Common use of FMV DETERMINATION Clause in Contracts

FMV DETERMINATION. The FMV with respect to each of the Long-Term Space Renewal Terms shall be determined by the mutual written agreement of Landlord and Tenant. In the event that Landlord and Tenant shall not have reached mutual agreement as to the FMV on or before the day that is sixty (60) days following the Notice Date, then Landlord and Tenant each shall, no later than the day that is seventy-five (75) days following the Notice Date, select a Real Estate Appraiser (as hereinafter defined). If either party shall fail to so appoint a Real Estate Appraiser, the one Real Estate Appraiser so appointed shall proceed to determine the FMV. In the event that the Real Estate Appraisers selected by Landlord and Tenant agree as to the FMV, said determination shall be binding on Landlord and Tenant. In the event that the Real Estate Appraisers selected by Landlord and Tenant cannot agree as to the FMV on or before the day that is one hundred five (105) days following the Notice Date, then said Real Estate Appraisers shall jointly select a third Real Estate Appraiser, provided that if they cannot agree on the third Real Estate Appraiser on or before the day that is one hundred twenty (120) days following the Notice Date, then said third Real Estate Appraiser shall be selected in accordance with the rules prescribed by the American Arbitration Association in New York, New York (or any successor thereto). The FMV shall then be determined by the third Real Estate Appraiser no later than the day that is one hundred fifty (150) days following the Notice Date and said determination shall be binding on Landlord and Tenant. The appraisal shall be conducted in accordance with the provisions of this Section and, to the extent not inconsistent herewith, in accordance with the prevailing rules of the American Arbitration Association in New York (or any successor thereto). The final determination of the Real Estate Appraiser(s) shall be in writing and shall be binding and conclusive upon the parties, each of which shall receive counterpart copies thereof. In rendering such decision the Real Estate Appraiser(s) shall not add to, subtract from or otherwise modify the provisions of this Lease. Landlord and Tenant shall each pay the fees of their respective Real Estate Appraisers. The fees of the third Real Estate Appraiser, if any, shall be divided evenly. If by the commencement of the applicable Long-Term Space Renewal Term, or the date on which the ROFO Space shall be included in the Premises, as applicable, the Minimum Rent pursuant to this Paragraph D shall not have been determined by the Real Estate Appraiser(s), Tenant shall pay Minimum Rent hereunder until such determination is made at a rate reasonably estimated by Landlord as the appropriate Minimum Rent for the Premises for such period, subject to adjustment upon determination of such Minimum Rent whether by appraisal by the Real Estate Appraiser(s) as hereinabove provided or by agreement of Landlord and Tenant. Upon such determination, Tenant shall promptly pay to Landlord any underpayment of Minimum Rent and, in the event of any overpayment of Minimum Rent during such period, Landlord shall credit the amount of such overpayment of Minimum Rent against the payments of Minimum Rent next coming due until such time as the overpayment has been fully credited to Tenant.

FMV DETERMINATION. The initial determination of the FMV Amount shall be made by Landlord. Landlord shall give notice (a “Rent Notice”) to Tenant of the FMV Amount determined by Landlord on or before the date which is fifteen (15) months prior to the Extension Term Commencement Date. The FMV with respect Amount so determined by Landlord shall be deemed conclusive and binding upon Tenant unless on or before the date (the “Determination Date”) which is thirty (30) days after Landlord gives to each Tenant the Rent Notice either (a) Tenant gives to Landlord notice (the “FMV Dispute Notice”) that Tenant disputes the FMV Amount so determined by Landlord, which FMV Dispute Notice may, but shall not be required to, set forth Tenant’s determination of the Long-Term Space Renewal Terms FMV Amount, or (b) Tenant fails to respond to the Rent Notice. If on or before the Determination Date Tenant gives to Landlord a FMV Dispute Notice or fails to respond to the Rent Notice, then Tenant shall be deemed to have disputed Landlord’s determination of the FMV Amount, whereupon Landlord and Tenant shall have thirty (30) days after the Determination Date to negotiate, execute and deliver a written agreement (an “FMV Agreement”) setting forth the Base Rent for the Extension Term. If Landlord and Tenant fail to execute and deliver an FMV Agreement within thirty (30) days after the Determination Date, the FMV Amount shall be determined by the mutual written agreement of Landlord and Tenant. In the event that Landlord and Tenant shall not have reached mutual agreement as to the FMV on or before the day that is sixty (60) days following the Notice Date, then Landlord and Tenant each shall, no later than the day that is seventy-five (75) days following the Notice Date, select a Real Estate Appraiser (as hereinafter defined). If either party shall fail to so appoint a Real Estate Appraiser, the one Real Estate Appraiser so appointed shall proceed to determine the FMV. In the event that the Real Estate Appraisers selected by Landlord and Tenant agree as to the FMV, said determination shall be binding on Landlord and Tenant. In the event that the Real Estate Appraisers selected by Landlord and Tenant cannot agree as to the FMV on or before the day that is one hundred five (105) days following the Notice Date, then said Real Estate Appraisers shall jointly select a third Real Estate Appraiser, provided that if they cannot agree on the third Real Estate Appraiser on or before the day that is one hundred twenty (120) days following the Notice Date, then said third Real Estate Appraiser shall be selected in accordance with the rules prescribed by the American Arbitration Association in New York, New York (or any successor thereto). The FMV shall then be determined by the third Real Estate Appraiser no later than the day that is one hundred fifty (150) days following the Notice Date and said determination shall be binding on Landlord and Tenant. The appraisal shall be conducted in accordance with the provisions of this Section and, to the extent not inconsistent herewith, in accordance with the prevailing rules of the American Arbitration Association in New York (or any successor thereto). The final determination of the Real Estate Appraiser(s) shall be in writing and shall be binding and conclusive upon the parties, each of which shall receive counterpart copies thereof. In rendering such decision the Real Estate Appraiser(s) shall not add to, subtract from or otherwise modify the provisions of this Lease. Landlord and Tenant shall each pay the fees of their respective Real Estate Appraisers. The fees of the third Real Estate Appraiser, if any, shall be divided evenly. If by the commencement of the applicable Long-Term Space Renewal Term, or the date on which the ROFO Space shall be included in the Premises, as applicable, the Minimum Rent arbitration pursuant to this Paragraph D shall not have been determined by the Real Estate Appraiser(s), Tenant shall pay Minimum Rent hereunder until such determination is made at a rate reasonably estimated by Landlord as the appropriate Minimum Rent for the Premises for such period, subject to adjustment upon determination of such Minimum Rent whether by appraisal by the Real Estate Appraiser(s) as hereinabove provided or by agreement of Landlord and Tenant. Upon such determination, Tenant shall promptly pay to Landlord any underpayment of Minimum Rent and, in the event of any overpayment of Minimum Rent during such period, Landlord shall credit the amount of such overpayment of Minimum Rent against the payments of Minimum Rent next coming due until such time as the overpayment has been fully credited to TenantSection 41.06 below.

FMV DETERMINATION. The FMV with respect to each initial determination of the Long-Term Space Renewal Terms Offer FMV Amount shall be made by Landlord. Landlord shall give notice (a “Offer Rent Notice”) to Tenant of the Offer FMV Amount determined by Landlord on or before the date which is thirty (30) days following the date Tenant delivers the applicable Election to Lease Notice. The Offer FMV Amount so determined by Landlord shall be deemed conclusive and binding upon Tenant unless on or before the date (the “Offer Determination Date”) which is thirty (30) days after Landlord gives to Tenant the Offer Rent Notice either (a) Tenant gives to Landlord notice (the “Offer FMV Dispute Notice”) that Tenant disputes the Offer FMV Amount so determined by Landlord, which Offer FMV Dispute Notice may, but shall not be required to, set forth Tenant’s determination of the Offer FMV Amount, or (b) Tenant fails to respond to the Offer Rent Notice. If on or before the Offer Determination Date Tenant gives to Landlord an Offer FMV Dispute Notice or fails to respond to the Offer Rent Notice, then Tenant shall be deemed to have disputed Landlord’s determination of the Offer FMV Amount, whereupon Landlord and Tenant shall have thirty (30) days after the Offer Determination Date to negotiate, execute and deliver a written agreement (an “Offer FMV Agreement”) setting forth the Base Rent for the Extension Term. If Landlord and Tenant fail to execute and deliver an Offer FMV Agreement within thirty (30) days after the Offer Determination Date, the Offer FMV Amount shall be determined by the mutual written agreement of Landlord and Tenant. In the event that Landlord and Tenant shall not have reached mutual agreement as to the FMV on or before the day that is sixty (60) days following the Notice Date, then Landlord and Tenant each shall, no later than the day that is seventy-five (75) days following the Notice Date, select a Real Estate Appraiser (as hereinafter defined). If either party shall fail to so appoint a Real Estate Appraiser, the one Real Estate Appraiser so appointed shall proceed to determine the FMV. In the event that the Real Estate Appraisers selected by Landlord and Tenant agree as to the FMV, said determination shall be binding on Landlord and Tenant. In the event that the Real Estate Appraisers selected by Landlord and Tenant cannot agree as to the FMV on or before the day that is one hundred five (105) days following the Notice Date, then said Real Estate Appraisers shall jointly select a third Real Estate Appraiser, provided that if they cannot agree on the third Real Estate Appraiser on or before the day that is one hundred twenty (120) days following the Notice Date, then said third Real Estate Appraiser shall be selected in accordance with the rules prescribed by the American Arbitration Association in New York, New York (or any successor thereto). The FMV shall then be determined by the third Real Estate Appraiser no later than the day that is one hundred fifty (150) days following the Notice Date and said determination shall be binding on Landlord and Tenant. The appraisal shall be conducted in accordance with the provisions of this Section and, to the extent not inconsistent herewith, in accordance with the prevailing rules of the American Arbitration Association in New York (or any successor thereto). The final determination of the Real Estate Appraiser(s) shall be in writing and shall be binding and conclusive upon the parties, each of which shall receive counterpart copies thereof. In rendering such decision the Real Estate Appraiser(s) shall not add to, subtract from or otherwise modify the provisions of this Lease. Landlord and Tenant shall each pay the fees of their respective Real Estate Appraisers. The fees of the third Real Estate Appraiser, if any, shall be divided evenly. If by the commencement of the applicable Long-Term Space Renewal Term, or the date on which the ROFO Space shall be included in the Premises, as applicable, the Minimum Rent arbitration pursuant to this Paragraph D shall not have been determined by the Real Estate Appraiser(s), Tenant shall pay Minimum Rent hereunder until such determination is made at a rate reasonably estimated by Landlord as the appropriate Minimum Rent for the Premises for such period, subject to adjustment upon determination of such Minimum Rent whether by appraisal by the Real Estate Appraiser(s) as hereinabove provided or by agreement of Landlord and Tenant. Upon such determination, Tenant shall promptly pay to Landlord any underpayment of Minimum Rent and, in the event of any overpayment of Minimum Rent during such period, Landlord shall credit the amount of such overpayment of Minimum Rent against the payments of Minimum Rent next coming due until such time as the overpayment has been fully credited to TenantSection 42.04 below.