to improvements made to the Premises by Tenant or marketplace for comparably sized projects designed for similar uses within a three (for the Second Extended Term3) to Tenant’s right to further extend, as agreed by the parties. For purposes hereof, the term “Fair Market Rental Value” shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease mile radius of the Premises as of Premises. In the first day of event the Extended Term (the “Determination Date”). If Landlord and Tenant shall parties fail to agree upon the Fair Market Rental Value within two (2) months before the applicable Determination Date, then Landlord and Tenant each shall give notice (the “Determination Notice”) to the other setting forth their respective determinations amount of the Fair Market Rental Value, and, subject to Monthly Installment and the provisions method of paragraph (b) below, either party may apply to the then president rental adjustment for any of the Real Estate Bar Association of Massachusetts or any successor thereto for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. The fair market rental value shall be determined by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, except that there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a commercial retail real estate broker or appraiser in the downtown Boston/financial district area. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, Extended Terms within thirty (30) days after having been appointedLandlord's receipt of Tenant's notice exercising the Option for such Extended Term, choose one the Monthly Installment and the method of rental adjustment for such Extended Term shall be determined by appraisal in the manner hereafter set forth.
(b) In the event it becomes necessary under this Subparagraph 4.B.(iii)(b) to determine the fair market rent to be used as the Monthly Installment and the method and timing of rental adjustments of the determinations set forth Premises by appraisal, Landlord and Tenant each shall appoint a real estate appraiser who shall be a member of The Appraisal Institute ("TAI") and who shall have a minimum of five (5) years of commercial appraisal experience in either Landlord’s or Tenant’s Determination NoticeSanta Clar▇ ▇▇▇nty and such appraisers shall each determine the fair market rent for the Premises, and that choice by the arbitrator method and timing of rental adjustments taking into account the value of the Premises (excluding Tenant's Property (as defined below) which Tenant shall be binding allowed to remove upon the expiration of this Lease), the amenities provided and prevailing comparable rentals and rental adjustment practices then prevailing in the marketplace for comparably sized projects designed for similar uses within a three (3) mile radius of the Premises. Such appraisers shall, within twenty (20) business days after their appointment, complete their appraisals and submit their appraisal reports to Landlord and Tenant. Each party If the fair market rent of the Premises established in the two (2) appraisals varies by five percent (5%) or less of the higher rental, the average of the two shall pay its own counsel fees be controlling. If said fair market rent varies by more than five percent (5%) of the higher rental, said appraisers, within ten (10) days after submission of the last appraisal, shall appoint a third appraiser who shall be a member of TAI and expenseswho shall have a minimum of five (5) years of commercial appraisal experience in Santa Clar▇ ▇▇▇nty. Such third appraiser shall, within twenty (20) business days after his appointment, determine by appraisal the fair market rent of the Premises, taking into account the same factors referred to above, and submit his appraisal report to Landlord and Tenant. The fair market rent determined by the third appraiser for the Premises shall be averaged with the fair market rent determined by the one of the initial two appraisers that is closest to that of the third appraiser, unless the third appraiser's determination of the rent is less than that set forth in the lower appraisal previously obtained, in which case the value set forth in said lower appraisal shall be controlling, or unless it is greater than that set forth in the higher appraisal previously obtained, in which case the rental set forth in said higher appraisal shall be controlling. The method of adjusting rental periodically, including the manner and timing of such adjustments, shall be as determined by the initial two appraisers, if anythey agree on a single method; otherwise, in connection with any arbitration under this paragraph (a)it shall be as determined by the third appraiser. If either Landlord or Tenant fails to appoint an appraiser, and or if an appraiser appointed by either of them fails, after his appointment, to submit his appraisal within the parties shall share equally all other expenses and fees of any such arbitration. The determination rendered required period in accordance with the provisions of this paragraph (a) foregoing, the appraisal submitted by the appraiser properly appointed and timely submitting his appraisal shall be final controlling. If the two appraisers appointed by Landlord and binding Tenant are unable to agree upon a third appraiser within the required period in fixing accordance with the Fair Market Rental Valueforegoing, application shall be made within twenty (20) days thereafter by either Landlord or Tenant to TAI, which shall appoint a member of said institute willing to serve as appraiser. The arbitrator Each party shall not have bear the power to add to, modify, or change any cost of their own appraiser and the cost of the provisions of third appraiser under this LeaseSubparagraph shall be borne equally by Landlord and Tenant.
Appears in 1 contract
Sources: Lease Agreement (Auspex Systems Inc)
Extended Term Rent. (a) The Basic FMV Rent for each Extended Term shall be determined by agreement between Landlord and Tenant or, failing agreement by the Fair Market Rental Value commencement date of the Premises as applicable Extended Term, Landlord and Tenant shall each select a Qualified Appraiser within five (5) days of the commencement date of the such Extended Term in question (including without limitation such inflation indicators or periodic increases as may then be customary in the market), determined without regard to improvements made and send Notice thereof to the Premises by Tenant or other. If either party shall fail to select a Qualified Appraiser within such five (for 5) day period, such party shall be deemed to have accepted the Second Extended Term) to Tenant’s right to further extend, as agreed FMV Rent determined by the parties. For purposes hereof, the term “Fair Market Rental Value” shall mean the annual fixed rent that a willing tenant would pay and a willing landlord would accept, each acting in its own best interest and without duress, in an arms-length lease of the Premises as of the first day of the Extended Term (the “Determination Date”)other party’s Qualified Appraiser. If Landlord and Tenant shall each select a Qualified Appraiser and send Notice thereof to the other within such five (5) day period, but the two appraisers shall fail to agree upon the Fair Market Rental Value within two (2) months before the applicable Determination Date, then Landlord and Tenant each shall give notice (the “Determination Notice”) to the other setting forth their respective determinations of the Fair Market Rental Value, and, subject to the provisions of paragraph (b) below, either party may apply to the then president of the Real Estate Bar Association of Massachusetts or any successor thereto for the designation of an arbitrator satisfactory to both parties to render a final determination of the Fair Market Rental Value. The fair market rental value shall be determined by arbitration in accordance with the commercial arbitration rules of the American Arbitration Association, except that there shall be only one arbitrator, who shall have had at least ten (10) years’ experience as a commercial retail real estate broker or appraiser in the downtown Boston/financial district area. The arbitrator shall conduct such hearings and investigations as the arbitrator shall deem appropriate and shall, FMV Rent within thirty (30) days after having been appointedof their appointment, choose one then either Landlord or Tenant, on behalf of both, may then request the American Arbitration Association to select a third Qualified Appraiser, in which event the two appraisers shall submit their appraisals to the third appraiser in writing, and such third appraiser shall determine which of the determinations set forth in either two appraisals is the FMV Rent. The costs (other than Landlord’s or Tenant’s Determination Notice, and that choice by the arbitrator shall be binding upon Landlord and Tenant. Each party shall pay its own counsel fees and expenses, if any, fees) incurred in connection with any arbitration under this paragraph (a), such appraisal process shall be borne by Tenant and shall be included as part of the parties Additional Charges. If FMV Rent shall share equally all other expenses and fees not have been determined as of the commencement date of any Extended Term, Tenant shall thereafter, on an interim basis, pay Minimum Rent in an amount determined as though such arbitrationExtended Term were a continuation of the Fixed Term or Extended Term, as the case may be, with the Minimum Rent to be increased for such Extended Term in accordance with Section 3.1.1(b). The Upon the determination rendered of the FMV Rent, (1) Minimum Rent shall be readjusted in accordance with the provisions of this paragraph Section 3.1.1(b), (a2) such readjustment shall be final retroactively applied to the commencement date of such Extended Term, and binding (3) Tenant shall pay to Landlord, in fixing addition to the Fair Market Rental Value. The arbitrator shall not have Minimum Rent due on such date pursuant to the power to add to, modify, or change any of the provisions terms of this LeaseAgreement, any outstanding Minimum Rent due as a result of such readjustment.
Appears in 1 contract