Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten (10) days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent. 2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be a real estate appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.” 2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel. 2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof. 2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant. 2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator. 2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator. 2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally. 2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 8 contracts
Sources: Lease (Oric Pharmaceuticals, Inc.), Lease (Oric Pharmaceuticals, Inc.), Lease (Tenaya Therapeutics, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option objects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) business days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, Rent within ten five (105) days after the Outside Agreement Datebusiness days, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.3.5.1 through 2.2.3.7, 2.3.5.7 below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.3.5.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate appraiser broker licensed in the State of Utah in good standing who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other class A life sciences buildings projects comparable to the Project located in within the South San Francisco market areagreater Salt Lake City market. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option RentRent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 2.3.3 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 2.3.5.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitratorsarbitrators, except provided that neither the third arbitrator shall not be then representing Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 2.3.5.3 The three arbitrators shall, shall within thirty (30) days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, Rent and shall notify Landlord and Tenant thereof.
2.2.3.4 2.3.5.4 The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 2.3.5.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 2.3.5.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Leasea third arbitrator, or if he both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or she refuses any arbitrator shall be dismissed and the matter to actbe decided shall be forthwith submitted to binding, either party may petition any judge having jurisdiction over final, non-appealable arbitration before a JAMS arbitrator mutually agreed upon by Landlord and Tenant. If Landlord and Tenant cannot agree on the arbitrator, the parties will so inform JAMS, who will then be authorized to appoint such arbitratorselect a JAMS judge to arbitrate the matter.
2.2.3.7 2.3.5.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 6 contracts
Sources: Office Lease (Recursion Pharmaceuticals, Inc.), Office Lease (Recursion Pharmaceuticals, Inc.), Office Lease (Recursion Pharmaceuticals, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten (10) days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to accepted Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be a real estate appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 5 contracts
Sources: Lease (Biotech Acquisition Co), Lease (Pliant Therapeutics, Inc.), Lease (Pliant Therapeutics, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty at least sixty (3060) days thereafterbefore the Lease Expiration Date. If Tenant, on or before the date which is ten (10) business days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) business days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) days after the Outside Agreement Datebusiness days, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be be, at the option of the appointing party, a real estate broker or appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the leasing or appraisal (not currently or formerly in the employ of Landlord or Tenant), as the case may be, of other class A life sciences buildings located in the South San Francisco Durham, North Carolina market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) business days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo Durham County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo Durham County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 2 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 4 contracts
Sources: Lease Agreement (Precision Biosciences Inc), Lease (Precision Biosciences Inc), Lease (Precision Biosciences Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of but rejects the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of set forth in the Option RentRent Notice pursuant to Section 2.2.3, in good faith objects to Landlord’s determination of the Option Rentabove, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection upon the Option Rent applicable to the Option Rent Term on or before the date that is one hundred eighty (180) days prior to the expiration of the initial Lease Term (the “Outside Agreement Date”), then Tenant the Option Rent shall have the right to withdraw its exercise of the option be determined by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease arbitration pursuant to the terms of this Section 2.2 shall be of no further force or effect2.2.4. If Tenant does not withdraw its exercise of the extension option, each Each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) days after following the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.4.1 through 2.2.3.72.2.4.4, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate MAI appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal appraising and/or leasing of other first class A life sciences buildings located office properties in the South San Francisco market areavicinity of the Building. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option RentRent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positionspositions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable). The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 2.2.4.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, Arbitrators except that (i) neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant or their affiliates during the five (5) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel. Each party shall pay for the costs of its own Advocate Arbitrator and fifty percent (50%) of the cost of the Neutral Arbitrator.
2.2.3.3 The three arbitrators shall, within thirty 2.2.4.3 Within ten (3010) days of following the appointment of the Neutral Arbitrator, reach Landlord and Tenant shall enter into an arbitration agreement (the “Arbitration Agreement”) which shall set forth the following:
2.2.4.3.1 Each of Landlord’s and Tenant’s best and final and binding determination of the Option Rent exchanged by the parties pursuant to Section 2.2.4, above;
2.2.4.3.2 An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, and shall require the Neutral Arbitrator to whether demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant;
2.2.4.3.3 Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
2.2.4.3.4 That Landlord and Tenant shall use each have the right to submit to the Neutral Arbitrator (with a copy to the other party), on or before the date that occurs fifteen (15) days following the appointment of the Neutral Arbitrator, an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord or Tenant, as the case may be, in support of Landlord’s or Tenant’s respective determination of Option Rent (the “Briefs”);
2.2.4.3.5 That within five (5) business days following the exchange of Briefs, Landlord and Tenant shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s Brief (the “Rebuttals”); provided, however, such Rebuttals shall be limited to the facts and arguments raised in the other party’s Brief and shall identify clearly which argument or fact of the other party’s Brief is intended to be rebutted;
2.2.4.3.6 The date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Advocate Arbitrators, Landlord and Tenant, and each party’s applicable consultants, which date shall in any event be within thirty (30) days following the appointment of the Neutral Arbitrator;
2.2.4.3.7 That no discovery shall take place in connection with the arbitration, other than to verify the factual information that is presented by Landlord or Tenant;
2.2.4.3.8 That the Neutral Arbitrator shall not be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant, except that the Neutral Arbitrator shall be permitted to visit the Property and the buildings containing the Comparable Transactions;
2.2.4.3.9 The specific persons that shall be allowed to attend the arbitration;
2.2.4.3.10 Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed two (2) hours (“Tenant’s Initial Statement”);
2.2.4.3.11 Following Tenant’s Initial Statement, Landlord shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed two (2) hours (“Landlord’s Initial Statement”);
2.2.4.3.12 Following Landlord’s Initial Statement, Tenant shall have up to one (1) additional hour to present additional arguments and/or to rebut the arguments of Landlord (“Tenant’s Rebuttal Statement”);
2.2.4.3.13 Following Tenant’s Rebuttal Statement, Landlord shall have up to one (1) additional hour to present additional arguments and/or to rebut the arguments of Tenant (“Landlord’s Rebuttal Statement”);
2.2.4.3.14 That, not later than ten (10) days after the date of the arbitration, the Neutral Arbitrator shall render a decision (the “Ruling”) indicating whether Landlord’s or Tenant’s submitted Option Rent is closer to the Option Rent;
2.2.4.3.15 That following notification of the Ruling, and Landlord’s or Tenant’s submitted Option Rent determination, whichever is selected by the Neutral Arbitrator as being closer to the Option Rent shall notify Landlord and Tenant thereof.become the then applicable Option Rent; and
2.2.3.4 The 2.2.4.3.16 That the decision of the majority of the three arbitrators Neutral Arbitrator shall be binding upon on Landlord and Tenant. If a date by which an event described in Section 2.2.4.3, above, is to occur falls on a weekend or a holiday, the date shall be deemed to be the next business day.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 2.2.4.4 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the applicable Option Term, Tenant shall be required to pay the Option Rent Rent, initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 3 contracts
Sources: Office Lease (Square, Inc.), Office Lease (Square, Inc.), Office Lease (Square, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty on or before the Lease Expiration Date (30) days thereafterthe “Landlord’s Option Rent Calculation”). If Tenant, on or before the date which is ten (10) business days following the date upon which Tenant receives Landlord’s determination of the Option RentRent Calculation, in good faith objects to Landlord’s determination of the Option RentRent Calculation, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) business days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten (10) days after the Outside Agreement Datebusiness days, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 1.3.1 through 2.2.3.71.3.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 1.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be be, at the option of the appointing party, a real estate broker, appraiser or attorney who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing or appraisal, as the case may be, of other class A life sciences buildings located in the South San Francisco market areaComparable Buildings. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 1.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) business days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 1.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) business days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 1.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 1.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 1.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County Salt Lake City to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 1.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 1.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County Salt Lake City to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 1.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 1.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 1.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenantat 103% of rate in effect on the last day of the initial Lease Term, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 3 contracts
Sources: Lease (Myriad Genetics Inc), Lease (Myriad Genetics Inc), Lease (Myriad Genetics Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant ▇▇▇▇▇▇ receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten (10) days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant ▇▇▇▇▇▇ fails to object to Landlord▇▇▇▇▇▇▇▇’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be a real estate appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord▇▇▇▇▇▇▇▇’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord ▇▇▇▇▇▇▇▇ and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord▇▇▇▇▇▇▇▇’s counsel and Tenant▇▇▇▇▇▇’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 3 contracts
Sources: Lease Agreement, Lease (Denali Therapeutics Inc.), Lease (Denali Therapeutics Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten (10) days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be a real estate appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco Redwood City market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 3 contracts
Sources: Lease (Relypsa Inc), Lease Agreement (Relypsa Inc), Lease (Relypsa Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option objects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of set forth in the Option Rent, in good faith objects to Landlord’s determination of the Option RentRent Notice, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection to the Option Rent Rent, (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, Rent within ten fifteen (1015) days after following the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 3.2.4.1 through 2.2.3.7, 3.2.4.7 below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 3.2.3.1 Landlord and Tenant shall each appoint one (1) arbitrator who shall by profession be a real estate appraiser broker, MAI Appraiser, or attorney who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing or appraising of other class A life sciences buildings located commercial high-rise properties in the South San Francisco market Diego, California area. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option RentRent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 3.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 3.2.3.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third (3rd) arbitrator (“Neutral Arbitrator”) who shall be an MAI appraiser, but otherwise qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) arbitrators.
2.2.3.3 3.2.3.3 The three (3) arbitrators shall, shall within thirty (30) days of the appointment of the Neutral Arbitrator, third (3rd) arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 3.2.3.4 The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 3.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) days after the applicable Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 3.2.3.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitratora third (3rd) arbitrator, or both parties fail to appoint an arbitrator, then either party may petition the presiding judge appointment of the Superior Court third (3rd) arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of San Mateo County to appoint the Neutral ArbitratorAmerican Arbitration Association, but subject to criteria the instruction set forth in this Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator3.2.3.
2.2.3.7 3.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 3 contracts
Sources: Office Building Lease (Cirius Therapeutics, Inc.), Office Building Lease (Cirius Therapeutics, Inc.), Office Building Lease (Cirius Therapeutics, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty at least sixty (3060) days thereafterbefore the Lease Expiration Date. If Tenant, on or before the date which is ten (10) business days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) business days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) days after the Outside Agreement Datebusiness days, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected accepted to Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be be, at the option of the appointing party, a real estate broker or appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the leasing or appraisal (not currently or formerly in the employ of Landlord or Tenant), as the case may be, of other class A life sciences buildings located in the South San Francisco Durham, North Carolina market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) business days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo Durham County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo Durham County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 2 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 2 contracts
Sources: Lease Agreement (Heat Biologics, Inc.), Lease (Heat Biologics, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option objects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right may give written notice to withdraw Landlord that either (1) Tenant is withdrawing its exercise of the option by delivering written notice thereof to Landlord within five Option (5) days thereafterthe “Revocation Notice”), in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 Option shall be null and void and of no further force or effect, or (2) Tenant desires to have the Option Rent determined by appraisal pursuant to the procedures set forth in subparagraphs (i) through (iv) below (“Appraisal Notice”). If Tenant does not withdraw its exercise of fails to give the extension optionAppraisal Notice or the Revocation Notice on or before the Outside Agreement Date, each party shall make a separate determination of the Option Rent, as Rent applicable during the case may be, within Option Term shall be the amount set forth in the Option Rent Notice.
(i) Within ten (10) days after Landlord’s receipt of the Outside Agreement Date, and such determinations shall be submitted to arbitration Appraisal Notice in accordance with Sections 2.2.3.1 through 2.2.3.7this Paragraph, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be agree upon a list of three (3) independent, unaffiliated real estate appraiser who shall have been active over brokers with at least ten (10) years’ full-time experience brokering commercial properties within ten (10) miles of the Industrial Center. Within five (5) year period ending on days after agreement upon the date list of such appointment in brokers, Landlord and Tenant shall meet and each shall have the appraisal of other class A life sciences buildings located in the South San Francisco market area. The determination right to disqualify one (1) of the arbitrators shall be limited solely to brokers until only one (1) broker (the issue of whether Landlord’s “Arbitrator”) has not been disqualified by either Landlord or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within .
(ii) Within fifteen (15) days after the Outside Agreement Date. Landlord appointment of the Arbitrator, the Parties shall each submit their determination of the Option Rent to the Arbitrator and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positionsthe Arbitrator shall independently determine the Option Rent. The arbitrators so selected Option Rent shall equal the Option Rent submitted by Landlord and or Tenant that is closest to the Option Rent determined by the Arbitrator. The Arbitrator shall not divulge to Landlord or Tenant the Option Rent determined by the Arbitrator until both Parties instruct it to do so in writing. The determination of the Arbitrator in accordance with this subparagraph (c) shall be deemed “Advocate Arbitratorsfinal and binding on the Parties and a judgment may be rendered thereon in a court of competent jurisdiction.”
2.2.3.2 The two (2iii) Advocate Arbitrators so appointed shall be specifically required pursuant If the Parties fail to an engagement letter within select the three (3) qualified brokers or the Arbitrator, either Landlord or Tenant by giving ten (10) days days’ notice to the other Party, can apply to the American Arbitration Association office in the county in which the Premises is located for the selection of the date of Arbitrator who meets the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counselqualifications stated in this Paragraph.
2.2.3.3 The three arbitrators shall, within thirty (30iv) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In . During the event that period requiring the adjustment of monthly Base Rent to Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option TermRent, Tenant shall be required pay, as monthly Base Rent pending such determination, one hundred five percent (105%) of the monthly Base Rent in effect for the Premises immediately prior to pay the Option Rent initially provided by Landlord to Tenantsuch adjustment; provided, and however, that upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with pay Landlord the actual amounts difference between the amount of monthly Base Rent Tenant actually paid and Option Rent due, and immediately upon the appropriate party determination of the Option Rent. Any amount of Base Rent Tenant has actually paid to Landlord which exceeds the Option Rent determined in accordance herewith shall make any corresponding payment to the other partybe credited against Tenant’s future Option Rent obligations.
Appears in 2 contracts
Sources: Standard Form Industrial Net Lease (Cue Health Inc.), Standard Form Industrial Net Lease (Cue Health Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) business days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) business days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten (10) days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to accepted Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be a real estate appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal appraisal, of other class A life sciences buildings located in the South San Francisco market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 2 contracts
Sources: Lease (Annexon, Inc.), Lease (Annexon, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within (the “Option Rent Notice”) on or before the date that is thirty (30) days thereafterafter Tenant’s delivery of the Option Exercise Notice. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives LandlordTenant’s determination receipt of the Option RentRent Notice, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s objection to the Option Rent Rent, (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option RentRent (which, as in Landlord’s case, need not be the case may berent originally set forth in the Option Rent Notice), within ten five (105) days after the Outside Agreement Datebusiness days, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2,2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be be, at the option of the appointing party, a real estate appraiser appraiser, broker or attorney who shall have been active over the five ten (510) year period ending on the date of such appointment in the appraisal leasing or appraisal, as the case may be, of other class A life sciences buildings located commercial mid-rise properties in the South San Francisco market areaarea containing the Comparable Buildings. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that (i) such Neutral Arbitrator shall not be an appraiser, and (ii) neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators parties shall, in connection with the determination of the Option Rent, within thirty ten (3010) business days following the selection of the Neutral Arbitrator, enter into an arbitration agreement (the “Arbitration Agreement”) which shall set forth the following: (i) Landlord’s binding Option Rent calculation and Tenant’s binding Option Rent calculation, (ii) an agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, (iii) instructions to be followed by the Neutral Arbitrator when conducting such arbitration, which instructions shall be mutually and reasonably prepared by Landlord and Tenant and which instructions shall be consistent with the terms and conditions of this Lease, (iv) that Landlord and Tenant shall each have the right to submit to the Advocate Arbitrator (with a copy to the other party), on or before a date agreed upon by Landlord and Tenant, an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord and Tenant, as the case may be, in support of Landlord’s or Tenant’s respective Option Rent determination (the “Briefs”), (v) that within three (3) business days following Landlord’s and Tenant’s exchange of Briefs, Landlord and Tenant shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s Brief (the “First Rebuttals”); provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party’s Brief and shall identify clearly which argument or fact of the other party’s Brief is intended to be rebutted, (vi) that within three (3) business days following Landlord’s and/or Tenant’s receipt of the other party’s First Rebuttal, Landlord and Tenant, as applicable, shall have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s First Rebuttal (the “Second Rebuttals”); provided, however, such Second Rebuttals shall be limited to the facts and arguments raised in the other party’s First Rebuttal and shall identify clearly which argument or fact of the other party’s First Rebuttal is intended to be rebutted, (vii) the date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, which date shall in any event be within fifteen (15) business days following the appointment of the Neutral Arbitrator, reach (viii) that no discovery shall take place in connection with the arbitration, (ix) that neither the Neutral Arbitrator shall be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant (except that the Neutral Arbitrator, with representatives from each of Landlord and Tenant, shall have the right to visit the Comparable Buildings), (x) the specific persons that shall be allowed to attend the arbitration, (xi) Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours (“Tenant’s Initial Statements”), (xii) following Tenant’s Initial Statement, Landlord shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours (“Landlord’s Initial Statements”), (xiii) following Landlord’s Initial Statements, Tenant shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Landlord (“Tenant’s Rebuttal Statement”), (xiv) following Tenant’s Rebuttal Statement, Landlord shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Tenant (“Landlord’s Rebuttal Statement”), (xv) that the Neutral Arbitrator shall render a decision as to (“Award”) indicating whether the parties shall use Landlord’s or Tenant’s submitted Option Market Rent is closest to the Market Rent as determined by the Neutral Arbitrator within ten (10) business days following the arbitration, (xvi) that following notification of the Award, the Landlord’s or Tenant’s submitted Market Rent determination, whichever is selected by the Neutral Arbitrator as being closest to the Market Rent, shall become the then applicable Market Rent, and (xvii) that the decision of the Neutral Arbitrator shall notify be binding on Landlord and Tenant thereofTenant. Each of the parties shall bear one-half (1/2) the cost of appointing the Neutral Arbitrator and of paying the Neutral Arbitrator’s fees.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the she criteria in Section 2.2.3.1 2.2.4.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 2.2.3.5 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 2.2.3.2 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 2.2.3.6 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 2.2.3.7 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 2 contracts
Sources: Sublease Agreement (Oportun Financial Corp), Sublease Agreement (Oportun Financial Corp)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafteron or before the Lease Expiration Date. If Tenant, on or before the date which is ten fifteen (1015) business days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten fifteen (1015) days after the Outside Agreement Datebusiness days, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to accepted Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be be, at the option of the appointing party, a real estate broker, appraiser or attorney who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing or appraisal, as the case may be, of other class A life sciences buildings located in the South San Francisco City of Cambridge, Massachusetts, market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge then-President of the Superior Court of San Mateo County Greater Boston Real Estate Board to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge then-President of the Superior Court of San Mateo County Greater Boston Real Estate Board to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 2 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 2 contracts
Sources: Lease Agreement (Jounce Therapeutics, Inc.), Lease Agreement (Jounce Therapeutics, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option objects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten thirty (1030) days after the Outside Agreement Datebusiness days, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.4.1 through 2.2.3.72.2.4.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate appraiser broker or lawyer who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other class A life sciences buildings located in the South San Francisco market areaBuilding and Comparable Buildings. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Option Rent Rent, is the closest to the actual Option RentRent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 2.2.4.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitratorsarbitrators.
2.2.4.3 Landlord and Tenant shall each have the right to submit to the arbitrators (with a copy to the other party), except on or before the date that neither occurs fifteen (15) days following the appointment of the last arbitrator, an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord or Tenant, as the case may be, in support of Landlord’s or Tenant’s respective determination of the Option Rent (the “Briefs”). Within five (5) business days following the exchange of Briefs, Landlord and Tenant or either parties’ Advocate Arbitrator mayshall each have the right to provide the arbitrators (with a copy to the other party) with a written rebuttal to the other party’s Brief (the “Rebuttals”); provided, directly or indirectlyhowever, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator such Rebuttals shall be retained via an engagement letter jointly prepared by Landlordlimited to the facts and arguments raised in the other party’s counsel Brief and Tenantshall identify clearly which argument or fact of the other party’s counselBrief is intended to be rebutted. At the option of the arbitrator(s), the arbitrator(s) may consult experts and competent authorities to verify factual information set forth in the Briefs or Rebuttals.
2.2.3.3 2.2.4.4 The three arbitrators shall, shall within thirty (30) days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 2.2.4.5 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 2.2.4.6 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) days after the applicable Outside Agreement Date, then either party may petition the presiding judge arbitrator timely appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 2.2.4.7 If the two (2) Advocate Arbitrators arbitrators appointed by the parties fail to agree upon and appoint the Neutral Arbitratora third arbitrator, or both parties fail to appoint an arbitrator, then either party the third arbitrator or the arbitrator, as the case may petition be, will be appointed by the then presiding judge of the King County Superior Court upon the application of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition (and any judge having jurisdiction over such arbitrator so selected shall be required to meet the parties to appoint such arbitratorrequirements of Section 2.2.4.1, above).
2.2.3.7 The cost 2.2.4.8 Each party shall pay the charges of the arbitrator appointed by it. All other costs of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that if the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay by arbitration is the Option Rent initially provided specified by Tenant in its notice given pursuant to Section 2.2.4, and by Tenant if the Option Rent determined by arbitration is the Option Rent specified by Landlord in its notice given pursuant to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other partySection 2.2.3.
Appears in 2 contracts
Sources: Office Lease (Apptio Inc), Office Lease (Apptio Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option Option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of Extend but rejects (or is deemed to reject) the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of set forth in the Option RentRent Notice pursuant to Section 2.2.3, in good faith objects to Landlord’s determination of the above (or if Tenant did not deliver an Option RentInterest Notice, and therefore Landlord did not deliver an Option Rent Notice), then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection upon the Option Rent applicable to the Option Rent Term on or before the date that is ninety (90) days prior to the expiration of the initial Lease Term or the first Option Term, as applicable (the “Outside Agreement Date”), then Tenant the Option Rent shall have the right to withdraw its exercise of the option be determined by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease arbitration pursuant to the terms of this Section 2.2 shall be of no further force or effect2.2.4. If Tenant does not withdraw its exercise of the extension option, each Each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) days after following the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.4.1 through 2.2.3.72.2.4.4, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate MAI appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal appraising and/or leasing of other first class A life sciences buildings located office properties in the South San Francisco market areavicinity of the Building. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option RentRent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positionspositions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable). The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 2.2.4.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, Arbitrators except that (i) neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant or their affiliates during the five (5) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel. Each party shall pay for the costs of its own Advocate Arbitrator and fifty percent (50%) of the cost of the Neutral Arbitrator.
2.2.3.3 The three arbitrators shall, within thirty 2.2.4.3 Within ten (3010) days of following the appointment of the Neutral Arbitrator, reach Landlord and Tenant shall enter into an arbitration agreement (the “Arbitration Agreement”) which shall set forth the following:
2.2.4.3.1 Each of Landlord’s and Tenant’s best and final and binding determination of the Option Rent exchanged by the parties pursuant to Section 2.2.4, above;
2.2.4.3.2 An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, and shall require the Neutral Arbitrator to whether demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant;
2.2.4.3.3 Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
2.2.4.3.4 That Landlord and Tenant shall use each have the right to submit to the Neutral Arbitrator (with a copy to the other party), on or before the date that occurs fifteen (15) days following the appointment of the Neutral Arbitrator, an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord or Tenant, as the case may be, in support of Landlord’s or Tenant’s respective determination of Option Rent (the “Briefs”);
2.2.4.3.5 That within five (5) business days following the exchange of Briefs, Landlord and Tenant shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s Brief (the “Rebuttals”); provided, however, such Rebuttals shall be limited to the facts and arguments raised in the other party’s Brief and shall identify clearly which argument or fact of the other party’s Brief is intended to be rebutted;
2.2.4.3.6 The date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Advocate Arbitrators, Landlord and Tenant, and each party’s applicable consultants, which date shall in any event be within thirty (30) days following the appointment of the Neutral Arbitrator;
2.2.4.3.7 That no discovery shall take place in connection with the arbitration, other than to verify the factual information that is presented by Landlord or Tenant;
2.2.4.3.8 That the Neutral Arbitrator shall not be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant, except that the Neutral Arbitrator shall be permitted to visit the Project and the buildings containing the Comparable Transactions;
2.2.4.3.9 The specific persons that shall be allowed to attend the arbitration;
2.2.4.3.10 Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed two (2) hours (“Tenant’s Initial Statement”);
2.2.4.3.11 Following Tenant’s Initial Statement, Landlord shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed two (2) hours (“Landlord’s Initial Statement”);
2.2.4.3.12 Following Landlord’s Initial Statement, Tenant shall have up to one (1) additional hour to present additional arguments and/or to rebut the arguments of Landlord (“Tenant’s Rebuttal Statement”);
2.2.4.3.13 Following Tenant’s Rebuttal Statement, Landlord shall have up to one (1) additional hour to present additional arguments and/or to rebut the arguments of Tenant;
2.2.4.3.14 That, not later than ten (10) days after the date of the arbitration, the Neutral Arbitrator shall render a decision (the “Ruling”) indicating whether Landlord’s or Tenant’s submitted Option Rent is closer to the Option Rent;
2.2.4.3.15 That following notification of the Ruling, and Landlord’s or Tenant’s submitted Option Rent determination, whichever is selected by the Neutral Arbitrator as being closer to the Option Rent shall notify Landlord and Tenant thereof.become the then applicable Option Rent; and
2.2.3.4 The 2.2.4.3.16 That the decision of the majority of the three arbitrators Neutral Arbitrator shall be binding upon on Landlord and Tenant. If a date by which an event described in Section 2.2.4.3, above, is to occur falls on a weekend or a holiday, the date shall be deemed to be the next business day.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 2.2.4.4 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the applicable Option Term, Tenant shall be required to pay the Option Rent Rent, initially provided by Landlord to TenantTenant in Landlord’s Option Rent Notice, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 2 contracts
Sources: Office Lease (Dropbox, Inc.), Office Lease (Dropbox, Inc.)
Determination of Option Rent. In If Tenant fails to timely and appropriately object to Option Rent, then the event Option Rent shall be as set forth in the Option Rent Notice. If Tenant timely and appropriately exercises an option objects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent applicable Fair Market Rental Value using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as applicable Fair Market Rental Value (the case may be“Arbitration Fair Market Rental Value(s)”), within ten fifteen (1015) days after following the Outside Agreement Date, Date and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.3.4.1 through 2.2.3.7, 2.3.4.7 below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.3.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate broker or appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing or appraisal, as the case may be, of other class A life sciences buildings located commercial high rise properties in the South San Francisco market Coast Plaza/▇▇▇▇ ▇▇▇▇▇ Airport area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent Arbitration Fair Market Rental Value is the closest to the actual Option RentFair Market Rental Value as determined by the arbitrators, taking into account the requirements of Section 2.2.2 2.3.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen twenty (1520) days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 2.3.4.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counselarbitrators.
2.2.3.3 2.3.4.3 The three arbitrators shall, shall within thirty (30) days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option RentFair Market Rental Value, and shall notify Landlord and Tenant thereof.
2.2.3.4 2.3.4.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 2.3.4.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen twenty (1520) days after the applicable Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 2.3.4.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitratora third arbitrator, or both parties fail to appoint an arbitrator, then either party may petition the presiding judge appointment of the Superior Court third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of San Mateo County to appoint the Neutral ArbitratorAmerican Arbitration Association Commercial Rules of Arbitration, but subject to criteria the instruction set forth in this Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator2.3.4.
2.2.3.7 2.3.4.7 The cost of the arbitration arbitrator appointed by Landlord shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement Landlord. The cost of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made arbitrator appointed by Tenant shall be reconciled with paid by Tenant. The cost of the actual amounts of Option Rent due, third arbitrator shall be shared equally by Landlord and the appropriate party shall make any corresponding payment to the other partyTenant.
Appears in 2 contracts
Sources: Office Lease (Quality Systems Inc), Office Lease (Quality Systems Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option objects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent Rent, using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) business days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) business days after the applicable Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.4.1 through 2.2.3.7, 2.2.4.7 below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall be a real estate appraiser broker who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other first class A life sciences buildings located commercial office projects in the South of Market Street area of San Francisco market areaFrancisco, California. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent Rent, is the closest to the actual Option Rent, as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 2.2.4.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a an independent third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) arbitrators.
2.2.3.3 2.2.4.3 The three (3) arbitrators shall, shall within thirty (30) days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 2.2.4.4 The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 2.2.4.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) days after the applicable Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 2.2.4.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Leasea third arbitrator, or if he or she refuses to act, either party may petition any judge having jurisdiction over the both parties fail to appoint such an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this Section 2.2.4.
2.2.3.7 2.2.4.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 2 contracts
Sources: Assignment of Sublease (Jaguar Animal Health, Inc.), Assignment of Sublease (Jaguar Animal Health, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten (10) days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to accepted Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be a real estate appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
. 2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 2 contracts
Sources: Sublease (Twist Bioscience Corp), Sublease (Twist Bioscience Corp)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option objects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, Rent within ten five (105) days after the Outside Agreement Datedays, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.4.1 through 2.2.3.72.2.4.7 below, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to provided that Landlord’s determination of Option RentRent submitted to arbitration shall not be higher than the Option Rent contained in the Option Rent Notice (when calculated with any concessions to be given on a net effective rental rate basis).
2.2.3.1 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate broker or appraiser who shall have been active over the five ten (510) year period ending on the date of such appointment in the appraisal leasing (or appraisal, as the case may be) of other class A life sciences buildings located comparable commercial properties in the South San Francisco market areavicinity of the Real Property. Each such arbitrator shall be appointed within ten (10) days after the applicable Outside Agreement Date.
2.2.4.2 The two arbitrators so appointed shall within five (5) business days of the date of the appointment of the last appointed arbitrator agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two arbitrators.
2.2.4.3 The three arbitrators shall within thirty (30) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent and shall notify Landlord and Tenant thereof. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option RentRent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 2.2.4.4 The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 2.2.4.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen ten (1510) days after the applicable Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 2.2.4.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitratora third arbitrator, or both parties fail to appoint an arbitrator, then either party may petition the presiding judge appointment of the Superior Court third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of San Mateo County to appoint the Neutral ArbitratorAmerican Arbitration Association, but subject to criteria the instruction set forth in this Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator2.2.4.
2.2.3.7 2.2.4.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 2 contracts
Sources: Office Lease (Spinal Elements Holdings, Inc.), Office Lease (Spinal Elements Holdings, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s 's determination of the Option Rent within on or before the days which is thirty (30) days thereafterfollowing the date Tenant timely and appropriately exercises its option to extend the Lease Term. If Tenant, on or before the date which is ten (10) days Business Days following the date upon which Tenant receives Landlord’s 's determination of the Option Rent, in good faith objects to Landlord’s 's determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best commercially reasonable, good-faith efforts. If Landlord and Tenant fail to reach agreement within ten fifteen (1015) business days following Tenant’s 's objection to the Option Rent (the “"Outside Agreement Date”"), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) days after the Outside Agreement DateBusiness Days, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s 's determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to rejected Landlord’s 's determination of Option RentRent and the Option Rent shall be determined by arbitration as provided below.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be be, at the option of the appointing party, a real estate broker, appraiser or attorney who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing or appraisal, as the case may be, of other class A life sciences buildings located in the South San Francisco market areaComparable Buildings. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days Business Days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators.”"
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days Business Days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“"Neutral Arbitrator”") who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ ' Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s 's counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Option Rent, and shall notify Landlord and Tenant thereofthereof Landlord and Tenant.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.upon
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 2 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenantat 103% of rate in effect on the last day of the initial Lease Term, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 2 contracts
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease Termextend, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree in good faith upon the Option Rent using their best good-faith effortsRent. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s objection to delivery of the Option Rent Exercise Notice (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Base Rent, as the case may be, within ten (10) business days after the Outside Agreement Date, concurrently exchange such determinations and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.3(i) through 2.2.3.7, (viii) below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 (i) Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate appraiser broker who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other class A life sciences buildings located office space in the South San Francisco market areaComparable Buildings. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Base Rent is the closest to the actual Option Rentfair market rent, as determined by the arbitrators, taking into account the requirements of this Section 2.2.2 2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) business days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 (ii) The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten five (105) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) arbitrators.
2.2.3.3 (iii) The three (3) arbitrators shall, shall within thirty five (305) days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, Base Rent and shall notify Landlord and Tenant thereof.
2.2.3.4 (iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 (v) If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) business days after the applicable Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 (vi) If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitratora third arbitrator, or both parties fail to appoint an arbitrator, then either party may petition the presiding judge appointment of the Superior Court third arbitrator or any arbitrator shall be dismissed and the Base Rent to be decided shall be forthwith submitted to arbitration under the provisions of San Mateo County to appoint the Neutral ArbitratorAmerican Arbitration Association, but subject to criteria the instruction set forth in this Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator2.2.
2.2.3.7 (vii) The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 (viii) In the event that the Option new monthly Base Rent shall is not have been determined pursuant to the terms hereof established prior to end of the initial Term of this Lease, the monthly Base Rent immediately payable at the commencement of the such Option Term, Tenant Term shall be required to pay the Option monthly Base Rent initially provided by Landlord to Tenantpayable in the immediately preceding month. Notwithstanding the above, and upon once the final determination of the Option Rentfair market rental is determined in accordance with this Section 2.2, the payments made by Tenant parties shall be reconciled with settle any underpayment or overpayment on the actual amounts of Option next monthly Base Rent due, and the appropriate party shall make any corresponding payment to the other partydate falling not less than thirty (30) days after such determination.
Appears in 2 contracts
Sources: Office Lease (Rocket Companies, Inc.), Office Lease (Rocket Companies, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafteron or before the Lease Expiration Date. If Tenant, on or before the date which is ten thirty (1030) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) days after the Outside Agreement Datedays, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 4.3(a) through 2.2.3.7(g), below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 (a) Landlord and Tenant shall each appoint one arbitrator who shall be be, at the option of the appointing party, a MAI appraiser, real estate appraiser broker or real estate lawyer, who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing or appraisal, as the case may be, of other class A life sciences buildings located commercial high-rise properties in the South downtown financial district of San Francisco market areaFrancisco, California. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 4.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 (b) The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 (c) The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 (d) The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 (e) If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo Francisco County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 (f) If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo Francisco County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 2.2.3.2 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 (g) The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 (h) In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 2 contracts
Sources: Office Lease, Office Lease (Textainer Group Holdings LTD)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith but objects to Landlord’s determination of the Option RentRent concurrently with its exercise of the option to extend, then Landlord and Tenant shall attempt to agree in good faith upon the Option Rent using their best good-faith effortsRent. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s objection to delivery of the Option Rent Notice (the ““ Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, Rent within ten five (105) business days after the Outside Agreement Date, concurrently exchange such determinations and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.following:
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate broker or appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing (or appraisal, as the case may be) of other class A life sciences commercial office buildings located in the South San Francisco market areaarea in which the Building is located. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, as determined by the arbitrators, taking into account the requirements of Section 2.2.2 2.2.1 of this LeaseLease (i.e., as determined by the arbitratorsarbitrators may only select Landlord’s or Tenant’s determination and shall not be entitled to make a compromise determination). Each such arbitrator shall be appointed within fifteen (15) business days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten five (105) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) arbitrators.
2.2.3.3 The three (3) arbitrators shall, shall within thirty five (305) days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, Rent and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) business days after the applicable Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitratora third arbitrator, or both parties fail to appoint an arbitrator, then either party may petition the presiding judge appointment of the Superior Court third arbitrator or any arbitrator shall be dismissed and the Option Rent to be decided shall be forthwith submitted to arbitration under the provisions of San Mateo County to appoint the Neutral ArbitratorAmerican Arbitration Association, but subject to criteria the instruction set forth in this Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator2.2.3.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 2 contracts
Sources: Office Lease (Intralase Corp), Office Lease (Advanced Medical Optics Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of but rejects the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of set forth in the Option RentRent Notice pursuant to Section 3.2.3, in good faith objects to Landlord’s determination of the Option Rentabove, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection upon the Option Rent applicable to the Option Rent Term on or before the date that is ninety (90) days prior to the expiration of the initial Lease Term (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall thereafter make a separate determination of the Option Rent, as the case may be, within ten five (105) business days after following the Outside Agreement Date, and such binding determinations shall be exchanged by the parties at a time and place mutually and reasonably agreed upon, and shall thereafter be submitted to arbitration in accordance with Sections 2.2.3.1 3.2.4.1 through 2.2.3.73.2.4.4, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 3.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall be be, at the option of the appointing party an MAI appraiser, a real estate appraiser broker or a real estate attorney, who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing or appraisal, as the case may be, of other class A life sciences buildings located science properties in the South San Francisco market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option RentFrancisco, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitratorsCalifornia. Each such arbitrator shall be appointed within fifteen twenty (1520) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 3.2.4.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) business days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearanceappointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 3.2.4.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 3.2.2 of this Lease, as determined by the arbitrators.
2.2.3.4 3.2.4.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 2 contracts
Sources: Lease (Portola Pharmaceuticals Inc), Lease (Portola Pharmaceuticals Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafteron or before the Lease Expiration Date. If Tenant, on or before the date which is ten thirty (1030) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection to on or before the commencement of the Option Rent Term (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) days after the Outside Agreement Datedays, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to accepted Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be be, at the option of the appointing party, a real estate broker or appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing or appraisal, as the case may be, of other first-class A life sciences buildings located properties in the South Sorrento Mesa area of San Francisco market areaDiego, California. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo Diego County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator within ten (10) business days following the date of the appointment of the last appointed Advocate Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo Diego County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 2.2.3.2 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other partyparty to satisfy any deficiency or overpayment of Option Rent.
Appears in 2 contracts
Sources: Lease (Decipher Biosciences, Inc.), Lease (Decipher Biosciences, Inc.)
Determination of Option Rent. In If Tenant objects in its Exercise Notice to Landlord to the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of Fair Market Rental Rate for the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Term initially determined by Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt in good faith to agree upon the Option Rent using their best good-faith effortsFair Market Rental Rate. If Landlord and Tenant fail to reach agreement within ten (10) business days following Tenant’s objection to the Option Rent delivery of such Exercise Notice (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make submit to the other party a separate written determination of the Option Rent, as the case may be, Fair Market Rental Rate within ten fifteen (1015) business days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with the provisions of Sections 2.2.3.1 4.1 through 2.2.3.7, 4.7 below. If The failure of Tenant fails to object to Landlord’s submit a written determination of the Option Rent Fair Market Rental Rate within the time such fifteen (15) business day period set forth herein, then Tenant shall conclusively be deemed to have objected to Landlordbe Tenant’s determination approval of Option Rentthe Fair Market Rental Rate submitted within such fifteen (15) business day period by the other party.
2.2.3.1 4.1 Landlord and Tenant shall each appoint one (1) arbitrator who shall by profession be a an independent real estate appraiser broker who shall have no ongoing relationship with Tenant or Landlord and who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other first class A life sciences office buildings located in the South San Francisco market Mateo County area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent Fair Market Rental Rate is the closest closer to the actual Option RentFair Market Rental Rate as determined by the arbitrators, taking into account the requirements of with respect thereto set forth in Section 2.2.2 of this Lease, as determined by the arbitrators2 above. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 4.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter shall, within ten fifteen (1015) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator, agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) arbitrators.
2.2.3.3 4.3 The three (3) arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitratorthird arbitrator, reach a decision as to whether the parties shall use which of Landlord’s or Tenant’s submitted Option Rent, Fair Market Rental Rate is closer to the actual Fair Market Rental Rate and shall select such closer determination as the Fair Market Rental Rate and notify Landlord and Tenant thereof.
2.2.3.4 4.4 The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 4.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria time period specified in Section 2.2.3.1 4.1 hereinabove, the arbitrator appointed by one of this Leasethem shall reach a decision, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by notify Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Termthereof, Tenant and such arbitrator’s decision shall be required to pay the Option Rent initially provided by binding upon Landlord to and Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 2 contracts
Sources: Lease Agreement (Harpoon Therapeutics, Inc.), Lease (Harpoon Therapeutics, Inc.)
Determination of Option Rent. In the event If Tenant timely and appropriately exercises an option objects in its Exercise Notice to extend Landlord to the Lease Term, Landlord shall notify Tenant of Landlord’s determination of Fair Market Rental Rate for the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Term initially determined by Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt in good faith to agree upon the Option Rent using their best good-faith effortsFair Market Rental Rate. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant▇▇▇▇▇▇’s objection to the Option Rent delivery of such Exercise Notice (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make submit to the other party a separate written determination of the Option Rent, as the case may be, Fair Market Rental Rate within ten fifteen (1015) business days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with the provisions of Sections 2.2.3.1 4.1 through 2.2.3.7, 4.6 below. If The failure of Tenant fails or Landlord to object to Landlord’s submit a written determination of the Option Rent Fair Market Rental Rate within the time such fifteen (15) business day period set forth herein, then Tenant shall conclusively be deemed to have objected to Landlordbe such party’s determination approval of Option Rentthe Fair Market Rental Rate submitted within such fifteen (15) business day period by the other party.
2.2.3.1 4.1 Landlord and Tenant shall each appoint one (1) arbitrator who shall by profession be a an independent real estate appraiser broker who shall have no ongoing relationship with Tenant or Landlord and who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other first class A life sciences biotechnology office buildings located in the South San Francisco market areaMarket Area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent Fair Market Rental Rate is the closest closer to the actual Option RentFair Market Rental Rate as determined by the arbitrators, taking into account the requirements of with respect thereto set forth in Section 2.2.2 of this Lease, as determined by the arbitrators2 above. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 4.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter shall, within ten fifteen (1015) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator, agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) arbitrators.
2.2.3.3 4.3 The three (3) arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitratorthird arbitrator, reach a decision as to whether the parties shall use which of Landlord’s or Tenant’s submitted Option Rent, Fair Market Rental Rate is closer to the actual Fair Market Rental Rate and shall select such closer determination as the Fair Market Rental Rate and notify Landlord and Tenant thereof.
2.2.3.4 4.4 The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 4.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria time period specified in Section 2.2.3.1 4.1 hereinabove, the arbitrator appointed by one of this Leasethem shall reach a decision, or if he or she refuses to actnotify Landlord and Tenant thereof, either party may petition any judge having jurisdiction over the parties to appoint and such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 4.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint a third arbitrator, within the Neutral Arbitratortime period provided in Section 4.2 above, then the parties shall mutually select the third arbitrator. If Landlord and ▇▇▇▇▇▇ are unable to agree upon the third arbitrator within ten (10) days after the fifteen (15) day period described in Section 4.2 above, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitratormay, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof upon at least five (5) days’ prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment written notice to the other party, request the Presiding Judge of the Middlesex County Superior Court, acting in his private and nonjudicial capacity, to appoint the third arbitrator. Following the appointment of the third arbitrator, the panel of arbitrators shall within thirty (30) days thereafter reach a decision as to whether Landlord’s or Tenant’s submitted Fair Market Rental Rate shall be used and shall notify Landlord and Tenant thereof. Landlord and Tenant shall each pay the costs of its own arbitrator and fifty percent (50%) of the cost of the third arbitrator.
Appears in 2 contracts
Sources: Lease (Sionna Therapeutics, Inc.), Lease (Sionna Therapeutics, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of but rejects the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of set forth in the Option RentRent Notice pursuant to Section 2.2.3, in good faith objects to Landlord’s determination of the Option Rentabove, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection upon the Option Rent applicable to the Option Rent Term on or before the date that is ninety (90) days prior to the expiration of the initial Lease Term (the “Option Rent Outside Agreement Date”), then Tenant the Option Rent shall have the right to withdraw its exercise of the option be determined by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease arbitration pursuant to the terms of this Section 2.2 shall be of no further force or effect2.2.4. If Tenant does not withdraw its exercise of the extension option, each Each party shall make a separate determination of the Option Rent, as Rent within five (5) business days following the case may be, within ten (10) days after the Option Rent Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.4.1 through 2.2.3.72.2.4.4, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a MAI appraiser or real estate appraiser broker who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal appraising and/or leasing of other first class A life sciences buildings located office properties in the South San Francisco market areavicinity of the Building. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option RentRent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Option Rent Outside Agreement Date or First Offer Rent Outside Agreement Date, as applicable. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positionspositions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable). The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 2.2.4.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, Arbitrators except that (i) neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant during the five (5) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall2.2.4.3 Within seven (7) business days following the appointment of the Arbitrator, within thirty Landlord and Tenant shall enter into an arbitration agreement (30the “Arbitration Agreement”) which shall set forth the following:
(i) Each of Landlord’s and Tenant’s best and final and binding determination of the Option Rent exchanged by the parties pursuant to Section 2.2.4, above;
(ii) An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, and shall require the Neutral Arbitrator to demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant;
(iii) Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
(iv) That Landlord and Tenant shall each have the right to submit to the Neutral Arbitrator (with a copy to the other party), on or before the date that occurs fifteen (15) days of following the appointment of the Neutral Arbitrator, reach an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord or Tenant, as the case may be, in support of Landlord’s or Tenant’s respective determination of Option Rent (the “Briefs”);
(v) That within five (5) business days following the exchange of Briefs, Landlord and Tenant shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s Brief (the “First Rebuttals”); provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party’s Brief and shall identify clearly which argument or fact of the other party’s Brief is intended to be rebutted;
(vi) That within five (5) business days following the parties’ receipt of each other’s First Rebuttal, Landlord and Tenant, as applicable, shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s First Rebuttal (the “Second Rebuttals”); provided, however, such Second Rebuttals shall be limited to the facts and arguments raised in the other party’s First Rebuttal and shall identify clearly which argument or fact of the other party’s First Rebuttal is intended to be rebutted;
(vii) The date, time and location of the arbitration (which location shall be in the City of San Francisco), which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Advocate Arbitrators, Landlord and Tenant, and each party’s applicable consultants, which date shall in any event be within forty-five (45) days following the appointment of the Neutral Arbitrator;
(viii) That no discovery shall take place in connection with the arbitration, other than to verify the factual information that is presented by Landlord or Tenant;
(ix) That the Neutral Arbitrator shall not be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant, except that the Neutral Arbitrator shall be permitted to visit the Project and the Comparable Buildings (as defined in Exhibit F);
(x) The specific persons that shall be allowed to attend the arbitration;
(xi) Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours (“Tenant’s Initial Statement”);
(xii) Following Tenant’s Initial Statement, Landlord shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours (“Landlord’s Initial Statement”);
(xiii) Following Landlord’s Initial Statement, Tenant shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Landlord (“Tenant’s Rebuttal Statement”);
(xiv) Following Tenant’s Rebuttal Statement, Landlord shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Tenant;
(xv) That, not later than ten (10) days after the date of the arbitration, the Neutral Arbitrator shall render a decision as to (the “Ruling”) indicating whether the parties shall use Landlord’s or Tenant’s submitted Option Rent is closer to the Market Rent;
(xvi) That following notification of the Ruling, and Landlord’s or Tenant’s submitted Option Rent determination, whichever is selected by the Neutral Arbitrator as being closer to the Option Rent shall notify Landlord and Tenant thereof.become the then applicable Market Rent; and
2.2.3.4 The (xvii) That the decision of the majority of the three arbitrators Neutral Arbitrator shall be binding upon on Landlord and Tenant. If a date by which an event described in Section 2.2.4.3, above, is to occur falls on a weekend or a holiday, the date shall be deemed to be the next business day.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 2.2.4.4 In the event that the Option Rent (or First Offer Rent, as applicable) shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term (or First Offer Term, as applicable), Tenant shall be required to pay pay, as applicable (i) Option Rent in an amount equal to the amount due with respect to the Premises immediately prior to the commencement of the Option Term, with Base Rent initially provided increased by Landlord three percent (3%) or (ii) First Offer Rent in an amount equal to Tenantthe Rent (on a per rentable square foot basis) then applicable to the lease of the original Premises, and upon the final determination of the Option Rent (or First Offer Rent, as applicable), the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 2 contracts
Sources: Office Lease (Lyft, Inc.), Office Lease (Lyft, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option objects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option First Offer Rent, in good faith objects to Landlord’s determination of the Option Rentas applicable), then Landlord and Tenant shall attempt to agree upon the Option Rent (or the First Offer Rent, as applicable) using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) business days following Tenant’s objection to the Option Rent (or the First Offer Rent, as applicable) (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent (or the First Offer Rent, as the case may be, applicable) within ten five (105) days after the Outside Agreement Datebusiness days, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.3.4.1 through 2.2.3.7, 2.3.4.7 below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.3.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate appraiser broker who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other class A life sciences buildings located in the South San Francisco market areaComparable Buildings. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Option Rent (or the First Offer Rent, as applicable) is the closest to the actual Option Rent (or the First Offer Rent, as applicable) as determined by the arbitrators, taking into account the requirements of Section 2.2.2 2.3.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 2.3.4.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitratorsarbitrators, except provided that neither the third arbitrator shall not be then representing Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 2.3.4.3 The three arbitrators shall, shall within thirty (30) days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent (or the First Offer Rent, as applicable) and shall notify Landlord and Tenant thereof.
2.2.3.4 2.3.4.4 The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 2.3.4.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 2.3.4.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Leasea third arbitrator, or if he both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or she refuses any arbitrator shall be dismissed and the matter to actbe decided shall be forthwith submitted to binding, either party may petition any judge having jurisdiction over final, non-appealable arbitration before a JAMS arbitrator mutually agreed upon by Landlord and Tenant. If Landlord and Tenant cannot agree on the arbitrator, the parties will so inform JAMS, who will then be authorized to appoint such arbitratorselect a JAMS judge to arbitrate the matter. Each party shall have the right of discovery pursuant to the California Code of Civil Procedure and evidentiary hearings shall be governed by the California Evidence Code, but subject to the instruction set forth in this Section 2.3.4.
2.2.3.7 2.3.4.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 2 contracts
Sources: Office Lease (CrowdStrike Holdings, Inc.), Office Lease (CrowdStrike Holdings, Inc.)
Determination of Option Rent. In the event If Tenant timely and appropriately exercises an option objects in its Exercise Notice to extend Landlord to the Lease Term, Landlord shall notify Tenant of Landlord’s determination of Fair Market Rental Rate for the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Term initially determined by Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt in good faith to agree upon the Option Rent using their best good-faith effortsFair Market Rental Rate. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s objection to the Option Rent delivery of such Exercise Notice (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make submit to the other party a separate written determination of the Option Rent, as the case may be, Fair Market Rental Rate within ten fifteen (1015) business days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with the provisions of Sections 2.2.3.1 4.1 through 2.2.3.74.6 below; provided, belowhowever, Landlord shall not submit an amount in excess of that set forth in the Option Rent Notice. If The failure of Tenant fails or Landlord to object to Landlord’s submit a written determination of the Option Rent Fair Market Rental Rate within the time such fifteen (15) business day period set forth herein, then Tenant shall conclusively be deemed to have objected to Landlordbe such party’s determination approval of Option Rentthe Fair Market Rental Rate submitted within such fifteen (15) business day period by the other party.
2.2.3.1 4.1 Landlord and Tenant shall each appoint one (1) arbitrator who shall by profession be a an independent real estate appraiser broker who shall have no ongoing relationship with Tenant or Landlord and who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other class A life sciences buildings located in the South San Francisco market areaComparable Buildings. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent Fair Market Rental Rate is the closest closer to the actual Option RentFair Market Rental Rate as determined by the arbitrators, taking into account the requirements of with respect thereto set forth in Section 2.2.2 of this Lease, as determined by the arbitrators2 above. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 4.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter shall, within ten fifteen (1015) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator, agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) arbitrators.
2.2.3.3 4.3 The three (3) arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitratorthird arbitrator, reach a decision as to whether the parties shall use which of Landlord’s or Tenant’s submitted Option Rent, Fair Market Rental Rate is closer to the actual Fair Market Rental Rate and shall select such closer determination as the Fair Market Rental Rate and notify Landlord and Tenant thereof.
2.2.3.4 4.4 The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 4.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria time period specified in Section 2.2.3.1 4.1 hereinabove, the arbitrator appointed by one of this Leasethem shall reach a decision, or if he or she refuses to actnotify Landlord and Tenant thereof, either party may petition any judge having jurisdiction over the parties to appoint and such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 4.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint a third arbitrator, within the Neutral Arbitratortime period provided in Section 4.2 above, then the parties shall mutually select the third arbitrator. If Landlord and ▇▇▇▇▇▇ are unable to agree upon the third arbitrator within ten (10) days after the fifteen (15) day period described in Section 4.2 above, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitratormay, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof upon at least five (5) days’ prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment written notice to the other party, request the Presiding Judge of the San Mateo County Superior Court, acting in his private and nonjudicial capacity, to appoint the third arbitrator. Following the appointment of the third arbitrator, the panel of arbitrators shall within thirty (30) days thereafter reach a decision as to whether Landlord’s or Tenant’s submitted Fair Market Rental Rate shall be used and shall notify Landlord and Tenant thereof. Landlord and Tenant shall each pay the costs of its own arbitrator and fifty percent (50%) of the cost of the third arbitrator.
Appears in 2 contracts
Sources: Sublease (CARGO Therapeutics, Inc.), Sublease (CARGO Therapeutics, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option Option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of Extend but rejects (or is deemed to reject) the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of set forth in the Option RentRent Notice pursuant to Section 2.2.3, in good faith objects to Landlord’s determination of the above (or if Tenant did not deliver an Option RentInterest Notice, and therefore Landlord did not deliver an Option Rent Notice), then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection upon the Option Rent applicable to the Option Rent Term on or before the date that is one hundred eighty (180) days prior to the expiration of the initial Lease Term or the first Option Term, as applicable (the “Outside Agreement Date”), then Tenant the Option Rent shall have the right to withdraw its exercise of the option be determined by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease arbitration pursuant to the terms of this Section 2.2 shall be of no further force or effect2.2.4. If Tenant does not withdraw its exercise of the extension option, each Each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) days after following the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.4.1 through 2.2.3.72.2.4.4, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate MAI appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal appraising and/or leasing of other first class A office and life sciences buildings located science properties in the South San Francisco market areavicinity of the Project. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option RentRent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positionspositions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable). The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 2.2.4.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, Arbitrators except that (i) neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant or their affiliates during the five (5) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel. Each party shall pay for the costs of its own Advocate Arbitrator and fifty percent (50%) of the cost of the Neutral Arbitrator.
2.2.3.3 The three arbitrators shall, within thirty 2.2.4.3 Within ten (3010) days of following the appointment of the Neutral Arbitrator, reach Landlord and Tenant shall enter into an arbitration agreement (the “Arbitration Agreement”) which shall set forth the following:
2.2.4.3.1 Each of Landlord’s and Tenant’s best and final and binding determination of the Option Rent exchanged by the parties pursuant to Section 2.2.4, above;
2.2.4.3.2 An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, and shall require the Neutral Arbitrator to whether demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant;
2.2.4.3.3 Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
2.2.4.3.4 That Landlord and Tenant shall use each have the right to submit to the Neutral Arbitrator (with a copy to the other party), on or before the date that occurs fifteen (15) days following the appointment of the Neutral Arbitrator, an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord or Tenant, as the case may be, in support of Landlord’s or Tenant’s respective determination of Option Rent (the “Briefs”);
2.2.4.3.5 That within five (5) business days following the exchange of Briefs, Landlord and Tenant shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s Brief (the “Rebuttals”); provided, however, such Rebuttals shall be limited to the facts and arguments raised in the other party’s Brief and shall identify clearly which argument or fact of the other party’s Brief is intended to be rebutted;
2.2.4.3.6 The date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Advocate Arbitrators, Landlord and Tenant, and each party’s applicable consultants, which date shall in any event be within thirty (30) days following the appointment of the Neutral Arbitrator;
2.2.4.3.7 That no discovery shall take place in connection with the arbitration, other than to verify the factual information that is presented by Landlord or Tenant;
2.2.4.3.8 That the Neutral Arbitrator shall not be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant, except that the Neutral Arbitrator shall be permitted to visit the Project and the buildings containing the Comparable Transactions;
2.2.4.3.9 The specific persons that shall be allowed to attend the arbitration;
2.2.4.3.10 Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed two (2) hours (“Tenant’s Initial Statement”);
2.2.4.3.11 Following Tenant’s Initial Statement, Landlord shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed two (2) hours (“Landlord’s Initial Statement”);
2.2.4.3.12 Following Landlord’s Initial Statement, Tenant shall have up to one (1) additional hour to present additional arguments and/or to rebut the arguments of Landlord (“Tenant’s Rebuttal Statement”);
2.2.4.3.13 Following Tenant’s Rebuttal Statement, Landlord shall have up to one (1) additional hour to present additional arguments and/or to rebut the arguments of Tenant;
2.2.4.3.14 That, not later than ten (10) days after the date of the arbitration, the Neutral Arbitrator shall render a decision (the “Ruling”) indicating whether Landlord’s or Tenant’s submitted Option Rent is closer to the Option Rent;
2.2.4.3.15 That following notification of the Ruling, and Landlord’s or Tenant’s submitted Option Rent determination, whichever is selected by the Neutral Arbitrator as being closer to the Option Rent shall notify Landlord and Tenant thereof.become the then applicable Option Rent; and
2.2.3.4 The 2.2.4.3.16 That the decision of the majority of the three arbitrators Neutral Arbitrator shall be binding upon on Landlord and Tenant. If a date by which an event described in Section 2.2.4.3, above, is to occur falls on a weekend or a holiday, the date shall be deemed to be the next business day.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 2.2.4.4 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the applicable Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to TenantTenant in Landlord’s Option Rent Notice, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 2 contracts
Sources: Lease Agreement (Dropbox, Inc.), Lease Agreement (Dropbox, Inc.)
Determination of Option Rent. In the event If Tenant timely and appropriately exercises an option objects in its Exercise Notice to extend Landlord to the Lease Term, Landlord shall notify Tenant of Landlord’s determination of Fair Market Rental Rate for the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Term initially determined by Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt in good faith to agree upon the Option Rent using their best good-faith effortsFair Market Rental Rate. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s objection to the Option Rent delivery of such Exercise Notice (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make submit to the other party a separate written determination of the Option Rent, as the case may be, Fair Market Rental Rate within ten fifteen (1015) business days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with the provisions of Sections 2.2.3.1 4.1 through 2.2.3.74.6 below; provided, belowhowever, Landlord shall not submit an amount in excess of the set forth in the Option Rent Notice. If The failure of Tenant fails or Landlord to object to Landlord’s submit a written determination of the Option Rent Fair Market Rental Rate within the time such fifteen (15) business day period set forth herein, then Tenant shall conclusively be deemed to have objected to Landlordbe such party’s determination approval of Option Rentthe Fair Market Rental Rate submitted within such fifteen (15) business day period by the other party.
2.2.3.1 4.1 Landlord and Tenant shall each appoint one (1) arbitrator who shall by profession be a an independent real estate appraiser broker who shall have no ongoing relationship with Tenant or Landlord and who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other class A life sciences first biotechnology office buildings located in the South San Francisco market areaMarket Area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent Fair Market Rental Rate is the closest closer to the actual Option RentFair Market Rental Rate as determined by the arbitrators, taking into account the requirements of with respect thereto set forth in Section 2.2.2 of this Lease, as determined by the arbitrators2 above. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 4.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter shall, within ten fifteen (1015) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator, agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the initial two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitratorarbitrators.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 2 contracts
Sources: Lease (Applied Molecular Transport Inc.), Lease (Applied Molecular Transport LLC)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of but rejects the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of set forth in the Option RentRent Notice pursuant to Section 2.2.3, in good faith objects to Landlord’s determination of the Option Rentabove, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection upon the Option Rent applicable to the Option Rent Term on or before the date that is ninety (90) days prior to the expiration of the initial Lease Term (the “Outside Agreement Date”“), then Tenant the Option Rent shall have the right to withdraw its exercise of the option be determined by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease arbitration as required pursuant to the terms of this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option2.2.4, and each party shall thereafter make a separate determination of the Option Rent, as the case may be, within ten five (105) business days after following the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.4.1 through 2.2.3.72.2.4.4, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a MAI appraiser or a real estate appraiser broker who shall have been active over the five ten (510) year period ending on the date of such appointment in the appraisal appraising and/or leasing of other first class A life sciences buildings located office properties in the South San Francisco market areavicinity of the Building. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option RentRent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positionspositions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable). The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 ” The Advocate Arbitrators shall submit their determinations of Market Rent to both parties within fifteen (15) days after their selection. If the difference between the Market Rents submitted by the two (2) Advocate Arbitrators, based on the aggregate economic payments during the Option Term, as reasonably estimated using the “Net Equivalent Lease Rate” approach set forth on Exhibit F in order to allow an apples-to-apples comparison of the two submitted Market Rents, is five percent (5%) or less of the higher Net Equivalent Lease Rate, then the average between the two (2) determinations shall be the Option Rent for the Premises.
2.2.4.2 If the difference between the Market Rents submitted by the two (2) Advocate Arbitrators is greater than five percent (5%) (based on the Market Rent comparison method set forth in Section 2.2.4.1, above), then the two Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, Arbitrators except that (i) neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant during the five (5) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall2.2.4.3 Within ten (10) business days following the appointment of the Arbitrator, within thirty Landlord and Tenant shall enter into an arbitration agreement (30the “Arbitration Agreement”) which shall set forth the following:
2.2.4.3.1 Each of Landlord’s and Tenant’s best and final and binding determination of the Option Rent exchanged by the parties pursuant to Section 2.2.4, above;
2.2.4.3.2 An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, and shall require the Neutral Arbitrator to demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant;
2.2.4.3.3 Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
2.2.4.3.4 That Landlord and Tenant shall each have the right to submit to the Neutral Arbitrator (with a copy to the other party), on or before the date that occurs fifteen (15) days of following the appointment of the Neutral Arbitrator, reach a decision an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord or Tenant, as to whether the parties shall use case may be, in support of Landlord’s or Tenant’s submitted respective determination of Option RentRent (the “Briefs”);
2.2.4.3.5 That within five (5) business days following the exchange of Briefs, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s Brief (the “Rebuttals”); provided, however, such Rebuttals shall be limited to the facts and arguments raised in the other party’s Brief and shall identify clearly which argument or fact of the majority other party’s Brief is intended to be rebutted;
2.2.4.3.6 The date, time and location of the three arbitrators arbitration, which shall be binding mutually and reasonably agreed upon by Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after , taking into consideration the Outside Agreement Date, then either party may petition the presiding judge schedules of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge Advocate Arbitrators, Landlord and Tenant, and each party’s applicable consultants, which date shall in any event be within forty-five (45) days following the appointment of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.;
Appears in 2 contracts
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the subject Option RentRent and deliver notice thereof to the other within ten (10) business days after the Tenant Outside Agreement Date or the Landlord Outside Agreement Date, as the case may be. In the event the subject Option Rent submitted by Landlord is less than or equal to one hundred five percent (105%) of the subject Option Rent submitted by Tenant, within ten (10) days after the Outside Agreement Datesubject Option Rent shall be the average of the two such determinations. In all other cases, and such determinations shall be submitted to arbitration for final determination in accordance with Sections 2.2.3.1 through 2.2.3.7, this Section 27.4 below. If The failure of Tenant fails to object to Landlord’s make a determination and submittal of the Option Rent within the time such ten (10) business day period set forth herein, then Tenant shall conclusively be deemed to have objected to Tenant's approval of the subject Option Rent as determined by Landlord’s determination of Option Rent.
2.2.3.1 (A) Landlord and Tenant shall each appoint one arbitrator who shall be a real estate appraiser who broker from an established brokerage firm in Washington, D.C., with not less than ten (10) licensed office leasing brokers, which appointed broker shall have been active over the five ten (510) year period ending on the date of such appointment in the appraisal leasing of other class A life sciences buildings located retail space in commercial properties in Washington, D.C., provided that such broker shall not have been engaged or employed by the South San Francisco market areaparty appointing the same within such ten (10) year period (not including the engagement or compensation of a broker by Landlord in such broker's capacity as an outside tenant broker). The determination of the arbitrators brokers shall be limited solely to the issue selection of whether either Landlord’s 's or Tenant’s 's submitted Option Rent is for the closest to the actual subject Option RentTerm, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitratorsArticle 27. Each such arbitrator broker shall be appointed within fifteen (15) days after the subject Tenant Outside Agreement Date or the subject Landlord Outside Agreement Date. Landlord and Tenant , as the case may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitratorsbe.”
2.2.3.2 (B) The two (2) Advocate Arbitrators brokers so appointed shall be specifically required pursuant to an engagement letter shall, within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to broker, agree upon and appoint a third arbitrator (“Neutral Arbitrator”) broker who shall be qualified under the same criteria set forth hereinabove above for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) brokers.
2.2.3.3 (C) The three arbitrators (3) brokers shall, within thirty (30) days of the appointment of the Neutral Arbitratorthird broker, reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted subject Option Rent, Rent and shall notify Landlord and Tenant thereof.
2.2.3.4 (D) The decision of the majority of the three arbitrators (3) brokers shall be binding upon Landlord and Tenant.
2.2.3.5 (E) If either Landlord or Tenant fails to appoint an Advocate Arbitrator a broker within fifteen (15) days after the subject Tenant Outside Agreement Date or the subject Landlord Outside Agreement Date, then either party as the case may petition be, the presiding judge of broker appointed by the Superior Court of San Mateo County to appoint other shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorbroker's decision shall be binding upon Landlord and Tenant.
2.2.3.6 (F) If the two (2) Advocate Arbitrators brokers timely appointed by Landlord and Tenant fail to timely agree upon and appoint the Neutral Arbitratora third broker, then either party may petition the presiding judge appointment of the Superior Court third broker shall be submitted to arbitration under the provisions of San Mateo County to appoint the Neutral ArbitratorAmerican Arbitration Association, but subject to criteria the instructions set forth in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over Article 27
(G) Landlord and Tenant shall each pay the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid broker appointed by Landlord it and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement one-half (1/2) of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination cost of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other partythird broker.
Appears in 2 contracts
Sources: Lease Agreement (Smith & Wollensky Restaurant Group Inc), Lease Agreement (New York Restaurant Group Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an the option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within on or before the thirty (30) days thereafterafter the exercise of the option. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”’), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) days after the Outside Agreement Datedays, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to accepted Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be be, at the option of the appointing party, a real estate broker, appraiser or attorney who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing or appraisal, as the case may be, of other class A life sciences buildings located in the South San Francisco City of Cambridge, Massachusetts, market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or either her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge then-President of the Superior Court of San Mateo County Greater Boston Real Estate Board to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge then-President of the Superior Court of San Mateo County Greater Boston Real Estate Board to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 2 contracts
Sources: Sublease (Jounce Therapeutics, Inc.), Sublease (Jounce Therapeutics, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafteron or before the Lease Expiration Date. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) days after the Outside Agreement Datedays, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, the provisions below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 (i) Landlord and Tenant shall each appoint one arbitrator who shall be be, at the option of the appointing party, a real estate broker, appraiser or attorney who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing or appraisal, as the case may be, of other class A life sciences buildings located in the South San Francisco Durham, North Carolina market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Leaseabove, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 (ii) The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 (iii) The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 (iv) The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 (v) If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo Durham County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Leaseabove, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 (vi) If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo Durham County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Leaseabove, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 (vii) The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 (viii) In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 2 contracts
Sources: Lease Agreement (Liquidia Technologies Inc), Lease Agreement (Liquidia Technologies Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within on or before the date that is thirty (30) days thereafterfollowing ▇▇▇▇▇▇▇▇’s receipt of the Option Exercise Notice. If Tenant, on or before the date which is ten thirty (1030) days following the date upon which Tenant ▇▇▇▇▇▇ receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) business days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant▇▇▇▇▇▇’s right to extend the Lease pursuant to this Section 2.2 7 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, then each party shall thereafter make a separate determination of the Option Rent, as the case may be, within ten five (105) business days after following the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 7.3.1 through 2.2.3.77.3.7, below. If Tenant ▇▇▇▇▇▇ fails to object to Landlord▇▇▇▇▇▇▇▇’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to rejected Landlord’s determination of the Option Rent, and the matter shall be submitted to arbitration in accordance with the terms hereof.
2.2.3.1 7.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be a real estate appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord▇▇▇▇▇▇▇▇’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease7.2, above, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord ▇▇▇▇▇▇▇▇ and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 7.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord▇▇▇▇▇▇▇▇’s counsel and Tenant▇▇▇▇▇▇’s counsel.
2.2.3.3 7.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 7.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 7.3.5 If either Landlord or Tenant ▇▇▇▇▇▇ fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 7.3.1 of this LeaseThird Amendment, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 7.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 7.3.1 of this LeaseThird Amendment, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 7.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 . In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 2 contracts
Sources: Lease (Septerna, Inc.), Lease (Septerna, Inc.)
Determination of Option Rent. In the event Tenant timely and ---------------------------- appropriately exercises an option objects in Tenant's Exercise Notice to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenantinitially determined by Landlord, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent Rent, using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Landlord's receipt of Tenant’s objection 's Exercise Notice objecting to the Option Rent (the “"Outside Agreement Date”"), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make submit to the other party a separate written determination of the Option Rent, as the case may be, Rent within ten (10) business days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.4.1 through 2.2.3.7, 2.2.4.8 below. If Failure of Tenant fails or Landlord to object to Landlord’s submit a written determination of the Option Rent within the time such ten (10) business day period set forth herein, then Tenant shall conclusively be deemed to have objected to Landlord’s determination be the non-determining party's approval of the Option RentRent submitted within such ten (10) business day period by the other party.
2.2.3.1 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a an independent real estate appraiser broker who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other class A life sciences comparable commercial office buildings located in the South San Francisco market areaLos Angeles County, California. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Option Rent is the closest to the actual Option RentFair Market Rent for the Premises as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators2 above. Each such arbitrator shall be appointed within fifteen thirty (1530) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 2.2.4.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) arbitrators.
2.2.3.3 2.2.4.3 The three (3) arbitrators shall, shall within thirty (30) days of after the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Option Rent, Rent and shall notify Landlord and Tenant thereof.
2.2.3.4 2.2.4.4 The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 2.2.4.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen thirty (1530) days after the applicable Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator's decision shall be binding upon Landlord and Tenant.
2.2.3.6 2.2.4.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint a third arbitrator within the Neutral Arbitratortime period provided in Section 2.2.4.2 above, then the parties shall mutually select the third arbitrator. If Landlord and Tenant are unable to agree upon the third arbitrator within ten (10) days, then either party may petition may, upon at least five (5) days prior written notice to the presiding judge other party, request the Presiding Judge of the Los Angeles County Superior Court of San Mateo County Court, acting in his private and nonjudicial capacity, to appoint the Neutral Arbitratorthird arbitrator. Following the appointment of the third arbitrator, subject the panel of arbitrators shall within thirty (30) days thereafter reach a decision as to criteria in Section 2.2.3.1 of this Lease, whether Landlord's or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitratorTenant's submitted Option Rent shall be used and shall notify Landlord and Tenant thereof.
2.2.3.7 2.2.4.7 The cost of the arbitrators and the arbitration proceeding shall be paid by Landlord and Tenant equally, except that each party shall pay for the cost of its own witnesses and attorneys.
2.2.3.8 In 2.2.4.8 Notwithstanding any such determination of Fair Market Rent by any such arbitrators, in no event shall the event that Annual Base Rent payable by Tenant during the Option Term be less than the Annual Base Rent shall not have been determined pursuant to payable by Tenant for the terms hereof prior to the commencement Lease Year immediately preceding Tenant's exercise of the applicable Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 2 contracts
Sources: Telecommunications Office Lease (Equinix Inc), Telecommunications Office Lease (Equinix Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease TermTerm pursuant to Section 2.4.1, above, Landlord shall notify deliver written notice (the “Landlord Response Notice”) to Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is thirty (30) days after Landlord’s receipt of the Exercise Notice of Landlord’s good faith determination of the Option Rent. Within ten (10) days following its receipt of the date upon which Landlord Response Notice, Tenant receives shall notify Landlord in writing whether it accepts or objects to the Option Rent set forth in Landlord’s determination of Response Notice. In the Option Rent, event that Tenant in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall meet and attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten on or before the date that is ninety (1090) days following Tenant’s objection prior to the Option Rent expiration of the initial Lease Term (the “Outside Agreement Date”), then Tenant the Option Rent shall have the right to withdraw its exercise of the option be determined by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease arbitration pursuant to the terms of this Section 2.2 shall be of no further force or effect2.4.3. If Tenant does not withdraw its exercise of the extension option, each Each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) days after following the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 Section 2.4.3.1 through 2.2.3.7Section 2.4.3.4, below. If Tenant fails to object to Landlord’s The determination of the Option Rent within the time period set forth herein, then Tenant arbitrators shall be deemed to have objected to Landlord’s determination of Option Rentmade by taking into consideration all Comparable Transactions as calculated under the Constant Rate Equivalent Approach.
2.2.3.1 2.4.3.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a MAI appraiser, real estate appraiser broker, or real estate lawyer who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal appraising and/or leasing of other class A life sciences buildings located institutionally-owned properties in the South San Francisco market areavicinity of the Building. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option RentRent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 2.4.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positionspositions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable). The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 2.4.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, Arbitrators except that (i) neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly directly, or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant during the five (5) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty 2.4.3.3 Within ten (3010) days following the appointment of the Arbitrator, Landlord and Tenant shall enter into an arbitration agreement (the “Arbitration Agreement”) which shall set forth the following:
2.4.3.3.1 Each of Landlord’s and Tenant’s best and final and binding determination of the Option Rent exchanged by the parties pursuant to Section 2.4.3, above;
2.4.3.3.2 An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, and shall require the Neutral Arbitrator to demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant;
2.4.3.3.3 Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
2.4.3.3.4 That Landlord and Tenant shall each have the right to submit to the Neutral Arbitrator (with a copy to the other party), on or before the date that occurs fifteen (15) days following the appointment of the Neutral Arbitrator, reach an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord or Tenant, as the case may be, in support of Landlord’s or Tenant’s respective determination of Option Rent (the “Briefs”);
2.4.3.3.5 That within five (5) business days following the exchange of Briefs, Landlord and Tenant shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s Brief (the “First Rebuttals”); provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party’s Brief and shall identify clearly which argument or fact of the other party’s Brief is intended to be rebutted;
2.4.3.3.6 That within five (5) business days following the parties’ receipt of each other’s First Rebuttal, Landlord and Tenant, as applicable, shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s First Rebuttal (the “Second Rebuttals”); provided, however, such Second Rebuttals shall be limited to the facts and arguments raised in the other party’s First Rebuttal and shall identify clearly which argument or fact of the other party’s First Rebuttal is intended to be rebutted;
2.4.3.3.7 The date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Advocate Arbitrators, Landlord and Tenant, and each party’s applicable consultants, which date shall in any event be within forty-five (45) days following the appointment of the Neutral Arbitrator;
2.4.3.3.8 That no discovery shall take place in connection with the arbitration, other than to verify the factual information that is presented by Landlord or Tenant;
2.4.3.3.9 That the Neutral Arbitrator shall not be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant, except that the Neutral Arbitrator shall be permitted to visit the Project and the buildings containing the Comparable Transactions;
2.4.3.3.10 The specific persons that shall be allowed to attend the arbitration;
2.4.3.3.11 Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours (“Tenant’s Initial Statement”);
2.4.3.3.12 Following Tenant’s Initial Statement, Landlord shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours (“Landlord’s Initial Statement”);
2.4.3.3.13 Following Landlord’s Initial Statement, Tenant shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Landlord (“Tenant’s Rebuttal Statement”);
2.4.3.3.14 Following Tenant’s Rebuttal Statement, Landlord shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Tenant;
2.4.3.3.15 That, not later than ten (10) days after the date of the arbitration, the Neutral Arbitrator shall render a decision as to (the “Ruling”) indicating whether the parties shall use Landlord’s or Tenant’s submitted Option Rent is closer to the Option Rent;
2.4.3.3.16 That following notification of the Ruling, and Landlord’s or Tenant’s submitted Option Rent determination, whichever is selected by the Neutral Arbitrator as being closer to the Option Rent shall notify Landlord and Tenant thereof.become the then applicable Option Rent; and
2.2.3.4 The 2.4.3.3.17 That the decision of the majority of the three arbitrators Neutral Arbitrator shall be binding upon on Landlord and Tenant.
2.2.3.5 2.4.3.3.18 If either Landlord or Tenant fails to appoint a date by which an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria event described in Section 2.2.3.1 of this Lease2.4.3.3, above, is to occur falls on a weekend or if he or she refuses to acta holiday, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration date shall be paid by Landlord and Tenant equally.deemed to be the next business day
2.2.3.8 2.4.3.4 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent Rent, initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Office Lease (Rodgers Silicon Valley Acquisition Corp)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s 's determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s 's determination of the Option Rent, in good faith objects to Landlord’s 's determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s 's objection to the Option Rent (the “"Outside Agreement Date”"), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s 's right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten (10) days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s 's determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to accepted Landlord’s 's determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be a real estate appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco Redwood City market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators.”"
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“"Neutral Arbitrator”") who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ ' Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s 's counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.. 784015.04/WLA 888888-00017/8-7-18/ejs/ejs -7- [Seaport Center] [Adverum Biotechnologies, Inc.]
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Determination of Option Rent. In If Landlord determines in Landlord’s Option Rent Notice that the event Option Rent for the Challenger Premises for the Option Term shall equal the Challenger Fair Market Rental Rate pursuant to Section 8.1(i)(B) above and/or that the Option Rent for the Atlantic Premises for the Option Term shall equal the Atlantic Fair Market Rental Rate pursuant to Section 8.1(ii)(B) above, as the case may be, and Tenant timely and appropriately exercises an option objects in writing pursuant to extend Section 8.2 above with respect to such Challenger Fair Market Rental Rate and/or Atlantic Fair Market Rental Rate, as the Lease Termcase may be, Landlord shall notify Tenant of Landlord’s determination of for the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option RentTerm, then Landlord and Tenant shall attempt to agree upon such Challenger Fair Market Rental Rate and/or Atlantic Fair Market Rental Rate, as the Option Rent case may be, using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection to by the Option Rent date (the “Outside Agreement Date”)) which is twenty (20) days following Tenant’s delivery of the Exercise Notice, then Tenant shall have the right right, within two (2) business days after the Outside Agreement Date, to withdraw its exercise of rescind the option Exercise Notice for the Option Term by delivering written notice thereof of such rescission (the “Rescission Notice”) to Landlord. If Tenant timely and properly delivers to Landlord within five the Rescission Notice for the Option Term pursuant to the foregoing, then (5i) days thereafterTenant shall be deemed to have rescinded the Exercise Notice for the Option Term, in which event (ii) the Extension Option shall be null and void as of the date Tenant delivered such Rescission Notice to Landlord, and (iii) Landlord and Tenant shall have no further liability to the other under this Section 8. Tenant’s right failure to extend timely deliver the Lease Rescission Notice shall be deemed to be Tenant’s election to proceed with the exercise of Tenant’s Extension Option for the Option Term and to have the Challenger Fair Market Rental Rate and/or Atlantic Fair Market Rental Rate, as the case may be, determined pursuant to the following provisions of this Section 2.2 shall be of no further force or effect8.3. If Tenant does not withdraw its exercise of timely deliver the extension optionRescission Notice, then each party shall make submit to the other party a separate written determination of the Option Rentsuch Challenger Fair Market Rental Rate and/or Atlantic Fair Market Rental Rate, as the case may be, within ten (10) business days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with the provisions of Sections 2.2.3.1 8.3(a) through 2.2.3.7, (h) below. If The failure of Tenant fails or Landlord to object to Landlord’s submit a written determination of such Challenger Fair Market Rental Rate and/or Atlantic Fair Market Rental Rate, as the Option Rent case may be, within the time such ten (10) business day period set forth herein, then Tenant shall conclusively be deemed to have objected to Landlordbe such party’s determination approval of Option Rentsuch Challenger Fair Market Rental Rate and/or Atlantic Fair Market Rental Rate, as the case may be, submitted within such ten (10) business day period by the other party.
2.2.3.1 (a) Landlord and Tenant shall each appoint one (1) arbitrator who shall by profession be a real estate appraiser leasing broker who shall have (i) been active over the five ten (510) year period ending on the date of such appointment in the appraisal leasing of other class A life sciences buildings located the Comparable Buildings, (ii) no financial interest in Landlord or Tenant, and (iii) not represented or employed or engaged the South San Francisco market areaappointing party during such 10-year period. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent Challenger Fair Market Rental Rate and/or Atlantic Fair Market Rental Rate, as the case may be, is the closest closer to the actual Option RentChallenger Fair Market Rental Rate and/or Atlantic Fair Market Rental Rate, as the case may be, as determined by the arbitrators, taking into account the requirements of with respect thereto set forth in Section 2.2.2 of this Lease, as determined by the arbitrators8.1 above. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 (b) The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter shall, within ten fifteen (1015) days of after the date of the appointment of the last appointed Advocate Arbitrator to arbitrator, agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) arbitrators.
2.2.3.3 (c) The three (3) arbitrators shall, within thirty (30) days after the date of the appointment of the Neutral Arbitratorthird arbitrator, reach a decision as to whether the parties shall use which of Landlord’s or Tenant’s submitted Option RentChallenger Fair Market Rental Rate and/or Atlantic Fair Market Rental Rate, as the case may be, is closer to the actual Challenger Fair Market Rental Rate and/or Atlantic Fair Market Rental Rate, as the case may be, and shall select such closer determination as the Challenger Fair Market Rental Rate and/or Atlantic Fair Market Rental Rate, respectively, and notify Landlord and Tenant thereof.
2.2.3.4 (d) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 (e) If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria time period specified in Section 2.2.3.1 8.3(a) above, the arbitrator appointed by one of this Leasethem shall reach the decision set forth in Section 8.3(c) above, or if he or she refuses to actnotify Landlord and Tenant thereof, either party may petition any judge having jurisdiction over the parties to appoint and such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 (f) If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitratora third arbitrator, then either party may petition the presiding judge of a third arbitrator shall be appointed by the Superior Court in and for the county of San Mateo County to appoint the Neutral ArbitratorAlameda, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitratorCalifornia.
2.2.3.7 The cost (g) Each party shall pay the fees and expenses of the arbitration arbitrator appointed by or on behalf of it, and each shall be paid by Landlord pay one-half of the fees and Tenant equallyexpenses of the third arbitrator, if any.
2.2.3.8 (h) In no event shall the event that the applicable Option Rent shall not have been determined selected by the arbitrator(s) pursuant to this Section 8.3 be less than the terms hereof prior Challenger Floor Base Rent with respect to the commencement of Challenger Premises or the Option Term, Tenant shall be required to pay the Option Atlantic Floor Base Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment respect to the other partyAtlantic Premises, as the case may be.
Appears in 1 contract
Sources: Marina Village Office Tech Lease (Insite Vision Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option objects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s 's objection to the Option Rent (the “"Option Term Outside Agreement Date”"), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, Rent within ten fifteen (1015) days after the Outside Agreement Datebusiness days, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.4.1 through 2.2.3.72.2.4.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate appraiser broker or lawyer who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other class A life sciences buildings located commercial high-rise properties in the South San Francisco market areadowntown Seattle, Washington. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s 's or Tenant’s 's submitted Option Rent is the closest to the actual Option Rent, as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitratorsapplicable. Each such arbitrator shall be appointed within fifteen (15) days after the applicable Option Term Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 2.2.4.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counselarbitrators.
2.2.3.3 2.2.4.3 The three arbitrators shall, shall within thirty (30) days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 2.2.4.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 2.2.4.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) days after the applicable Option Term Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator's decision shall be binding upon Landlord and Tenant.
2.2.3.6 2.2.4.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitratora third arbitrator, or both parties fail to appoint an arbitrator, then either party may petition the presiding judge appointment of the Superior Court third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of San Mateo County to appoint the Neutral ArbitratorAmerican Arbitration Association, but subject to criteria the instruction set forth in this Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator2.2.4.
2.2.3.7 2.2.4.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Office Lease
Determination of Option Rent. In the event If Tenant timely and appropriately exercises an option objects in its Exercise Notice to extend Landlord to the Lease Term, Landlord shall notify Tenant of Landlord’s determination of Fair Market Rental Rate for the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Term initially determined by Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt in good faith to agree upon the Option Rent using their best good-faith effortsFair Market Rental Rate. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s objection to the Option Rent delivery of such Exercise Notice (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make submit to the other party a separate written determination of the Option Rent, as the case may be, Fair Market Rental Rate within ten fifteen (1015) business days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with the provisions of Sections 2.2.3.1 4.1 through 2.2.3.7, 4.6 below. If The failure of Tenant fails or Landlord to object to Landlord’s submit a written determination of the Option Rent Fair Market Rental Rate within the time such fifteen (15) business day period set forth herein, then Tenant shall conclusively be deemed to have objected to Landlordbe such party’s determination approval of Option Rentthe Fair Market Rental Rate submitted within such fifteen (15) business day period by the other party.
2.2.3.1 4.1 Landlord and Tenant shall each appoint one (1) arbitrator who shall by profession be a an independent real estate appraiser broker who shall have no ongoing relationship with Tenant or Landlord and who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other first class A life sciences office buildings located in the South San Francisco market areaMarket Area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent Fair Market Rental Rate is the closest closer to the actual Option RentFair Market Rental Rate as determined by the arbitrators, taking into account the requirements of with respect thereto set forth in Section 2.2.2 of this Lease, as determined by the arbitrators2 above. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”-1- [Execution Original]
2.2.3.2 4.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter shall, within ten thirty (1030) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator, agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) arbitrators.
2.2.3.3 4.3 The three (3) arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitratorthird arbitrator, reach a decision as to whether the parties shall use which of Landlord’s or Tenant’s submitted Option Rent, Fair Market Rental Rate is closer to the actual Fair Market Rental Rate and shall select such closer determination as the Fair Market Rental Rate and notify Landlord and Tenant thereof.
2.2.3.4 4.4 The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 4.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within the time period specified in Section 4.1 hereinabove, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
4.6 If the two (2) arbitrators fail to agree upon and appoint a third arbitrator, within the time period provided in Section 4.2 above, then the parties shall mutually select the third arbitrator. If Landlord and ▇▇▇▇▇▇ are unable to agree upon the third arbitrator within ten (10) business days after the fifteen (15) day period described in Section 4.2 above, then either party may, upon at least five (5) days’ prior written notice to the other party, request the Presiding Judge of the San Mateo County Superior Court, acting in his private and nonjudicial capacity, to appoint the third arbitrator. Following the appointment of the third arbitrator, the panel of arbitrators shall within thirty (30) days thereafter reach a decision as to whether Landlord’s or Tenant’s submitted Fair Market Rental Rate shall be used and shall notify Landlord and Tenant thereof. -2- [Execution Original] If Sublessee elects to determine the Fair Market Rent for the Extension Period pursuant to an appraisal process, the appraisal shall be conducted as follows:
A. Sublessee shall make a demand for an appraisal in writing within thirty (30) days after delivery of Sublessor’s determination of Fair Market Rent given under Paragraph 3.C of the Sublease, specifying therein the name and address of the person to act as the appraiser on its behalf. The appraiser shall be qualified as a real estate appraiser (and shall be a member of the Appraisal Institute (MAI) or any comparable successor organization) with at least ten (10) years professional experience and shall be familiar with the rental value of first-class life science space in South San Francisco, California. Failure on the part of Sublessee to make a proper demand and appointment in a timely manner for such appraisal shall constitute a waiver of the right thereto. Within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge service of the Superior Court demand for such appraisal, Sublessor shall give notice to Sublessee, specifying the name and address of San Mateo County the person designated by Sublessor to appoint such Advocate Arbitrator subject to act as the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorappraiser on its behalf who shall be similarly qualified.
2.2.3.6 B. Sublessor’s appraiser and ▇▇▇▇▇▇▇▇▇’s appraiser shall meet not later than fifteen (15) days following the selection of Sublessor’s appraiser. At such meeting, the two (2) appraisers shall attempt to determine the Fair Market Rent for the Subleased Premises for the Extension Period. If the two (2) Advocate Arbitrators fail appraisers agree on the Fair Market Rent at the initial meeting, such agreement shall be determinative and binding upon the parties hereto and the appraisers shall, in simple letter form executed by both appraisers, forthwith notify both parties of the amount set by such agreement. If the two (2) appraisers are unable to agree on the Fair Market Rent, they shall each submit to both parties an independent appraisal of the Fair Market Rent in simple letter form within ten (10) days following the meeting of the appraisers.
C. The appraisers shall appoint a third appraiser, who shall be a competent and impartial person with qualifications similar to those required of the first two appraisers pursuant to subpart (A) above. If they are unable to agree upon and appoint such appointment within seven (7) days after expiration of such fifteen (15) day period, the Neutral Arbitrator, third appraiser shall be appointed by the then either party may petition the presiding judge of the Superior Court of San Mateo County upon application by either party.
D. The three (3) appraisers shall meet not later than fifteen (15) days following the selection of the last appraiser. At such meeting, the three (3) appraisers shall attempt to appoint determine the Neutral ArbitratorFair Market Rent by the agreement of at least two (2) of the appraisers. If two (2) or more of the appraisers agree on the Fair Market Rent at the initial meeting, subject 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 parties of the amount set by such agreement. If two (2) appraisers are unable to criteria agree on the Fair Market Rent, all appraisers shall submit to both parties an independent appraisal of the Fair Market Rent in Section 2.2.3.1 simple letter form within thirty (30) days following appointment of this Leasethe final appraiser. The parties shall then determine the Fair Market Rent by averaging the three (3) appraisals; provided that any high or low appraisal, differing from the middle appraisal by more than ten percent (10%) of the middle appraisal, shall be disregarded in calculating the average.
E. In the event of a failure, refusal or if he or she refuses inability of any appraiser to act, either his or her successor shall be appointed by the party may petition any judge having jurisdiction over that appointed such appraiser, but in the parties to appoint such arbitrator.
2.2.3.7 The cost case of the arbitration third appraiser, his or her successor shall be paid by Landlord and Tenant equally.
2.2.3.8 In appointed in the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement same manner as provided for appointment of the Option Term, Tenant third appraiser. Each party shall be required to pay the Option Rent initially provided by Landlord to Tenant, fee and upon expenses of its respective appraiser and both shall share the final determination fee and expenses of the Option Rentthird appraiser. 1 Office Desks 49 Sit/Stand office desks with integrated power and data cabling 2 Picnic lunch tables 4 Pinic style lunch tables, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.seating for 4 6 Cafeteria Chairs 15 White chairs for seating at tables 005-AB
Appears in 1 contract
Determination of Option Rent. In the event If Tenant timely and appropriately exercises an option to extend delivers the Lease Term---------------------------- Exercise Notice, Landlord shall notify deliver notice (the "OPTION RENT NOTICE") to Tenant on or before the later of (i) the date which is thirty (30) days after Landlord's receipt of the Exercise Notice, or (ii) the date which is twenty-three (23) months prior to the expiration of the initial Lease Term or first Renewal Option Term, as applicable, which Option Rent Notice shall set forth Landlord's initial determination of the "Option Rent," as that term is defined in SECTION 2.3.2 above, and which shall be applicable to this Lease -------------- during the Renewal Option Term. Tenant shall have thirty (30) days ("TENANT'S DETERMINATION PERIOD") after receipt of Landlord’s 's Option Rent Notice within which to accept Landlord's initial determination of the Option Rent or to object thereto in writing to Landlord. If Tenant fails to so object to Landlord's initial determination of the Option Rent within thirty (30) days thereafter. If Tenant's Determination Period, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, Rent shall be as set forth in good faith objects to Landlord’s determination of the Option RentRent Notice. If, then however, Tenant timely objects in writing to the Option Rent initially determined by Landlord, Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten sixty (1060) days following Tenant’s 's objection to the Option Rent (the “Outside Agreement Date”"OUTSIDE AGREEMENT DATE"), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make submit to the other party a separate written determination of the Option Rent, as the case may be, Rent within ten (10) business days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 SECTIONS 2.3.4.1 through 2.2.3.7, 2.3.4.7 below. If Failure ---------------- ------- of Tenant fails or Landlord to object to Landlord’s submit a written determination of the Option Rent within the time such ten (10) business day period set forth herein, then Tenant shall conclusively be deemed to have objected to Landlord’s determination be the non-determining party's approval of the Option RentRent submitted within such ten (10) business day period by the other party.
2.2.3.1 2.3.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a an independent real estate appraiser attorney and/or broker, as either party shall, in its sole discretion elect, who shall is then active and have then been active over the five ten (510) year period ending on the date of such appointment in the appraisal leasing of other class A life sciences buildings located comparable office properties in Los Angeles County, provided that such individual shall not have been engaged or employed by the South San Francisco market areaparty appointing the same within the five (5) year period preceding the date of such appointment. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted determination of Option Rent is the closest to the actual Option RentRent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 SECTION 2.3.2 of this ------------- Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) business days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 2.3.4.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) business days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) arbitrators.
2.2.3.3 2.3.4.3 The three (3) arbitrators shall, shall within thirty (30) days of after the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted determination of Option Rent, Rent and shall notify Landlord and Tenant thereof.
2.2.3.4 2.3.4.4 The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 2.3.4.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) business days after the applicable Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator's decision shall be binding upon Landlord and Tenant.
2.2.3.6 2.3.4.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint a third arbitrator within the Neutral Arbitratortime period provided in SECTION 2.3.4.2 --------------- above, then the parties shall mutually select the third arbitrator. If Landlord and Tenant are unable to agree upon the third arbitrator within ten (10) days after the expiration of the time period provided in SECTION 2.3.4.2 above, then --------------- either party may petition may, upon at least five (5) days prior notice to the presiding judge other party, request the Presiding Judge of the Los Angeles County Superior Court of San Mateo County to appoint the Neutral Arbitratorthird arbitrator. Following the appointment of the third arbitrator, subject the panel of arbitrators shall within thirty (30) days thereafter reach a decision as to criteria in Section 2.2.3.1 of this Lease, whether Landlord's or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitratorTenant's submitted Option Rent shall be used and shall notify Landlord and Tenant thereof.
2.2.3.7 The cost 2.3.4.7 Each party shall pay the fees of the arbitrator appointed by such party and the fees of the third (3rd) arbitrator and any other costs of such arbitration shall be paid by split between Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Determination of Option Rent. In the event Tenant timely and appropriately exercises an the option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten thirty (1030) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) business days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall thereafter make a separate determination of the Option Rent, as the case may be, Rent within ten fifteen (1015) business days after of the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to accept or reject Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to rejected Landlord’s determination of Option Rent, and each party shall make their separate determinations of Option Rent and the matter shall be submitted to arbitration in accordance with the terms hereof.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a an MAI appraiser and/or real estate appraiser broker who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of other first class A life sciences buildings located in the South San Francisco market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen twenty (1520) business days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positionspositions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable). The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”” [*] = Certain confidential information contained in this document, marked by brackets, is filed with the Securities and Exchange Commission pursuant to Rule 406 of the Securities Act of 1933, as amended.
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) business days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that (i) neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearanceappointment, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant during the five (5) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen twenty (1520) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator within ten (10) business days after the appointment of the last appointed Advocate Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 2.2.3.2 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay as Option Rent, an amount equal to 103% of the Option Base Rent initially provided payable by Landlord to TenantTenant as of the expiration of the initial Lease Term, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith but objects to Landlord’s determination of the Option RentRent concurrently with its exercise of the option to extend, then Landlord and Tenant shall attempt to agree in good faith upon the Option Rent using their best good-faith effortsRent. If Landlord and Tenant fail to reach agreement within ten twenty (1020) days following Tenant’s objection to delivery of the Option Rent Notice (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) business days after the Outside Agreement Date, concurrently exchange such determinations and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.3(a) through 2.2.3.7, 2.2.3(g) below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 (a) Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate appraiser broker who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other class A life sciences office space in comparable office buildings located in the South “CBD” of San Francisco market areaFrancisco. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rentfair market rent, as determined by the arbitrators, taking into account the requirements of Section 2.2.2 6.1 of this Lease, as determined by the arbitratorsAmendment. Each such arbitrator shall be appointed within fifteen (15) business days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 (b) The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten five (105) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) arbitrators.
2.2.3.3 (c) The three (3) arbitrators shall, shall within thirty five (305) days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, Rent and shall notify Landlord and Tenant thereof.
2.2.3.4 (d) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 (e) If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) business days after the applicable Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 (f) If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitratora third arbitrator, or both parties fail to appoint an arbitrator, then either party may petition the presiding judge appointment of the Superior Court third arbitrator or any arbitrator shall be dismissed and the Option Rent to be decided shall be forthwith submitted to arbitration under the provisions of San Mateo County to appoint the Neutral ArbitratorAmerican Arbitration Association, but subject to criteria the instruction set forth in this Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator6.3.
2.2.3.7 (g) The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Lease (Plumtree Software Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option objects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option First Offer Rent, in good faith objects to Landlord’s determination of the Option Rentas applicable), then Landlord and Tenant shall attempt to agree upon the Option Rent (or First Offer Rent, if applicable) using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) business days following Tenant’s objection to the Option Rent (or First Offer Rent, as applicable) (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent (or First Offer Rent, as the case may be, applicable) within ten five (105) days after the Outside Agreement Datebusiness days, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.3.4.1 through 2.2.3.7, 2.3.4.7 below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.3.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate appraiser broker who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other class A life sciences buildings located in the South San Francisco market areaComparable Buildings. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Option Rent (or First Offer Rent, if applicable) is the closest to the actual Option Rent (or First Offer Rent, if applicable) as determined by the arbitrators, taking into account the requirements of Section 2.2.2 2.3.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 2.3.4.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitratorsarbitrators, except provided that neither the third arbitrator shall not be then representing Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 2.3.4.3 The three arbitrators shall, shall within thirty (30) days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent (or First Offer Rent, if applicable) and shall notify Landlord and Tenant thereof.
2.2.3.4 2.3.4.4 The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 2.3.4.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 2.3.4.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Leasea third arbitrator, or if he both parties fail to appoint an arbitrator, then the appointment of the third arbitrator or she refuses any arbitrator shall be dismissed and the matter to actbe decided shall be forthwith submitted to binding, either party may petition any judge having jurisdiction over final, non-appealable arbitration before a JAMS arbitrator mutually agreed upon by Landlord and Tenant. If Landlord and Tenant cannot agree on the arbitrator, the parties will so inform JAMS, who will then be authorized to appoint such arbitratorselect a JAMS judge to arbitrate the matter. Each party shall have the right of discovery pursuant to the California Code of Civil Procedure and evidentiary hearings shall be governed by the California Evidence Code, but subject to the instruction set forth in this Section 2.4.4.
2.2.3.7 2.3.4.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Office Lease (ZS Pharma, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option objects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before in the date which is ten (10) days following the date upon which event that Tenant receives Landlord’s determination of shall deliver the Option Rent, in good faith objects to Landlord’s determination of Exercise Notice without having delivered the Option RentInterest Notice, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s objection to the Option Rent or within thirty (30) days following the date of Tenant’s delivery of the Option Exercise Notice if Tenant did not deliver the Option Interest Notice, as the case may be (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten (10) days after the Outside Agreement Datebusiness days, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.4.1 through 2.2.3.72.2.4.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate appraiser broker or lawyer who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other class A life sciences buildings located commercial high-rise properties in the South San Francisco market areadowntown Bellevue, Washington. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Option Rent Rent, is the closest to the actual Option RentRent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 2.2.4.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counselarbitrators.
2.2.3.3 2.2.4.3 The three arbitrators shall, shall within thirty (30) days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 2.2.4.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 2.2.4.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 2.2.4.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitratora third arbitrator, or both parties fail to appoint an arbitrator, then either party may petition the presiding judge appointment of the Superior Court third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of San Mateo County to appoint the Neutral ArbitratorAmerican Arbitration Association, but subject to criteria the instruction set forth in this Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator2.2.4.
2.2.3.7 2.2.4.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term. 692326.07/WLA 123056-00076/7-12-12/ral/sew EXHIBIT A-1 -5- PLAZA CENTER [Blucora, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.Inc.]
Appears in 1 contract
Sources: Office Lease (Blucora, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately irrevocably exercises an its option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of but rejects the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of set forth in the Option RentRent Notice pursuant to Section 2.2.3, in good faith objects to Landlord’s determination of the Option Rentabove, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection upon the Option Rent applicable to the Option Rent Term on or before the date that is ninety (90) days prior to the expiration of the initial Lease Term (the “Outside Agreement Date”), then Tenant the Option Rent shall have the right to withdraw its exercise of the option be determined by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease arbitration as required pursuant to the terms of this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option2.2.4, and each party shall thereafter make a separate determination of the Option Rent, as the case may be, within ten five (105) days after following the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.4.1 through 2.2.3.72.2.4.4, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate MAI appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of other appraising office rent applicable to first class A life sciences buildings located office properties in the South San Francisco market areavicinity of the Building. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option RentRent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positionspositions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable). The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 2.2.4.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, Arbitrators except that (i) neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant during the five (5) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel. The decision of the Neutral Arbitrator shall be binding on Landlord and Tenant.
2.2.3.3 The three arbitrators shall, within thirty 2.2.4.3 Within ten (3010) days following the appointment of the Arbitrator, Landlord and Tenant shall enter into an arbitration agreement (the “Arbitration Agreement”) which shall set forth the following:
(i) Each of Landlord’s and Tenant’s best and final and binding determination of the Option Rent exchanged by the parties pursuant to Section 2.2.4, above;
(ii) An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, and shall require the Neutral Arbitrator to demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant;
(iii) That Landlord and Tenant shall each have the right to submit to the Neutral Arbitrator (with a copy to the other party), on or before the date that occurs fifteen (15) business days following the appointment of the Neutral Arbitrator, reach an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord or Tenant, as the case may be, in support of Landlord’s or Tenant’s respective determination of Option Rent (the “Briefs”);
(iv) That within five (5) business days following the exchange of Briefs, Landlord and Tenant shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s Brief (the “Rebuttals”); provided, however, such Rebuttals shall be limited to the facts and arguments raised in the other party’s Brief and shall identify clearly which argument or fact of the other party’s Brief is intended to be rebutted;
(v) The date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Advocate Arbitrators, Landlord and Tenant, and each party’s applicable consultants, which date shall in any event be within sixty (60) days following the appointment of the Neutral Arbitrator;
(vi) That no discovery shall take place in connection with the arbitration, other than to verify the factual information that is presented by Landlord or Tenant;
(vii) That the Neutral Arbitrator shall not be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant, except that the Neutral Arbitrator shall be permitted to visit the Project and the buildings containing the Comparable Transactions;
(viii) That Landlord and Tenant shall be allowed to present oral arguments, including rebuttal arguments, at the arbitration; and
(ix) That, not later than ten (10) days after the date of the arbitration, the Neutral Arbitrator shall render a decision as to (the “Ruling”) indicating whether the parties shall use Landlord’s or Tenant’s submitted Option Rent is closer to the Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 2.2.4.4 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent Rent, initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party. Landlord and Tenant shall each pay the fees of their respective Advocate Arbitrator, and the fees of the Neutral Arbitrator shall be paid one-half by Landlord and one-half by Tenant.
Appears in 1 contract
Sources: Office Lease (Audience Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s 's determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) business days following the date upon which Tenant ▇▇▇▇▇▇ receives Landlord’s 's determination of the Option Rent, in good faith objects to Landlord’s 's determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) business days following Tenant’s 's objection to the Option Rent (the “"Outside Agreement Date”"), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall thereafter make a separate determination of the Option Rent, as the case may be, within ten (10) business days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to accept or reject Landlord’s 's determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s 's determination of Option Rent, and each party shall make their separate determinations of Option Rent and the matter shall be submitted to arbitration in accordance with the terms hereof.
2.2.3.1 2.2.3.1. Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings First Class Life Sciences Projects located in the South San Francisco market areaSorrento Mesa submarket. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) business days after the Outside Agreement Date. Landlord ▇▇▇▇▇▇▇▇ and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positionspositions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable). The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators.”"
2.2.3.2 2.2.3.2. The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) business days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“"Neutral Arbitrator”") who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ ' Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearanceappointment, and the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant during the five (5) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s ▇▇▇▇▇▇▇▇'s counsel and Tenant’s ▇▇▇▇▇▇'s counsel.
2.2.3.3 2.2.3.3. The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 2.2.3.4. The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 2.2.3.5. If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo Diego County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 2.2.3.6. If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator within ten (10) business days after the appointment of the last appointed Advocate Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo Diego County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 2.2.3.7. The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Lease (Kura Oncology, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease TermTerm pursuant to Section 8(a), above, Landlord shall notify deliver written notice (the “Landlord Response Notice”) to Tenant on or before the date which is thirty (30) days after ▇▇▇▇▇▇▇▇’s receipt of the Exercise Notice of Landlord’s determination of the Option Rent within thirty (30) days thereafterRent. If Tenant, on or before the date which is Within ten (10) business days following its receipt of the date upon which Landlord Response Notice, Tenant receives shall notify Landlord in writing whether it accepts or objects to the Option Rent set forth in Landlord’s determination of Response Notice. If Tenant fails to accept or object to the Option RentRent set forth in Landlord’s Response Notice within such ten (10) business day period, the Option Rent applicable during the Option Term shall be the amount set forth in Landlord’s Response Notice. In the event that Tenant in good faith objects to Landlord’s determination of the Option RentRent within the aforementioned ten (10) business day period, then Landlord and Tenant shall meet and attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following of Tenant’s objection to the Landlord’s Option Rent (the “Outside Agreement Date”), then the Option Rent shall be determined by arbitration in accordance with Section 8(c)(i) through Section 8(c)(iv), below.
(i) Within ten (10) business days after the Outside Agreement Date, Landlord and Tenant shall agree upon a list of three (3) independent, unaffiliated real estate brokers with at least ten (10) years’ full-time experience leasing institutionally-owned commercial properties within ten (10) miles of the Project. Within five (5) days after agreement upon the list of brokers, Landlord and Tenant shall meet and each shall have the right to withdraw its exercise disqualify one (1) of the option brokers until only one (1) broker (“Arbitrator”) has not been disqualified by delivering written notice thereof to either Landlord within five or Tenant.
(5ii) Within fifteen (15) days thereafter, in which event Tenant’s right to extend after the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise appointment of the extension optionArbitrator, each party shall make a separate determination of the Option Rent, as the case may be, within ten (10) days after the Outside Agreement Date, Rent and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s submit its determination of the Option Rent within to the time period set forth herein, then Tenant Arbitrator and the Arbitrator shall be deemed to have objected to Landlord’s determination of independently determine the Option Rent.
2.2.3.1 . The Option Rent shall equal the Option Rent submitted by Landlord and or Tenant shall each appoint one arbitrator who shall be a real estate appraiser who shall have been active over that is closest to the five (5) year period ending on Option Rent determined by the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco market areaArbitrator. The determination of the arbitrators Arbitrator in accordance with this Section 8(c) shall be limited solely final and binding on the parties and a judgment may be rendered thereon in a court of competent jurisdiction.
(iii) If the parties fail to select the issue of whether Landlord’s three (3) qualified brokers or Tenant’s submitted Option Rent is the closest to the actual Option RentArbitrator, taking into account the requirements of Section 2.2.2 of this Lease, as determined either Landlord or Tenant by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within giving ten (10) days days’ written notice to the other party, can apply to the American Arbitration Association office in the county in which the Premises is located for the selection of the date of Arbitrator who meets the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counselqualifications stated in this Section.
2.2.3.3 The three arbitrators shall, within thirty (30iv) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 . In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent Rent, initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Lease (Intevac Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option objects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenantor First Offer Rent), on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent (or First Offer Rent) using their best good-good faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) business days following Tenant’s objection to the Option Rent or First Offer Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, Rent or First Offer Rent within ten five (105) business days after the applicable Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.4.1 through 2.2.3.7, 2.2.4.7 below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.2.4.1. Landlord and Tenant shall each appoint one arbitrator who shall be by profession a real estate appraiser lawyer who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other class A life sciences buildings located commercial high-rise properties in the South San Francisco market areaCentury City area of Los Angeles, California. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent or First Offer Rent is the closest to the actual Option RentRent or First Offer Rent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the applicable Outside Agreement Date.
2.2.4.2. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators(2) arbitrators, except and provided that neither the such third arbitrator shall not have previously represented either Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearanceTenant.
2.2.4.3. The Neutral Arbitrator three (3) arbitrators shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, Rent or First Offer Rent and shall notify Landlord and Tenant thereof.
2.2.3.4 2.2.4.4. The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 2.2.4.5. If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) days after the applicable Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.arbitrator’s decision shall be binding upon Landlord and Tenant,
2.2.3.6 2.2.4.6. If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Leasea third arbitrator, or if he or she refuses to act, either party may petition any judge having jurisdiction over the both parties fail to appoint such an arbitrator, then the appointment of the third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration Association, but subject to the instruction set forth in this Section 2.2.4.
2.2.3.7 The 2.2.4.7. Landlord and Tenant shall each pay the cost of their respective arbitrators, and the cost of the arbitration third arbitrator shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of but rejects the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of set forth in the Option RentRent Notice pursuant to Section 2.2.3, in good faith objects to Landlord’s determination of the Option Rentabove, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection upon the Option Rent applicable to the Option Rent Term on or before the date that is ninety (90) days prior to the expiration of the initial Lease Term (the “"Outside Agreement Date”"), then Tenant the Option Rent shall have the right to withdraw its exercise of the option be determined by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease arbitration pursuant to the terms of this Section 2.2 shall be of no further force or effect2.2.4. If Tenant does not withdraw its exercise of the extension option, each Each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) days after following the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.4.1 through 2.2.3.72.2.4.4, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a MAI appraiser, real estate appraiser broker or real estate lawyer who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal appraising and/or leasing of other class A life sciences buildings located single and two-story office/R&D properties in the South San Francisco market areavicinity of the Building. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s 's or Tenant’s 's submitted Option Rent is the closest to the actual Option RentRent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positionspositions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable). The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators.”"
2.2.3.2 2.2.4.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“"Neutral Arbitrator”") who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, Arbitrators except that (i) neither the Landlord or nor Tenant or nor either parties’ ' Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant during the five (5) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s 's counsel and Tenant’s 's counsel.
2.2.3.3 The three arbitrators shall, within thirty 2.2.4.3 Within ten (3010) days of following the appointment of the Neutral Arbitrator, reach Landlord and Tenant shall enter into an arbitration agreement (the "Arbitration Agreement") which shall set forth the following:
2.2.4.3.1 Each of Landlord's and Tenant's best and final and binding determination of the Option Rent exchanged by the parties pursuant to Section 2.2.4, above;
2.2.4.3.2 An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as to whether modified by the parties shall use Landlord’s or Tenant’s submitted Option RentArbitration Agreement, and shall notify require the Neutral Arbitrator to demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant;
2.2.4.3.3 Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
2.2.4.3.4 That Landlord and Tenant thereof.
2.2.3.4 The decision of shall each have the majority of right to submit to the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord Neutral Arbitrator (with a copy to the other party), on or Tenant fails to appoint an Advocate Arbitrator within before the date that occurs fifteen (15) days after following the Outside Agreement Date, then either party may petition the presiding judge appointment of the Superior Court Neutral Arbitrator, an advocate statement (and any other information such party deems relevant) prepared by or on behalf of San Mateo County Landlord or Tenant, as the case may be, in support of Landlord's or Tenant's respective determination of Option Rent (the "Briefs");
2.2.4.3.5 That within five (5) business days following the exchange of Briefs, Landlord and Tenant shall each have the right to appoint such Advocate provide the Neutral Arbitrator subject (with a copy to the criteria other party) with a written rebuttal to the other party's Brief (the "First Rebuttals"); provided, however, such First Rebuttals shall be limited to the facts and arguments raised in Section 2.2.3.1 the other party's Brief and shall identify clearly which argument or fact of this Leasethe other party's Brief is intended to be rebutted;
2.2.4.3.6 That within five (5) business days following the parties' receipt of each other's First Rebuttal, Landlord and Tenant, as applicable, shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party's First Rebuttal (the "Second Rebuttals"); provided, however, such Second Rebuttals shall be limited to the facts and arguments raised in the other party's First Rebuttal and shall identify clearly which argument or if he fact of the other party's First Rebuttal is intended to be rebutted;
2.2.4.3.7 The date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Advocate Arbitrators, Landlord and Tenant, and each party's applicable consultants, which date shall in any event be within forty-five (45) days following the appointment of the Neutral Arbitrator;
2.2.4.3.8 That no discovery shall take place in connection with the arbitration, other than to verify the factual information that is presented by Landlord or she refuses Tenant;
2.2.4.3.9 That the Neutral Arbitrator shall not be allowed to actundertake an independent investigation or consider any factual information other than presented by Landlord or Tenant, either party may petition any judge having jurisdiction over except that the parties Neutral Arbitrator shall be permitted to appoint such Advocate Arbitrator.visit the Project and the buildings containing the Comparable Transactions;
2.2.3.6 If 2.2.4.3.10 The specific persons that shall be allowed to attend the arbitration;
2.2.4.3.11 Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours ("Tenant's Initial Statement");
2.2.4.3.12 Following Tenant's Initial Statement, Landlord shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours ("Landlord's Initial Statement");
2.2.4.3.13 Following Landlord's Initial Statement, Tenant shall have up to two (2) Advocate Arbitrators fail additional hours to agree upon and appoint present additional arguments and/or to rebut the arguments of Landlord ("Tenant's Rebuttal Statement");
2.2.4.3.14 Following Tenant's Rebuttal Statement, Landlord shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Tenant;
2.2.4.3.15 That, not later than ten (10) days after the date of the arbitration, the Neutral Arbitrator, then either party may petition Arbitrator shall render a decision (the presiding judge "Ruling") indicating whether Landlord's or Tenant's submitted Option Rent is closer to the Option Rent;
2.2.4.3.16 That following notification of the Superior Court of San Mateo County to appoint Ruling, Landlord's or Tenant's submitted Option Rent determination, whichever is selected by the Neutral Arbitrator, subject Arbitrator as being closer to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to become the terms hereof prior to then applicable Option Rent; and
2.2.4.3.17 That the commencement decision of the Option Term, Tenant Neutral Arbitrator shall be required binding on Landlord and Tenant. If a date by which an event described in Section 2.2.4.3, above, is to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rentoccur falls on a weekend or a holiday, the payments made by Tenant date shall be reconciled with deemed to be the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other partynext business day.
Appears in 1 contract
Sources: Office Lease (INPHI Corp)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty no earlier than twelve (3012) days thereafterand no later than eight (8) months prior to the Lease Expiration Date. If Tenant, on or before the date which is ten thirty (1030) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) days after the Outside Agreement Datedays, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to accepted Landlord’s determination of Option Rent.
2.2.3.1 If Landlord and Tenant fail to reach agreement prior to the Outside Agreement Date, then Landlord and Tenant shall each appoint one arbitrator who shall be be, at the option of the appointing party, a qualified real estate broker or appraiser who shall have been active over the five ten (510) year period ending on the date of such appointment in the appraisal leasing of other class A comparable life sciences buildings located in the South city of San Francisco market areaDiego. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators”.”
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter letter, within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to Arbitrator, agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ party’s Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge then-President of the Superior Court of San Mateo County Diego Real Estate Board to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge then-President of the Superior Court of San Mateo County Diego Real Estate Board to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 2 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.. 176640186.8 373606-000050
2.2.3.7 The cost of the arbitration Neutral Arbitrator shall be paid by Landlord and Tenant equallyequally and each of Landlord and Tenant shall pay the cost of its respective Advocate Arbitrator.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option most recent Base Rent initially provided by Landlord rate in effect during the initial Lease Term as adjusted to Tenantreflect a 3% increase in such rate, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall shall, within thirty (30) days thereafter, make any corresponding payment to the other party.
2.2.3.9 The terms of the Lease during any Option Term shall be the same as the terms during the initial Lease Term, other than as expressly set forth in this Section 2.2.
Appears in 1 contract
Sources: Lease (Organovo Holdings, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option objects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of deemed to have rejected the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent Fair Market Rental Rate for the Premises, using their best reasonable good-faith efforts. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s 's objection or deemed objection to the Option Rent (the “Outside Agreement Date”"OUTSIDE AGREEMENT DATE"), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, Rend as the case may be, within ten five (105) business days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 Paragraphs 22.4.1 through 2.2.3.722.4.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 22.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate broker, appraiser or attorney who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing (or appraisal, as the case may be) of other first class A life sciences buildings located office properties in the South San Francisco market areaLos Angeles County, California. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s 's or Tenant’s 's submitted Option Rent Fair Market Rental Rate, is the closest to the actual Option RentFair Market Rental Rate as determined by the arbitrators, taking into account the requirements of Section 2.2.2 Paragraph 22.5 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators.”"
2.2.3.2 22.4.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the me appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator arbitrator(“" Neutral Arbitrator”") who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ patties Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an 4n engagement letter jointly prepared by Landlord’s 's counsel and Tenant’s 's counsel.
2.2.3.3 22.4.3 The three arbitrators shall, shall within thirty (30) days of the appointment of the Neutral Arbitrator, Arbitrator reach a decision as to Fair Market Rental Rate and determine whether the parties shall use Landlord’s 's or Tenant’s 's determination of Fair Market Rental Rate as submitted Option Rentpursuant to Paragraph 22.4, above, is closest to Fair Market Rental Rate as determined by the arbitrators and simultaneously publish a ruling ("Award") indicating whether Landlord's or Tenant's submitted Fair Market Rental Rate is closest to the Fair Market Rental Rate as determined by the arbitrators. Following notification of the Award, the Landlord's or Tenant's submitted Fair Market Rental Rate determination, whichever is selected by the arbitrators as being closest to Fair Market Rental Rate, shall notify Landlord and Tenant thereofbecome the then applicable Fair Market Rental Rate.
2.2.3.4 22.4.4 The decision of Award issued by the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 22.4.5 If either Landlord or Tenant fails fail to appoint an Advocate Arbitrator within fifteen (15) days after the applicable Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo Los Angeles County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 Paragraph 22.4.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 22.4.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo Los Angeles County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 Paragraph 22.4.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 22.4.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Office Lease (L90 Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s 's determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s 's determination of the Option Rent, in good faith objects to Landlord’s 's determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s 's objection to the Option Rent (the “"Outside Agreement Date”"), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s 's right to extend the Lease pursuant to this Section 2.2 3.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten (10) days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 3.2.3.1 through 2.2.3.73.2.3.7, below. If Tenant fails to object to Landlord’s 's determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to accepted Landlord’s 's determination of Option Rent.
2.2.3.1 3.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be a real estate appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco Hayward market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 3.2.2 of this LeaseFifth Amendment, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators.”"
2.2.3.2 3.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“"Neutral Arbitrator”") who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ ' Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s 's counsel and Tenant’s counsel.
2.2.3.3 3.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 3.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 3.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo Alameda County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 3.2.3.1 of this LeaseFifth Amendment, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 3.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo Alameda County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 3.2.3.1 of this LeaseFifth Amendment, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 3.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 3.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Lease (Arcus Biosciences, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s 's determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) business days following the date upon which Tenant ▇▇▇▇▇▇ receives Landlord’s 's determination of the Option Rent, in good faith objects to Landlord’s 's determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) business days following Tenant’s 's objection to the Option Rent (the “"Outside Agreement Date XE "Outside Agreement Date”" "), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s 's right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten (10) days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant ▇▇▇▇▇▇ fails to object to Landlord’s accept ▇▇▇▇▇▇▇▇'s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s 's determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be a real estate appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco Brisbane market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord ▇▇▇▇▇▇▇▇ and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators XE "Advocate Arbitrators" .”"
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“"Neutral Arbitrator XE "Neutral Arbitrator”" ") who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ ' Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s ▇▇▇▇▇▇▇▇'s counsel and Tenant▇▇▇▇▇▇’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.. DOCPROPERTY "Document number" 4884-2045-4146. DOCPROPERTY "Document version" 4 DOCPROPERTY "Client" 186772. DOCPROPERTY "Matter" 00003/ SAVEDATE \@ M-d-yy 3-21-23/ DOCPROPERTY "User Init" mem/ DOCPROPERTY "Typist Init" ejs DOCPROPERTY "Footer Notes" HEALTHPEAK[Towers at Sierra Point][Tempest Therapeutics, Inc.]
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator within ten (10) days after the appointment of the last appointed Advocate Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay as Option Rent, an amount equal to 103% of the Option Base Rent initially provided payable by Landlord to TenantTenant as of the expiration of the initial Lease Term, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Lease (Tempest Therapeutics, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option the Option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of Extend but rejects the Option Rent within thirty (30) days thereafter. If Tenantset forth in the Landlord's Option Rent Notice pursuant to Section 2.2.3 above, on or before or, with respect to the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option First Offer Rent, in good faith if Tenant exercises its Right of First Offer but timely objects to Landlord’s 's determination of First Offer Rent as set forth in the Option RentFirst Offer Notice, then Landlord and Tenant shall attempt to agree upon the Option Rent (or the First Offer Rent) using their best good-faith efforts. If Landlord and Tenant fail to reach agreement upon (i) the Option Rent applicable to the Option Term on or before the date that is ninety (90) days prior to the expiration of the Lease Term or the initial Option Term, as applicable, or (ii) the First Offer Rent within ten thirty (1030) days following the date of Tenant’s 's objection notice to the First Offer Rent (each, an "Outside Agreement Date"), then the Option Rent (the “Outside Agreement Date”)or First Offer Rent, then Tenant as applicable) shall have the right to withdraw its exercise of the option be determined by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease arbitration pursuant to the terms of this Section 2.2 shall be of no further force or effect2.2.4. If Tenant does not withdraw its exercise of the extension option, each Each party shall make a separate determination of the Option Rent, as Market Rent (the case may be"Exchanged Market Rents"), within ten five (105) days after following the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.4.1 through 2.2.3.72.2.4.4, below. If Tenant fails to object to Landlord’s The determination of the Option Rent within the time period set forth herein, then Tenant arbitrators shall be deemed limited solely to have objected the issue of whether Landlord's or Tenant's Exchanged Market Rents determination is the closest to Landlord’s determination the actual Market Rent as determined by the arbitrators, taking into account the requirements of Option RentSection 2.2 of this Lease.
2.2.3.1 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall be be, at the option of the appointing party, a real estate broker, appraiser or attorney who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s leasing or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Leaseappraisal, as determined by the arbitratorscase may be, of "Comparable Buildings," as that term is defined in Exhibit G attached hereto. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positionspositions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable). The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators.”"
2.2.3.2 2.2.4.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“"Neutral Arbitrator”") who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that (i) neither the Landlord or Tenant or either parties’ ' Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented 795678.02/WLA376514-00007/1-28-19/ctl/ctl -8- 630 ROSEVILLE PARKWAY[Penumbra, Inc.] Landlord and/or Tenant during the five (5) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s 's counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty 2.2.4.3 Within ten (3010) days of following the appointment of the Neutral Arbitrator, reach Landlord and Tenant shall enter into an arbitration agreement (the "Arbitration Agreement") which shall set forth the following:
(a) Each of Landlord's and Tenant's Exchanged Market Rents exchanged by the parties pursuant to Section 2.2.4, above;
(b) An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as to whether modified by the parties shall use Landlord’s or Tenant’s submitted Option RentArbitration Agreement, and shall notify require the Neutral Arbitrator to demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant;
(c) Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
(d) That Landlord and Tenant thereof.shall each have the right to submit to the Neutral Arbitrator (with a copy to the other party), on or before the date that occurs fifteen (15) days following the appointment of the Neutral Arbitrator, an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord or Tenant, as the case may be, in support of Landlord's or Tenant's respective Exchanged Market Rents (the "Briefs");
2.2.3.4 (e) That within five (5) business days following the exchange of Briefs, Landlord and Tenant shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party's Brief; provided, however, such rebuttals shall be limited to the facts and arguments raised in the other party's Brief and shall identify clearly which argument or fact of the other party's Brief is intended to be rebutted;
(f) The date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Advocate Arbitrators, Landlord and Tenant, and each party's applicable consultants, which date shall in any event be within forty-five (45) days following the appointment of the Neutral Arbitrator;
(g) That no discovery shall take place in connection with the arbitration, other than to verify the factual information that is presented by Landlord or Tenant;
(h) That the Neutral Arbitrator shall not be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant, except that the Neutral Arbitrator shall be permitted to visit the Project and the buildings containing the Comparable Transactions;
(i) Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours ("Tenant's Initial Statement");
(j) Following Tenant's Initial Statement, Landlord shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours;
(k) That, not later than ten (10) days after the date of the arbitration, the 795678.02/WLA376514-00007/1-28-19/ctl/ctl -9- 630 ROSEVILLE PARKWAY[Penumbra, Inc.] Neutral Arbitrator shall render a decision (the "Ruling") indicating whether Landlord's or Tenant's Exchanged Market Rents determination is closer to the Market Rent;
(l) That following notification of the Ruling, Landlord's or Tenant's Exchanged Market Rents determination, whichever is selected by the Neutral Arbitrator as being closer to the Market Rent, shall become the then applicable Option Rent (or First Offer Rent, as applicable); and
(m) That the decision of the majority of the three arbitrators Neutral Arbitrator shall be binding upon on Landlord and Tenant.
2.2.3.5 (n) If either Landlord or Tenant fails to appoint a date by which an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria event described in Section 2.2.3.1 of this Lease2.2.4.3 above, is to occur falls on a weekend or if he or she refuses a holiday, the date shall be deemed to act, either party may petition any judge having jurisdiction over be the parties to appoint such Advocate Arbitratornext business day.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 2.2.4.4 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Office Lease (Penumbra Inc)
Determination of Option Rent. In the event If Tenant timely and appropriately exercises an option objects in its Exercise Notice to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of to the Option Rent within thirty initially determined by Landlord (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of and set forth in the Option Rent, in good faith objects to Landlord’s determination of the Option RentRent Notice), then Landlord and Tenant shall attempt in good faith to agree upon the Option Rent using their best good-faith effortsFair Market Rental Rate. If Landlord and Tenant fail to reach agreement within ten (10) business days following Tenant’s objection to the Option Rent 's delivery of such Exercise Notice (the “"Outside Agreement Date”"), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make submit to the other party a separate written determination of the Option Rent, as the case may be, Fair Market Rental Rate within ten fifteen (1015) business days after the Outside Agreement DateDate (except that Landlord's determination shall be no higher than as set forth in the Option Rent Notice), and such determinations shall be submitted to arbitration in accordance with the provisions of Sections 2.2.3.1 4.1 through 2.2.3.7, 4.7 below. If The failure of Tenant fails or Landlord to object to Landlord’s submit a written determination of the Option Rent Fair Market Rental Rate within the time such fifteen (15) business day period set forth herein, then Tenant shall conclusively be deemed to have objected to Landlord’s determination be such party's approval of Option Rentthe Fair Market Rental Rate submitted within such fifteen (15) business day period by the other party.
2.2.3.1 4.1 Landlord and Tenant shall each appoint one (1) arbitrator who shall by profession be a an independent real estate appraiser broker who shall have no ongoing relationship with Tenant or Landlord and who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other class A life sciences buildings located space in the South San Francisco market areaComparable Buildings. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Option Rent Fair Market Rental Rate is the closest closer to the actual Option RentFair Market Rental Rate as determined by the arbitrators, taking into account the requirements of with respect thereto set forth in Section 2.2.2 of this Lease, as determined by the arbitrators2 above. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 4.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter shall, within ten fifteen (1015) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator, agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) arbitrators.
2.2.3.3 4.3 The three (3) arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitratorthird arbitrator, reach a decision as to whether the parties shall use which of Landlord’s 's or Tenant’s 's submitted Option Rent, Fair Market Rental Rate is closer to the actual Fair Market Rental Rate and shall select such closer determination as the Fair Market Rental Rate and notify Landlord and Tenant thereof.
2.2.3.4 4.4 The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 4.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria time period specified in Section 2.2.3.1 4.1 hereinabove, the arbitrator appointed by one of this Leasethem shall reach a decision, or if he or she refuses to actnotify Landlord and Tenant thereof, either party may petition any judge having jurisdiction over the parties to appoint and such Advocate Arbitrator.arbitrator's decision shall be binding upon Landlord and Tenant. 841121.07/SD 371692-00006/2-27-20/MLT/pah RIDER 1 -2- 12278 SCRIPPS SUMMIT DRIVE [Fate Therapeutics, Inc.]
2.2.3.6 4.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint a third arbitrator, within the Neutral Arbitratortime period provided in Section 4.2 above, then the parties shall mutually select the third arbitrator. If Landlord and Tenant are unable to agree upon the third arbitrator within ten (10) days after the fifteen (15) day period described in Section 4.2 above, then either party may petition may, upon at least five (5) days' prior written notice to the presiding judge other party, request the Presiding Judge of the San Diego County Superior Court of San Mateo County Court, acting in his private and nonjudicial capacity, to appoint the Neutral Arbitratorthird arbitrator. Following the appointment of the third arbitrator, subject the panel of arbitrators shall within thirty (30) days thereafter reach a decision as to criteria in Section 2.2.3.1 of this Lease, whether Landlord's or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitratorTenant's submitted Fair Market Rental Rate shall be used and shall notify Landlord and Tenant thereof.
2.2.3.7 4.7 The cost of the arbitrators and the arbitration proceeding shall be paid by Landlord and Tenant equallythe non-prevailing party.
2.2.3.8 4.8 In the event that the Option new monthly Base Rent shall is not have been determined pursuant to the terms hereof established prior to the end of the then current Lease Term, the monthly Base Rent immediately payable at the commencement of the such Option Term, Tenant Term shall be required to pay the Option monthly Base Rent initially provided by Landlord to Tenantpayable in the immediately preceding month. Notwithstanding the above, and upon once the final determination of the Option Rentfair market rental is determined in accordance with this Section 4, the payments made by Tenant parties shall be reconciled with settle any underpayment or overpayment on the actual amounts of Option next monthly Base Rent due, and the appropriate party shall make any corresponding payment to the other partydate falling not less than thirty (30) days after such determination.
Appears in 1 contract
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option Option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of Extend but rejects (or is deemed to reject) the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of set forth in the Option RentRent Notice pursuant to Section 2.2.3, in good faith objects to Landlord’s determination of the above (or if Tenant did not deliver an Option RentInterest Notice, and therefore Landlord did not deliver an Option Rent Notice), then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection upon the Option Rent applicable to the Option Rent Term on or before the date that is ninety (90) days prior to the expiration of the initial Lease Term or the first Option Term, as applicable (the “"Outside Agreement Date”"), then Tenant the Option Rent shall have the right to withdraw its exercise of the option be determined by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease arbitration pursuant to the terms of this Section 2.2 shall be of no further force or effect2.2.4. If Tenant does not withdraw its exercise of the extension option, each Each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) days after following the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.4.1 through 2.2.3.72.2.4.4, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate MAI appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal appraising and/or leasing of other first class A life sciences buildings located office properties in the South San Francisco market areavicinity of the Building. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s 's or Tenant’s 's submitted Option Rent is the closest to the actual Option RentRent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positionspositions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable). The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators.”"
2.2.3.2 2.2.4.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“"Neutral Arbitrator”") who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, Arbitrators except that (i) neither the Landlord or Tenant or either parties’ ' Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant or their affiliates during the five (5) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s 's counsel and Tenant’s 's counsel. Each party shall pay for the costs of its own Advocate Arbitrator and fifty percent (50%) of the cost of the Neutral Arbitrator.
2.2.3.3 The three arbitrators shall, within thirty 2.2.4.3 Within ten (3010) days of following the appointment of the Neutral Arbitrator, reach Landlord and Tenant shall enter into an arbitration agreement (the "Arbitration Agreement") which shall set forth the following:
2.2.4.3.1 Each of Landlord's and Tenant's best and final and binding determination of the Option Rent exchanged by the parties pursuant to Section 2.2.4, above;
2.2.4.3.2 An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as to whether modified by the parties shall use Landlord’s or Tenant’s submitted Option RentArbitration Agreement, and shall notify require the Neutral Arbitrator to demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant;
2.2.4.3.3 Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
2.2.4.3.4 That Landlord and Tenant thereof.
2.2.3.4 The decision of shall each have the majority of right to submit to the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord Neutral Arbitrator (with a copy to the other party), on or Tenant fails to appoint an Advocate Arbitrator within before the date that occurs fifteen (15) days after following the Outside Agreement Date, then either party may petition the presiding judge appointment of the Superior Court Neutral Arbitrator, an advocate statement (and any other information such party deems relevant) prepared by or on behalf of San Mateo County Landlord or Tenant, as the case may be, in support of Landlord's or Tenant's respective determination of Option Rent (the "Briefs");
2.2.4.3.5 That within five (5) business days following the exchange of Briefs, Landlord and Tenant shall each have the right to appoint such Advocate provide the Neutral Arbitrator subject (with a copy to the criteria other party) with a written rebuttal to the other party's Brief (the "Rebuttals"); provided, however, such Rebuttals shall be limited to the facts and arguments raised in Section 2.2.3.1 the other party's Brief and shall identify clearly which argument or fact of this Leasethe other party's Brief is intended to be rebutted;
2.2.4.3.6 The date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Advocate Arbitrators, Landlord and Tenant, and each party's applicable consultants, which date shall in any event be within thirty (30) days following the appointment of the Neutral Arbitrator;
2.2.4.3.7 That no discovery shall take place in connection with the arbitration, other than to verify the factual information that is presented by Landlord or if he Tenant;
2.2.4.3.8 That the Neutral Arbitrator shall not be allowed to undertake an independent investigation or she refuses consider any factual information other than presented by Landlord or Tenant, except that the Neutral Arbitrator shall be permitted to act, either party may petition any judge having jurisdiction over visit the parties Project and the buildings containing the Comparable Transactions;
2.2.4.3.9 The specific persons that shall be allowed to appoint such Advocate Arbitrator.attend the arbitration;
2.2.3.6 If 2.2.4.3.10 Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed two (2) Advocate Arbitrators fail hours ("Tenant's Initial Statement");
2.2.4.3.11 Following Tenant's Initial Statement, Landlord shall have the right to agree upon and appoint present oral arguments to the Neutral ArbitratorArbitrator at the arbitration for a period of time not to exceed two (2) hours ("Landlord's Initial Statement");
2.2.4.3.12 Following Landlord's Initial Statement, then either party may petition Tenant shall have up to one (1) additional hour to present additional arguments and/or to rebut the presiding judge arguments of Landlord ("Tenant's Rebuttal Statement");
2.2.4.3.13 Following Tenant's Rebuttal Statement, Landlord shall have up to one (1) additional hour to present additional arguments and/or to rebut the arguments of Tenant;
2.2.4.3.14 That, not later than ten (10) days after the date of the Superior Court of San Mateo County to appoint arbitration, the Neutral ArbitratorArbitrator shall render a decision (the "Ruling") indicating whether Landlord's or Tenant's submitted Option Rent is closer to the Option Rent;
2.2.4.3.15 That following notification of the Ruling, subject Landlord's or Tenant's submitted Option Rent determination, whichever is selected by the Neutral Arbitrator as being closer to criteria the Option Rent shall become the then applicable Option Rent; and
2.2.4.3.16 That the decision of the Neutral Arbitrator shall be binding on Landlord and Tenant. If a date by which an event described in Section 2.2.3.1 of this Lease2.2.4.3, above, is to occur falls on a weekend or if he or she refuses a holiday, the date shall be deemed to act, either party may petition any judge having jurisdiction over be the parties to appoint such arbitratornext business day.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 2.2.4.4 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the applicable Option Term, Tenant shall be required to pay the Option Rent Rent, initially provided by Landlord to TenantTenant in Landlord's Option Rent Notice, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Sublease (Okta, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s 's determination of the Option Rent within on or before the date that is thirty (30) days thereafterfollowing Landlord's receipt of the Option Exercise Notice. If Tenant, on or before the date which is ten thirty (1030) days following the date upon which Tenant receives Landlord’s 's determination of the Option Rent, in good faith objects to Landlord’s 's determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s 's objection to the Option Rent (the “"Outside Agreement Date”"), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall thereafter make a separate determination of the Option Rent, as the case may be, within ten (10) business days after of the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 6.3.1 through 2.2.3.76.3.8, below. If Tenant fails to object to Landlord’s 's determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to rejected Landlord’s 's determination of the Option Rent, and the matter shall be submitted to arbitration in accordance with the terms hereof.
2.2.3.1 6.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be be, at the option of the appointing party, a MAI appraiser, or a real estate appraiser broker, who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing or appraisal, as the case may be, of other class A life sciences buildings located science properties in the South San Francisco market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option RentFrancisco, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitratorsCalifornia. Each such arbitrator shall be appointed within fifteen thirty (1530) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators.”"
2.2.3.2 6.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“"Neutral Arbitrator”") who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ ' Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearanceappointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s 's counsel and Tenant’s counsel.
2.2.3.3 6.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Option Rent, and shall notify Landlord and Tenant thereof. The determination of the arbitrators shall be limited solely to the issue of whether Landlord's or Tenant's submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 6.2 of this First Amendment, as determined by the arbitrators.
2.2.3.4 6.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 6.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen twenty (1520) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 6.3.1 of this LeaseFirst Amendment, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 6.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator within ten (10) business days after the appointment of the last appointed Advocate Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 6.3.2 of this LeaseFirst Amendment, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 6.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 6.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay as Option Rent, an amount equal to 103% of the Option Base Rent initially provided payable by Landlord to TenantTenant as of the expiration of the initial Lease Term, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Lease (TerraVia Holdings, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option objects, in accordance with Section 21(c) above, to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of contained in the Option RentRent Notice, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent Fair Market Rent, using their best good-faith efforts. If Landlord and Tenant fail to reach agreement upon Fair Market Rent within ten fifteen (1015) business days following Tenant’s 's objection to the Option Rent (the “"Outside Agreement Date”"), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make submit to the other party a separate written determination of the Option Rent, as the case may be, Fair Market Rent within ten fifteen (1015) business days after the applicable Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 21(d)(i) through 2.2.3.7, 21(d)(vii) below. If Failure of Tenant fails or Landlord to object to Landlord’s submit a written determination of the Option Fair Market Rent within the time such fifteen (15) business day period set forth herein, then Tenant shall conclusively be deemed to have objected to Landlord’s determination be the non-determining party's approval of Option Rentthe Fair Market Rent submitted within such fifteen (15) business day period by the other party.
2.2.3.1 (i) Landlord and Tenant shall each appoint one arbitrator who shall by profession be a an independent real estate appraiser who shall be a Member of the Appraisal Institute who shall individually have no ongoing business relationship with Tenant or Landlord and who shall have been active over the five eight (5) 8) year period ending on the date of such appointment in the appraisal of other first-class A life sciences office buildings located in the South San Francisco market areaProject Area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Option Fair Market Rent is the closest to the actual Option RentFair Market Rent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators21(b). Each such arbitrator shall be appointed within fifteen thirty (1530) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 (ii) The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) business days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria as set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither (2) arbitrators.
(iii) The decision of the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with majority of the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator three (3) arbitrators shall be retained via an engagement letter jointly prepared by Landlord’s counsel binding upon Landlord and Tenant’s counsel.
2.2.3.3 (iv) The three (3) arbitrators shall, shall within thirty (30) days of after the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether Landlord's or Tenant's submitted Fair Market Rent is the parties closest to the actual Fair Market Rent, and shall use the closest of Landlord’s 's or Tenant’s 's submitted Fair Market Rent as the Fair Market Rent for purposes of calculating the Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The (v) If either Landlord or Tenant fails to appoint an arbitrator within thirty (30) days after the Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator's decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 (vi) If the two (2) arbitrators fail to agree upon and appoint a third arbitrator within the time period provided in Section 21(d)(ii) above, then the parties shall mutually select the third arbitrator, who shall be qualified under the same criteria as set forth in Section 21(d)(i) above. If Landlord and Tenant are unable to agree upon the third arbitrator within ten (10) days, then either Landlord or Tenant fails party may, upon at least five (5) days' prior written notice to the other party, request the Presiding Judge of the Alameda County Superior Court, acting in his private and not judicial capacity, to appoint an Advocate Arbitrator the third arbitrator who shall be qualified under the same criteria as set forth in Section 21(d)(i). Following the appointment of the third arbitrator, the panel of arbitrators shall within thirty (30) days thereafter reach a decision as to whether Landlord's or Tenant's submitted Fair Market Rent shall be used and shall notify Landlord and Tenant thereof.
(vii) If only one appraiser is selected, then each party shall pay one-half (1/2) of the fees and expenses of that appraiser. If three (3) appraisers are selected, each party shall bear the fees and expenses of the appraiser it selects and one-half (1/2) of the fees and expenses of the third appraiser.
(viii) Notwithstanding anything to the contrary contained in this section, if Landlord and Tenant have not agreed upon the Fair Market Rent by the Outside Agreement Date, Tenant may rescind its exercise of the Extension Option by giving Landlord written notice of such election to rescind with fifteen (15) business days after the Outside Agreement Date. If Tenant rescinds its exercise of the Extension Option, then either party may petition the presiding judge Lease shall terminate on the date the Lease would have otherwise terminated absent Tenant's exercise of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate ArbitratorExtension Option.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Lease (Socket Communications Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within on or before the date that is thirty (30) days thereafterfollowing Landlord’s receipt of the Option Exercise Notice. If Tenant, on or before the date which is ten thirty (1030) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall thereafter make a separate determination of the Option Rent, as the case may be, within ten five (105) business days after of the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.72.2.3.8, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to rejected Landlord’s determination of the Option Rent, and the matter shall be submitted to arbitration in accordance with the terms hereof.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be be, at the option of the appointing party, a MAI appraiser, a real estate appraiser broker, or real estate attorney, who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s leasing or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Leaseappraisal, as determined by the arbitratorscase may be, of life science properties in Hayward, California. Each such arbitrator shall be appointed within fifteen twenty (1520) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable favourable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearanceappointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shallshall , within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen twenty (1520) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo Alameda County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator within ten (10) business days after the appointment of the last appointed Advocate Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo Alameda County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 2.2.3.2 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay as Option Rent, an amount equal to I 03% of the Option Base Rent initially provided payable by Landlord to TenantTenant as of the expiration of the initial Lease Term, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Lease (Benitec Biopharma LTD/ADR)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty no later than five (305) days thereaftermonths prior to the Lease Expiration Date. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) days after the Outside Agreement Datedays, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, 2.2.3.7 below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to accepted Landlord’s determination of Option Rent.
2.2.3.1 If Landlord and Tenant fail to reach agreement prior to the Outside Agreement Date, then Landlord and Tenant shall each appoint one arbitrator who shall be be, at the option of the appointing party, a qualified real estate broker or appraiser who shall have been active over the five ten (510) year period ending on the date of such appointment in the appraisal leasing of other class A comparable life sciences buildings located in the South city of San Francisco market areaDiego. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators”.”
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter to, within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to Arbitrator, agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ party’s Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Lease (Aethlon Medical Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith but objects to Landlord’s determination of the Option RentRent concurrently with its exercise of the option to extend, then Landlord and Tenant shall attempt to agree in good faith upon the Option Rent using their best good-faith effortsRent. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s objection to delivery of the Option Rent Notice (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, Rent within ten five (105) business days after the Outside Agreement Date, concurrently exchange such determinations and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, 2.2.3.7 below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate broker or appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing (or appraisal, as the case may be) of other class A life sciences buildings located commercial high–rise properties in the South San Francisco market Pasadena, California area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, as determined by the arbitrators, taking into account the requirements of Section 2.2.2 2.2.1 of this LeaseLease (i.e., as determined by the arbitratorsarbitrators may only select Landlord’s or Tenant’s determination and shall not be entitled to make a compromise determination). Each such arbitrator shall be appointed within fifteen (15) business days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten five (105) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) arbitrators.
2.2.3.3 The three (3) arbitrators shall, shall within thirty five (305) days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, Rent and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) business days after the applicable Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitratora third arbitrator, or both parties fail to appoint an arbitrator, then either party may petition the presiding judge appointment of the Superior Court third arbitrator or any arbitrator shall be dismissed and the Option Rent be decided shall be forthwith submitted to arbitration under the provisions of San Mateo County to appoint the Neutral ArbitratorAmerican Arbitration Association, but subject to criteria the instruction set forth in this Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator2.2.3.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Office Lease (Accelrys, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option objects to extend the Lease TermSecond Option Term Rent, Landlord or in the event that Tenant shall notify Tenant of Landlord’s determination of exercise its right to lease the Premises during the Option Rent within thirty (30) days thereafter. If TenantTerm without having delivered an Interest Notice, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Second Option Term Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) business days following Tenant’s objection to the Second Option Term Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Second Option Term Rent, as the case may be, within ten five (105) days after the Outside Agreement Datebusiness days, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.4.1 through 2.2.3.7, 2.2.4.7 below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate appraiser broker or lawyer who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other class A life sciences buildings located commercial properties in the South San Francisco market areaLos Angeles County, California. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Second Option Rent Term Rent, is the closest to the actual Second Option RentTerm Rent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 2.2.3 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 2.2.4.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counselarbitrators.
2.2.3.3 2.2.4.3 The three arbitrators shall, shall within thirty (30) days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Second Option Term Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 2.2.4.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 2.2.4.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) days after the applicable Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 2.2.4.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitratora third arbitrator, or both parties fail to appoint an arbitrator, then either party may petition the presiding judge appointment of the Superior Court third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of San Mateo County to appoint the Neutral ArbitratorAmerican Arbitration Association, but subject to criteria the instruction set forth in this Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator2.2.4.
2.2.3.7 2.2.4.7 The cost of the arbitration shall be paid by Landlord ▇▇▇▇▇▇▇▇ and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option elects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the determine Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rentthrough arbitration, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option RentRent and, within five (5) business days after Landlord's receipt of the Option Exercise Notice (the fifth (5th) business day referred to as the case may be"Outside Submittal Date"), within ten (10) days after the Outside Agreement Date, concurrently exchange such determinations and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.4.1 through 2.2.3.7, 2.2.4.7 below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall be be, a real estate appraiser broker who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other class A life sciences buildings located commercial mixed-use office, retail properties in the South San Francisco market area. The determination Bay area of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitratorsCalifornia. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Submittal Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators.”"
2.2.3.2 2.2.4.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“"Neutral Arbitrator”") who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ ' Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s 's counsel and Tenant’s counsel.
2.2.3.3 2.2.4.3 The three arbitrators determination of the Neutral Arbitrator shall be limited solely to the issue of whether Landlord's or Tenant's submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the Neutral Arbitrator. The Neutral Arbitrator shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use select either Landlord’s 's or Tenant’s 's submitted Option RentRent for the applicable Option Term, and shall notify Landlord and Tenant thereofthereof within such timeframe.
2.2.3.4 2.2.4.4 The decision of the majority of the three arbitrators Neutral Arbitrator shall be binding upon Landlord and Tenant.
2.2.3.5 2.2.4.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) business days after the applicable Outside Agreement Submittal Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 appointed by one of this Leasethem shall reach a decision, or if he or she refuses to actnotify Landlord and Tenant thereof, either party may petition any judge having jurisdiction over the parties to appoint and such Advocate Arbitratorarbitrator's decision shall be binding upon Landlord and Tenant.
2.2.3.6 2.2.4.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the a Neutral Arbitrator, or both parties fail to appoint Advocate Arbitrators, then either party may petition the presiding judge appointment of the Superior Court Neutral Arbitrator or any Advocate Arbitrator shall be dismissed and the Option Rent to be decided shall be forthwith submitted to arbitration pursuant to the expedited arbitration provisions as set forth in Exhibit H, but subject to the instruction set forth in this Section 2.2.4.
2.2.4.7 Each party shall be responsible for the payment of San Mateo County to appoint its own Advocate Arbitrator, and the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration Arbitrator shall be paid equally by Landlord and Tenant equallythe parties.
2.2.3.8 2.2.4.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Office Lease (Skechers Usa Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within on or before the date that is thirty (30) days thereafterfollowing Landlord’s receipt of the Option Exercise Notice. If Tenant, on or before the date which is ten thirty (1030) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith fails to accept or object to Landlord’s determination of Option Rent, Tenant shall be deemed not to have exercised Tenant’s right to extend this Lease pursuant to this Section 2.2, this Section 2.2 shall be of no further force or effect, and the Lease will terminate at the end of the initial Lease Term. If Tenant, on or before the date which is thirty (30) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five give (5) business days thereafterof the Outside Agreement Date, in which event Tenant shall be deemed not to have exercised Tenant’s right to extend the this Lease pursuant to this Section 2.2, Tenant’s right to extend this Lease pursuant to this Section 2.2 shall be of no further force or effect, and the Lease will terminate at the end of the initial Lease Term. If Tenant does not so withdraw its exercise of the extension option, then the option will be deemed to have been irrevocably exercised, and each party shall thereafter make a separate determination of the Option Rent, as the case may be, within ten five (105) business days after of the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.72.2.3.8, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be a real estate an MAI appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing or appraisal, as the case may be, of other class A life sciences buildings located science properties in the South San Francisco market Francisco, California and the surrounding commercial area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen twenty (1520) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearanceappointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen twenty (1520) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator within ten (10) business days after the appointment of the last appointed Advocate Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 2.2.3.2 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay as Option Rent, an amount equal to 103% of the Option Base Rent initially provided payable by Landlord to TenantTenant as of the expiration of the initial Lease Term, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other partyparty within thirty (30) days thereafter.
Appears in 1 contract
Sources: Lease (Aligos Therapeutics, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option objects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) business days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, Rent within ten five (105) business days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 3.2.4.1 through 2.2.3.7, 3.2.4.7 below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 3.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall be a real estate appraiser broker who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other class A life sciences buildings located commercial high-rise properties in the South San Francisco market West Los Angeles, California area, exclusive of any broker from any brokerage firm currently representing (or who has previously represented within the preceding two (2) year period) either Landlord or Tenant. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option RentRent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease2.3.3 or 3.2.2, above, as determined by the arbitratorsapplicable. Each such arbitrator shall be appointed within fifteen (15) business days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 3.2.4.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove in Section 3.2.4.1 above for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) arbitrators.
2.2.3.3 3.2.4.3 The three (3) arbitrators shall, shall within thirty (30) days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, Rent and shall notify Landlord and Tenant thereof.
2.2.3.4 3.2.4.4 The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 3.2.4.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 3.2.4.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Leasea third arbitrator, or if he or she refuses to act, either party may petition any judge having jurisdiction over the both parties fail to appoint such an arbitrator.
2.2.3.7 The cost , then the appointment of the arbitration third arbitrator or any arbitrator shall be paid by Landlord dismissed and Tenant equally.
2.2.3.8 In the event that matter to be decided shall be forthwith submitted to arbitration under the Option Rent shall not have been determined pursuant provisions of the American Arbitration Association, but subject to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other partyinstruction set forth in this Section 3.2.4.
Appears in 1 contract
Determination of Option Rent. In the event If Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option RentRent in Tenant’s Acceptance, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s objection to the Option Rent Acceptance (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as Rent which shall be submitted to each other and to arbitration in accordance with the case may befollowing items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) business days after of the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a current real estate broker or appraiser of comparable commercial properties in the immediate vicinity of the Project, and who shall have has been active in such field over the last five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco market areayears. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option RentMarket Rent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 item (b), above (i.e., the arbitrators may only select Landlord’s or Tenant’s determination of this Lease, as determined by the arbitrators. Each such arbitrator Option Rent and shall not be appointed within fifteen entitled to make a compromise determination).
(15ii) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten five (105) business days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third (3rd) arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except (2) arbitrators years but who shall not have been directly employed by either party in the past three (3) years (it being agreed that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent such prohibition shall not apply to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel independent contractors and Tenant’s counselcommercial real estate brokers engaged pursuant to a commission agreement).
2.2.3.3 (iii) The three (3) arbitrators shall, shall within thirty fifteen (3015) days of the appointment of the Neutral Arbitrator, third (3rd) arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Market Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 (iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 (v) If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen ten (1510) business days after the applicable Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one (1) of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 (vi) If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitratora third (3rd) arbitrator, or both parties fail to appoint an arbitrator, then either party may petition the presiding judge appointment of the Superior Court third (3rd) arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of San Mateo County to appoint the Neutral ArbitratorAmerican Arbitration Association, but subject to criteria the instruction set forth in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitratoritem (d).
2.2.3.7 (vii) The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Lease Agreement (Oncorus, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s 's determination of the Option Rent within (the "Option Rent Notice") on or before the date that is thirty (30) days thereafterafter Tenant's delivery of the Option Exercise Notice. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination Tenant's receipt of the Option RentRent Notice, in good faith objects to Landlord’s 's determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s 's objection to the Option Rent Rent, (the “"Outside Agreement Date”"), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option RentRent (which, as in Landlord's case, need not be the case may berent originally set forth in the Option Rent Notice), within ten five (105) days after the Outside Agreement Datebusiness days, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be be, at the option of the appointing party, a real estate appraiser appraiser, broker or attorney who shall have been active over the five ten (510) year period ending on the date of such appointment in the appraisal leasing or appraisal, as the case may be, of other class A life sciences buildings located commercial mid-rise properties in the South San Francisco market areaarea containing the Comparable Buildings. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators.”"
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“"Neutral Arbitrator”") who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that (i) such Neutral Arbitrator shall not be an appraiser, and (ii) neither the Landlord or Tenant or either parties’ ' Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators parties shall, in connection with the determination of the Option Rent, within thirty ten (3010) business days following the selection of the Neutral Arbitrator, enter into an arbitration agreement (the “Arbitration Agreement”) which shall set forth the following: (i) Landlord’s binding Option Rent calculation and Tenant’s binding Option Rent calculation, (ii) an agreement to be signed by the Neutral Arbitrator,, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, (iii) instructions to be followed by the Neutral Arbitrator when conducting such arbitration, which instructions shall be mutually and reasonably prepared by Landlord and Tenant and which instructions shall be consistent with the terms and conditions of this Lease, (iv) that Landlord and Tenant shall each have the right to submit to the Advocate Arbitrator (with a copy to the other party), on or before a date agreed upon by Landlord and Tenant, an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord and Tenant, as the case may be, in support of Landlord’s or Tenant’s respective Option Rent determination (the “Briefs”), (v) that within three (3) business days following Landlord’s and Tenant’s exchange of Briefs, Landlord and Tenant shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s Brief (the “First Rebuttals”); provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party’s Brief and shall identify clearly which argument or fact of the other party’s Brief is intended to be rebutted, (vi) that within three (3) business days following Landlord’s and/or Tenant’s receipt of the other party’s First Rebuttal, Landlord and Tenant, as applicable, shall have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s First Rebuttal (the “Second Rebuttals”); provided, however, such Second Rebuttals shall be limited to the facts and arguments raised in the other party’s First Rebuttal and shall identify clearly which argument or fact of the other party’s First Rebuttal is intended to be rebutted, (vii) the date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, which date shall in any event be within fifteen (15) business days following the appointment of the Neutral Arbitrator, reach (viii) that no discovery shall take place in connection with the arbitration, (ix) that neither the Neutral Arbitrator shall be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant (except that the Neutral Arbitrator, with representatives from each of Landlord and Tenant, shall have the right to visit the Comparable Buildings), (x) the specific persons that shall be allowed to attend the arbitration, (xi) Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours (“Tenant’s Initial Statements”), (xii) following Tenant’s Initial Statement, Landlord shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three 8 TWO CIRCLE STAR WAY(Single-Tenant Lease Form)[Rovi Corporation] (3) hours (“Landlord’s Initial Statements”), (xiii) following Landlord’s Initial Statements, Tenant shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Landlord (“Tenant’s Rebuttal Statement”), (xiv) following Tenant’s Rebuttal Statement, Landlord shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Tenant (“Landlord’s Rebuttal Statement”), (xv) that the Neutral Arbitrator shall render a decision as to (“Award”) indicating whether the parties shall use Landlord’s or Tenant’s submitted Option Market Rent is closest to the Market Rent as determined by the Neutral Arbitrator within ten (10) business days following the arbitration, (xvi) that following notification of the Award, the Landlord’s or Tenant’s submitted Market Rent determination, whichever is selected by the Neutral Arbitrator as being closest to the Market Rent, shall become the then applicable Market Rent, and (xvii) that the decision of the Neutral Arbitrator shall notify be binding on Landlord and Tenant thereofTenant. Each of the parties shall bear one-half (1/2) the cost of appointing the Neutral Arbitrator and of paying the Neutral Arbitrator’s fees.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 2.2.4.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 2.2.3.5 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 2.2.3.2 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 2.2.3.6 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 2.2.3.7 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Lease Agreement (Rovi Corp)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option objects in writing pursuant to extend Section 10.2 above with respect to the Lease Fair Market Rental Rate initially determined by Landlord for the applicable Option Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent such Fair Market Rental Rate, using their best good-faith efforts. If Landlord and Tenant fail to reach agreement by the date (the "Outside Agreement Date") which is twenty (20) days following Tenant's delivery of the Exercise Notice, then each party shall submit to the other party a separate written determination of the Fair Market Rental Rate within ten (10) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten (10) business days after the such Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with the provisions of Sections 2.2.3.1 10.3(a) through 2.2.3.7, (g) below. If The failure of Tenant fails or Landlord to object to Landlord’s submit a written determination of the Option Rent Fair Market Rental Rate within the time such ten (10) business day period set forth herein, then Tenant shall conclusively be deemed to have objected to Landlord’s determination be such party's approval of Option Rentthe Fair Market Rental Rate submitted within such ten (10) business day period by the other party.
2.2.3.1 (a) Landlord and Tenant shall each appoint one (1) arbitrator who shall by profession be a real estate appraiser leasing broker who shall have (i) been active over the five ten (510) year period ending on the date of such appointment in the appraisal leasing of other class A life sciences buildings located Comparable Buildings, (ii) no financial interest in Landlord or Tenant, and (iii) not represented or employed or engaged the South San Francisco market areaappointing party during such 10-year period. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Option Rent Fair Market Rental Rate is the closest closer to the actual Option RentFair Market Rental Rate as determined by the arbitrators, taking into account the requirements of with respect thereto set forth in Section 2.2.2 of this Lease, as determined by the arbitrators10.1 above. Each such arbitrator shall be appointed within fifteen (15) days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 (b) The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter shall, within ten fifteen (1015) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator, agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) arbitrators.
2.2.3.3 (c) The three (3) arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitratorthird arbitrator, reach a decision as to whether the parties shall use which of Landlord’s 's or Tenant’s 's submitted Option Rent, Fair Market Rental Rate is closer to the actual Fair Market Rental Rate and shall select such closer determination as the Fair Market Rental Rate and notify Landlord and Tenant thereof.
2.2.3.4 (d) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 (e) If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria time period specified in Section 2.2.3.1 10.1(a) above, the arbitrator appointed by one of this Leasethem shall reach a decision, or if he or she refuses to actnotify Landlord and Tenant thereof, either party may petition any judge having jurisdiction over the parties to appoint and such Advocate Arbitratorarbitrator's decision shall be binding upon Landlord and Tenant.
2.2.3.6 (f) If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitratora third arbitrator, then either party may petition the presiding judge of a third arbitrator shall be appointed by the Superior Court in and for the county of San Mateo County to appoint the Neutral ArbitratorAlameda, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitratorCalifornia.
2.2.3.7 The cost (g) Each party shall pay the fees and expenses of the arbitration arbitrator appointed by or on behalf of it, and each shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement pay one-half of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, fees and upon the final determination expenses of the Option Rentthird arbitrator, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other partyif any.
Appears in 1 contract
Sources: Marina Village Office Tech Lease (Insite Vision Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s 's determination of the Option Rent within on or before the date that is thirty (30) days thereafterfollowing Landlord's receipt of the Option Exercise Notice. If Tenant, on or before the date which is ten thirty (1030) days following the date upon which Tenant receives Landlord’s 's determination of the Option Rent, in good faith objects to Landlord’s 's determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s 's objection to the Option Rent (the “"Outside Agreement Date”"), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall thereafter make a separate determination of the Option Rent, as the case may be, within ten five (105) business days after of the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.3.4.1 through 2.2.3.72.3.4.4, below. If Tenant fails to object to Landlord’s 's determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to rejected Landlord’s 's determination of the Option Rent, and the matter shall be submitted to arbitration in accordance with the terms hereof.
2.2.3.1 2.3.4.1 Landlord and Tenant shall each appoint one arbitrator who shall be be, at the option of the appointing party, a MAI appraiser, a real estate appraiser broker, or real estate attorney, who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s leasing or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Leaseappraisal, as determined by the arbitratorscase may be, of life science properties in San Diego, California. Each such arbitrator shall be appointed within fifteen twenty (1520) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators.”"
2.2.3.2 2.3.4.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“"Neutral Arbitrator”") who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ ' Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearanceappointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s 's counsel and Tenant’s counsel.
2.2.3.3 2.3.4.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Option Rent, and shall notify Landlord and Tenant thereof. The determination of the arbitrators shall be limited solely to the issue of whether Landlord's or Tenant's submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.3.2 of this Lease, as determined by the arbitrators.
2.2.3.4 2.3.4.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 2.3.4.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen twenty (1520) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo Diego County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 2.3.4.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 2.3.4.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator within ten (10) business days after the appointment of the last appointed Advocate Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo Diego County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 2.3.4.2 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 2.3.4.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 2.3.4.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay as Option Rent, an amount equal to 103% of the Option Base Rent initially provided payable by Landlord to TenantTenant as of the expiration of the initial Lease Term, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Lease (VistaGen Therapeutics, Inc.)
Determination of Option Rent. In If Tenant fails to timely object to Option Rent as provided herein, then the event Option Rent shall be as set forth in the Option Rent Notice. If Tenant timely and appropriately exercises an option objects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent applicable Fair Market Rental Value using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as applicable Fair Market Rental Value (the case may be“Arbitration Fair Market Rental Value(s)”), within ten five (105) business days after following the Outside Agreement Date, Date and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.3.4.1 through 2.2.3.7, 2.3.4.7 below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate Member Appraisal Institute approved appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located leases and setting of lease rates of Comparable Buildings in the ▇▇▇▇ ▇▇▇▇▇ Airport/South San Francisco market Coast Plaza area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent Arbitration Fair Market Rental Value is the closest to the actual Option RentFair Market Rental Value as determined by the arbitrators, taking into account the requirements of Section 2.2.2 2.3.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen twenty (1520) days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 2.2.4.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) business days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counselarbitrators.
2.2.3.3 2.2.4.3 The three arbitrators shall, shall within thirty (30) days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option RentFair Market Rental Value, and shall notify Landlord and Tenant thereof.
2.2.3.4 2.2.4.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 2.2.4.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) business days after the applicable Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 2.2.4.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitratora third arbitrator, or both parties fail to appoint an arbitrator, then either party may petition the presiding judge appointment of the Superior Court third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of San Mateo County to appoint the Neutral ArbitratorAmerican Arbitration Association Commercial Rules of Arbitration, but subject to criteria the instruction set forth in this Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator2.3.4.
2.2.3.7 2.2.4.7 The cost of the arbitration arbitrator appointed by Landlord shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement Landlord. The cost of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made arbitrator appointed by Tenant shall be reconciled with paid by Tenant. The cost of the actual amounts of Option Rent due, third arbitrator shall be shared equally by Landlord and the appropriate party shall make any corresponding payment to the other partyTenant.
Appears in 1 contract
Sources: Office Lease (Epicor Software Corp)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) business days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) business days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten (10) days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to accepted Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be a real estate appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Lease Agreement (Nkarta, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option objects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten twenty (1020) days following Tenant▇▇▇▇▇▇’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall may give written notice (“Appraisal Notice”) to Landlord that Tenant desires to have the right to withdraw its exercise of the option Option Rent determined by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease appraisal pursuant to this Section 2.2 shall be of no further force or effectthe procedures set forth in subsections (a) through (e) below. If Tenant does not withdraw its exercise of fails to give the extension optionAppraisal Notice to Landlord on or before the Outside Agreement Date, each party shall make a separate determination of the Option Rent, as Rent shall be the case may be, within amount set forth in the Option Rent Notice.
(a) Within ten (10) days after ▇▇▇▇▇▇▇▇’s receipt of the Outside Agreement Date, and such determinations shall be submitted to arbitration Appraisal Notice in accordance with Sections 2.2.3.1 through 2.2.3.7this Section, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be agree upon a list of three (3) independent, unaffiliated real estate appraiser who shall have been active over brokers with at least ten (10) years’ full-time experience brokering commercial properties within ten (10) miles of the Project. Within five (5) year period ending on days after agreement upon the date list of such appointment in brokers, Landlord and Tenant shall meet and each shall have the appraisal of other class A life sciences buildings located in the South San Francisco market area. The determination right to disqualify one (1) of the arbitrators shall be limited solely to the issue of whether Landlord’s brokers until only one (1) broker (“Arbitrator”) has not been disqualified by either Landlord or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within .
(b) Within fifteen (15) days after the Outside Agreement Date. Landlord appointment of the Arbitrator, the parties shall each submit their determination of the Option Rent to the Arbitrator and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positionsthe Arbitrator shall independently determine the Option Rent. The arbitrators so selected Option Rent shall equal the Option Rent submitted by Landlord and or Tenant that is closest to the Option Rent determined by the Arbitrator. The Arbitrator shall not divulge to Landlord or Tenant the Option Rent determined by the Arbitrator until both parties instruct it to do so in writing. The determination of the Arbitrator in accordance with this Section 2.2 shall be deemed “Advocate Arbitratorsfinal and binding on the parties and a judgment may be rendered thereon in a court of competent jurisdiction.”
2.2.3.2 The two (2c) Advocate Arbitrators so appointed shall be specifically required pursuant If the parties fail to an engagement letter within select the three (3) qualified brokers or the Arbitrator, either Landlord or Tenant by giving ten (10) days days’ notice to the other party, can apply to the American Arbitration Association office in the county in which the Premises is located for the selection of the date of Arbitrator who meets the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counselqualifications stated in this Section.
2.2.3.3 The three arbitrators shall, within thirty (30d) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In (e) During the event that period requiring the adjustment of Base Rent to Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option TermRent, Tenant shall be required pay, as Base Rent pending such determination, the Base Rent in effect for the Premises immediately prior to such adjustment; provided, however, that upon the determination of the applicable Option Rent, Tenant shall pay Landlord the difference between the amount of Base Rent Tenant actually paid and Option Rent initially provided by Landlord to Tenant, and immediately upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Office Lease (Doma Holdings, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith but objects to Landlord’s determination of the Option RentRent in connection with its exercise of the option to extend, then Landlord and Tenant shall attempt to agree in good faith upon the Option Rent using their best good-faith effortsRent. If Landlord and Tenant fail to reach agreement within ten twenty (1020) days following TenantLandlord’s objection to receipt of the Option Rent Notice (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) business days after the Outside Agreement Date, and concurrently exchange such determinations and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 3(i) through 2.2.3.7, 3(vii) below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 (i) Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate appraiser broker who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other class A life sciences buildings located comparable office properties in the South San Francisco market areaarea of Richardson, Texas. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rentfair market rent, as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitratorsRenewal Option. Each such arbitrator shall be appointed within fifteen (15) business days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 (ii) The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten five (105) business days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) arbitrators.
2.2.3.3 (iii) The three (3) arbitrators shall, shall within thirty five (305) business days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof. Should the three (3) arbitrators fail to reach such decision, then the decision shall be made solely by the third such appointed arbitrator.
2.2.3.4 (iv) The decision as to the amount of the majority of Option Rent, as made by the three arbitrators arbitrators, or the third arbitrator alone as aforesaid, shall be binding upon Landlord and Tenant.
2.2.3.5 (v) If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) business days after the applicable Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 (vi) If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitratora third arbitrator, or both parties fail to appoint an arbitrator, then either party may petition the presiding judge appointment of the Superior Court third arbitrator or any arbitrator shall be dismissed and the Option Rent to be decided shall be forthwith submitted to arbitration under the provisions of San Mateo County to appoint the Neutral ArbitratorAmerican Arbitration Association, but subject to criteria the instruction set forth in this Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator3.
2.2.3.7 (vii) The cost of the arbitration third arbitrator shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate cost of each of Landlord’s and Tenant’s arbitrator shall be paid by the party shall make any corresponding payment to the other partythat engages such arbitrator.
Appears in 1 contract
Sources: Lease (Intrusion Inc)
Determination of Option Rent. In the event If Tenant timely and appropriately exercises an option objects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s 's determination of the Option Rent within thirty (30) days thereafter. If in Tenant's Acceptance, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten twenty-one (1021) days following Tenant’s objection to the Option Rent 's Acceptance (the “"Outside Agreement Date”"), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as Rent which shall be submitted to each other and to arbitration in accordance with the case may befollowing items (i) through (vii):
(i) Landlord and Tenant shall each appoint, within ten (10) business days after of the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a current real estate broker or appraiser of comparable commercial properties in the immediate vicinity of the Building, and who shall have has been active in such field over the last five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco market areayears. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Option Rent is the closest to the actual Option RentMarket Rent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 2.3(b) above (i.e., the arbitrators may only select Landlord's or Tenant's determination of this Lease, as determined by the arbitrators. Each such arbitrator Option Rent and shall not be appointed within fifteen entitled to make a compromise determination).
(15ii) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten five (105) business days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third (3rd) arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) arbitrators.
2.2.3.3 (iii) The three (3) arbitrators shall, shall within thirty fifteen (3015) days of the appointment of the Neutral Arbitrator, third (3rd) arbitrator reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Option Market Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 (iv) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 (v) If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen ten (1510) days after the applicable Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one (1) of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator's decision shall be binding upon Landlord and Tenant.
2.2.3.6 (vi) If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitratora third (3rd) arbitrator, or both parties fail to appoint an arbitrator, then either party may petition the presiding judge appointment of the Superior Court third (3rd) arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of San Mateo County to appoint the Neutral ArbitratorAmerican Arbitration Association, but subject to criteria the instruction set forth in this Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator2.3(d).
2.2.3.7 The (vii) Each of Landlord and Tenant shall (1) separately pay for the cost of its respective chosen arbitrator, and (2) pay the cost of the neutral third arbitrator and all other costs of arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty no earlier than twelve (3012) days thereafterand no later than eight (8) months prior to the Lease Expiration Date. If Tenant, on or before the date which is ten thirty (1030) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) days after the Outside Agreement Datedays, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to accepted Landlord’s determination of Option Rent.
2.2.3.1 If Landlord and Tenant fail to reach agreement prior to the Outside Agreement Date, then Landlord and Tenant shall each appoint one arbitrator who shall be be, at the option of the appointing party, a qualified real estate broker or appraiser who shall have been active over the five ten (510) year period ending on the date of such appointment in the appraisal leasing of other class A comparable life sciences buildings located in the South city of San Francisco market areaDiego. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators”.”
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter letter, within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to Arbitrator, agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ party’s Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge then-President of the Superior Court of San Mateo County Diego Real Estate Board to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge then-President of the Superior Court of San Mateo County Diego Real Estate Board to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 2 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration Neutral Arbitrator shall be paid by Landlord and Tenant equallyequally and each of Landlord and Tenant shall pay the cost of its respective Advocate Arbitrator.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option most recent Base Rent initially provided by Landlord rate in effect during the initial Lease Term as adjusted to Tenantreflect a 3% increase in such rate, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall shall, within thirty (30) days thereafter, make any corresponding payment to the other party.
2.2.3.9 The terms of the Lease during any Option Term shall be the same as the terms during the initial Lease Term, other than as expressly set forth in this Section 2.2.
Appears in 1 contract
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its ---------------------------- option to extend the Lease Term, Landlord shall notify Tenant of but objects to Landlord’s 's determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination concurrently with its exercise of the Option Rentoption to extend, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree in good faith upon the Option Rent using their best good-faith effortsRent. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s objection to 's delivery of the Option Rent Notice (the “"Outside Agreement Date”"), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, Rent within ten five (105) business days after the Outside Agreement Date, concurrently exchange such determinations and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, 2.2.3.7 below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate broker or appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing (or appraisal, as the case may be) of other class A life sciences buildings located commercial high-rise properties in the South San Francisco market Diego, California area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Option Rent is the closest to the actual Option Rent, as determined by the arbitrators, taking into account the requirements of Section 2.2.2 2.2.1 of this LeaseLease (i.e., as determined by the arbitratorsarbitrators may only select Landlord's or Tenant's determination and shall not be entitled to make a compromise determination). Each such arbitrator shall be appointed within fifteen (15) business days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten five (105) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove herein above for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) arbitrators.
2.2.3.3 The three (3) arbitrators shall, shall within thirty five (305) days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Option Rent, Rent and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) business days after the applicable Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator's decision shall be binding upon Landlord and Tenant.
2.2.3.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitratora third arbitrator, or both parties fail to appoint an arbitrator, then either party may petition the presiding judge appointment of the Superior Court third arbitrator or any arbitrator shall be dismissed and the Option Rent be decided shall be forthwith submitted to arbitration under the provisions of San Mateo County to appoint the Neutral ArbitratorAmerican Arbitration Association, but subject to criteria the instruction set forth in this Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator2.2.3.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Office Lease (Venture Catalyst Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith but objects to Landlord’s determination of the Option RentRent concurrently with its exercise of the option to extend, then Landlord and Tenant shall attempt to agree in good faith upon the Option Rent using their best good-faith effortsRent. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s objection to delivery of the Option Rent Notice (the “Outside Agreement Date”), then Landlord and Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as Rent and notify the case may be, other party of this determination within ten five (105) business days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Landlord or Tenant fails to object to Landlord’s make a determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be a real estate appraiser who shall have been active over the such five (5) year day period, that failure shall be conclusively considered to be that party’s approval of the Option Rent submitted within such five (5) day period ending on by the date other party. If both the Landlord and the Tenant make a timely determination of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco market areaOption Rent, those determinations shall be submitted to arbitration. The determination of the arbitrators shall be limited solely to the sole issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account fair market value of the requirements of Section 2.2.2 of this Lease, Premises as determined by the arbitratorsarbitrator. Each such arbitrator shall be appointed within Within fifteen (15) days after the Outside Agreement Date. both Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by make a make a timely determination of the Option Rent, Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The each appoint one arbitrator and notify the other party. If each party timely appoints an arbitrator, the two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter arbitrators shall, within ten (10) business days of the date of after the appointment of the last appointed Advocate Arbitrator to second arbitrator, agree upon on and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the and provide notice to Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within . Within thirty (30) days of after the appointment of the Neutral Arbitratorthird arbitrator, reach a decision as to the three (3) arbitrators shall decide on whether the parties shall will use Landlord’s Landlord or Tenant’s submitted Option Rent, Rent and shall notify Landlord and Tenant thereof.
2.2.3.4 of their decision. The decision of the majority of the three (3) arbitrators shall be binding upon on Landlord and Tenant.
2.2.3.5 . If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by both Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final make a timely determination of the Option Rent, the payments made arbitrator timely appointed by one of them shall reach a decision and notify Landlord and Tenant of that decision within thirty (30) days after such arbitrator’s appointment. Such arbitrator’s decision shall be reconciled binding on Landlord and Tenant. Each arbitrator must be a licensed commercial real estate broker who has been active in the leasing appraisal of commercial office buildings in the San Diego area over the five (5) year period prior to the date set forth in Section 1 of the Summary. To the extent not inconsistent with the actual amounts foregoing, the arbitration shall be conducted in accordance with the real estate industry arbitration rules of Option Rent due, and the appropriate party shall make any corresponding payment to the other partyAmerican Arbitration Association.
Appears in 1 contract
Sources: Office Lease (Active Network Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s 's determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) business days following the date upon which Tenant receives Landlord’s 's determination of the Option Rent, in good faith objects to Landlord’s 's determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) business days following Tenant’s 's objection to the Option Rent (the “"Outside Agreement Date”"), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s 's right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten (10) days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.72.2.3.8, below. If Tenant fails to object to Landlord’s 's determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to accepted Landlord’s 's determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be a real estate appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators.”"
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“"Neutral Arbitrator”") who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ ' Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s 's counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Lease (Nkarta, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option objects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) business days following the date of Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall may give written notice (“Appraisal Notice”) to Landlord on or before the Outside Agreement Date that Tenant desires to have the right to withdraw its exercise of the option Option Rent determined by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease appraisal pursuant to this Section 2.2 shall be of no further force or effectthe procedures set forth in subsections (i) through (iv) below. If Tenant does not withdraw its exercise of deliver an Appraisal Notice to Landlord on or before the extension optionOutside Agreement Date, each party shall make a separate determination of the Option Rent, as Rent applicable during the case may be, within Option Term shall be the amount set forth in the Option Rent Notice.
(i) Within ten (10) days after Landlord’s receipt of the Outside Agreement Date, and such determinations shall be submitted to arbitration Appraisal Notice in accordance with Sections 2.2.3.1 through 2.2.3.7this Section, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be agree upon a list of three (3) independent, unaffiliated real estate appraiser who shall have been active over the appraisers with at least five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco market area. The determination years’ full-time experience appraising commercial properties within ten (10) miles of the arbitrators Expanded Premises. Within five (5) days after agreement upon the list of appraisers, Landlord and Tenant shall be limited solely meet and each shall have the right to disqualify one (1) of the issue of whether Landlord’s appraisers until only one (1) appraiser (the “Appraiser”) has not been disqualified by either Landlord or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within .
(ii) Within fifteen (15) days after the Outside Agreement Date. Landlord appointment of the Appraiser, the parties shall each submit their determination of the Option Rent to the Appraiser and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positionsthe Appraiser shall independently determine the Option Rent. The arbitrators so selected Option Rent shall equal the Option Rent submitted by Landlord and or Tenant that is closest to the Option Rent determined by the Appraiser. The Appraiser shall not divulge to Landlord or Tenant the Option Rent determined by the Appraiser until both parties instruct it to do so in writing. The determination of the Appraiser in accordance with this Section shall be deemed “Advocate Arbitratorsfinal and binding on the parties and a judgment may be rendered thereon in a court of competent jurisdiction.”
2.2.3.2 The two (2iii) Advocate Arbitrators so appointed shall be specifically required pursuant If the parties fail to an engagement letter within select the three (3) qualified appraisers or the Appraiser, either Landlord or Tenant by giving ten (10) days days’ notice to the other party, can apply to the American Arbitration Association office in the county in which the Premises is located for the selection of the date of Appraiser who meets the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counselqualifications stated in this Section.
2.2.3.3 The three arbitrators shall, within thirty (30iv) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In . During the event that period requiring the adjustment of monthly Base Rent to Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option TermRent, Tenant shall be required continue to pay pay, as monthly Base Rent pending such determination, the Option monthly Base Rent initially provided by Landlord in effect for the Expanded Premises immediately prior to Tenantsuch adjustment; provided, and upon however, that within thirty (30) days after the final PTFDOCS #77647 v5 Proofpoint Second Amendment 8 determination of the Option Rent, the payments made by Tenant shall be reconciled with pay Landlord the actual amounts difference between the amount of monthly Base Rent Tenant actually paid and Option Rent due, and the appropriate party shall make any corresponding payment to the other partyRent.
Appears in 1 contract
Sources: Lease Agreement (Proofpoint Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten (10) days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to accepted Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be a real estate appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco Redwood City market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Lease (Bolt Biotherapeutics, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option objects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of set forth in the Option RentRent Notice, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, Rent within ten five (105) business days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.4.1 through 2.2.3.7, 2.2.4.6 below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall be a real estate appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other class A life sciences buildings located industrial properties in the South Sorrento Mesa area of San Francisco market areaDiego, California. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option RentRent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease, provided however, that if the Option Rent as determined by the arbitrators is equal to the average of Landlord’s and Tenant’s submitted Option Rent, the Option Rent shall be such average as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 2.2.4.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) arbitrators.
2.2.3.3 2.2.4.3 The three (3) arbitrators shall, shall within thirty (30) days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, Rent and shall notify Landlord and Tenant thereof.
2.2.3.4 2.2.4.4 The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 2.2.4.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 2.2.4.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Leasea third arbitrator, or if he or she refuses to act, either party may petition any judge having jurisdiction over the both parties fail to appoint such an arbitrator.
2.2.3.7 The cost , then the appointment of the arbitration third arbitrator or any arbitrator shall be paid by Landlord dismissed and Tenant equally.
2.2.3.8 In the event that matter to be decided shall be forthwith submitted to arbitration under the Option Rent shall not have been determined pursuant provisions of the American Arbitration Association, but subject to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other partyinstruction set forth in this Section 2.2.4.
Appears in 1 contract
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease TermLease, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement upon the Option Rent applicable to the Option Term on or before the date that is ninety (90) days prior to the expiration of the initial Lease Term (the "Outside Agreement Date"), then, within ten (10) days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) business days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten (10) days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.72.2.3.4, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be be, at the option of the appointing party a licensed MAI appraiser or a real estate appraiser broker, who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing or appraisal, as the case may be, of other class A life sciences buildings located science properties in the South San Francisco market areaFrancisco. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord ▇▇▇▇▇▇▇▇ and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators.”"
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“"Neutral Arbitrator”") who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ ' Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearanceappointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s ▇▇▇▇▇▇▇▇'s counsel and Tenant▇▇▇▇▇▇’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 2.2.3.2 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall has not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required pay Base Rent at a rate equal to pay 103% of the Option Base Rent initially provided by Landlord to Tenantin effect at the end of the initial Lease Term, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party. 4864-7268-1728.5183307.00004/2-27-24/ejs/ejs -7- [Nexus on Grand][Myriad Genetics, Inc.] 3. BASE RENT; RENT ABATEMENT.
Appears in 1 contract
Sources: Lease (Myriad Genetics Inc)
Determination of Option Rent. In the event Tenant Lessee timely and appropriately exercises an option to extend the term of the Lease Termfor the entire Premises, Landlord Lessor shall notify Tenant Lessee of LandlordLessor’s determination of the Option Rent within thirty at least one hundred eighty (30180) days thereafterprior to the New Lease Expiration Date. If TenantLessee, on or before the date which is ten thirty (1030) days following the date upon which Tenant Lessee receives LandlordLessor’s determination of the Option Rent, in good faith objects to LandlordLessor’s determination of the Option Rent, or with respect to First Offer Rent, if Lessee exercises its right of first offer with respect to the space described in a First Offer Notice but objects to the First Offer Rent set forth in the First Offer Notice, then Landlord Lessor and Tenant Lessee shall attempt to agree upon the Option Rent (or First Offer Rent, as applicable) using their best good-faith efforts. If Landlord Lessor and Tenant Lessee fail to reach agreement within ten (10) days following Tenant’s objection to on or before the commencement of the Option Rent Term (of the First Offer Commencement Date, as applicable) (each, the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent (or First Offer Rent, as the case may beapplicable), within ten five (105) business days after of the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 11.3.1 through 2.2.3.711.3.7, below. If Tenant Lessee fails to object to LandlordLessor’s determination of the Option Rent within the time period set forth herein, then Tenant Lessee shall be deemed to have objected to Landlordaccepted Lessor’s determination of Option Rent.
2.2.3.1 Landlord 11.3.1 Lessor and Tenant Lessee shall each appoint one arbitrator who shall be be, at the option of the appointing party, a real estate broker or appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing or appraisal, as the case may be, of other first-class A life sciences life-science buildings located in the South ▇▇▇▇▇▇ ▇▇▇▇▇ market area of San Francisco market areaDiego, California. The determination of the arbitrators shall be limited solely to the issue of whether LandlordLessor’s or TenantLessee’s submitted Option Rent (or First Offer Rent, as applicable) is the closest to the actual Option Rent (or First Offer Rent, as applicable), taking into account the requirements of Section 2.2.2 11.2 (and Section 10.3 with respect to the First Offer Rent) of this LeaseFifth Amendment, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord Lessor and Tenant Lessee may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord Lessor and Tenant Lessee shall be deemed “Advocate Arbitrators.”
2.2.3.2 11.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord Lessor or Tenant Lessee or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by LandlordLessor’s counsel and TenantLessee’s counsel.
2.2.3.3 11.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use LandlordLessor’s or TenantLessee’s submitted Option Rent (or First Offer Rent, as applicable), and shall notify Landlord Lessor and Tenant Lessee thereof.
2.2.3.4 11.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord Lessor and TenantLessee.
2.2.3.5 11.3.5 If either Landlord Lessor or Tenant Lessee fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo Diego County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 11.3.1 of this LeaseFifth Amendment, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 11.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator within ten (10) business days following the date of the appointment of the last appointed Advocate Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo Diego County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 11.3.2 of this LeaseFifth Amendment, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 11.3.7 The cost of the arbitration shall be paid by Landlord Lessor and Tenant Lessee equally.
2.2.3.8 11.3.8 In the event that the Option Rent (or First Offer Rent, as applicable) shall not have been determined pursuant to the terms hereof prior to the commencement of the Option TermTerm (or First Offer Commencement Date, Tenant as applicable), Lessee shall be required to pay the Option Rent (or First Offer Rent, as applicable) initially provided by Landlord Lessor to TenantLessee, and upon the final determination of the Option Rent (or First Offer Rent, as applicable), the payments made by Tenant Lessee shall be reconciled with the actual amounts of Option Rent (or First Offer Rent, as applicable) due, and the appropriate party shall make any corresponding payment to the other partyparty within thirty (30) days of such reconciliation.
Appears in 1 contract
Sources: Lease Agreement (DermTech, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s 's determination of the Option Rent within thirty (30) days thereafteron or before the Lease Expiration Date. If Tenant, on or before the date which is ten thirty (1030) days following the date upon which Tenant receives Landlord’s 's determination of the Option Rent, in good faith objects to Landlord’s 's determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection to on or before the commencement of the Option Rent Term (the “"Outside Agreement Date”"), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) days after the Outside Agreement Datedays, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s 's determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to accepted Landlord’s 's determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be be, at the option of the appointing party, a real estate broker, appraiser or attorney who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing or appraisal, as the case may be, of other class A comparable commercial life sciences science buildings located in the South La Jolla area of San Francisco market areaDiego, California. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators.”"
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“"Neutral Arbitrator”") who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ ' Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s 's counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo Diego County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
. --6-- HEALTHPEAK INC. ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇ IMMUNOTHERAPEUTICS 2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator within ten (10) business days following the date of the appointment of the last appointed Advocate Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo Diego County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 2.2.3.2 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of but rejects the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of set forth in the Option RentRent Notice pursuant to Section 2.2.3, in good faith objects to Landlord’s determination of the Option Rentabove, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection upon the Option Rent applicable to the Option Rent Term on or before the date that is ninety (90) days prior to the expiration of the initial Lease Term (the “Outside Agreement Date”), then Tenant the Option Rent shall have the right to withdraw its exercise of the option be determined by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease arbitration pursuant to the terms of this Section 2.2 shall be of no further force or effect2.2.4. If Tenant does not withdraw its exercise of the extension option, each Each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) business days after following the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.4.1 through 2.2.3.72.2.4.4, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a MAI appraiser, real estate appraiser broker or real estate lawyer who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal appraising and/or leasing of other first class A life sciences buildings located office and laboratory properties in the South San Francisco market areavicinity of the Building. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option RentRent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positionspositions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable). The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 2.2.4.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, Arbitrators except that (i) neither the Landlord or Tenant or either parties’ ' Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant during the five (5) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty 2.2.4.3 Within ten (3010) days following the appointment of the Arbitrator, Landlord and Tenant shall enter into an arbitration agreement (the “Arbitration Agreement”) which shall set forth the following:
2.2.4.3.1 Each of Landlord's and Tenant's best and final and binding determination of the Option Rent exchanged by the parties pursuant to Section 2.2.4, above;
2.2.4.3.2 An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, and shall require the Neutral Arbitrator to demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant;
2.2.4.3.3 Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
2.2.4.3.4 That Landlord and Tenant shall each have the right to submit to the Neutral Arbitrator (with a copy to the other party), on or before the date that occurs fifteen (15) days following the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord or Tenant’s submitted , as the case may be, in support of Landlord's or Tenant's respective determination of Option RentRent (the “Briefs”);
2.2.4.3.5 That within five (5) business days following the exchange of Briefs, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party's Brief (the “First Rebuttals”); provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party's Brief and shall identify clearly which argument or fact of the majority other party's Brief is intended to be rebutted;
2.2.4.3.6 That within five (5) business days following the parties' receipt of the three arbitrators shall be binding upon each other's First Rebuttal, Landlord and Tenant., as applicable, shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party's First Rebuttal (the “Second Rebuttals”); provided, however, such Second Rebuttals shall be limited to the facts and arguments raised in the other party's First Rebuttal and shall identify clearly which argument or fact of the other party's First Rebuttal is intended to be rebutted;
2.2.3.5 If either 2.2.4.3.7 The date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Advocate Arbitrators, Landlord and Tenant, and each party's applicable consultants, which date shall in any event be within forty-five (45) days following the appointment of the Neutral Arbitrator;
2.2.4.3.8 That no discovery shall take place in connection with the arbitration, other than to verify the factual information that is presented by Landlord or Tenant;
2.2.4.3.9 That the Neutral Arbitrator shall not be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant, except that the Neutral Arbitrator shall be permitted to visit the Project and the buildings containing the Comparable Transactions;
2.2.4.3.10 The specific persons that shall be allowed to attend the arbitration;
2.2.4.3.11 Tenant fails shall have the right to appoint an Advocate present oral arguments to the Neutral Arbitrator within fifteen at the arbitration for a period of time not to exceed three (153) hours (“Tenant's Initial Statement”);
2.2.4.3.12 Following Tenant's Initial Statement, Landlord shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours (“Landlord's Initial Statement”);
2.2.4.3.13 Following Landlord's Initial Statement, Tenant shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Landlord (“Tenant's Rebuttal Statement”);
2.2.4.3.14 Following Tenant's Rebuttal Statement, Landlord shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Tenant (“Landlord's Rebuttal Statement”);
2.2.4.3.15 That, not later than ten (10) days after the Outside Agreement Date, then either party may petition the presiding judge date of the Superior Court of San Mateo County to appoint such Advocate arbitration, the Neutral Arbitrator subject shall render a decision (the “Ruling”) indicating whether Landlord's or Tenant's submitted Option Rent is closer to the criteria Option Rent;
2.2.4.3.16 That following notification of the Ruling, Landlord's or Tenant's submitted Option Rent determination, whichever is selected by the Neutral Arbitrator as being closer to the Option Rent shall become the Option Rent; and
2.2.4.3.17 That the decision of the Neutral Arbitrator shall be binding on Landlord and Tenant. If a date by which an event described in Section 2.2.3.1 of this Lease2.2.4.3, above, is to occur falls on a weekend or if he or she refuses a holiday, the date shall be deemed to act, either party may petition any judge having jurisdiction over be the parties to appoint such Advocate Arbitratornext business day.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 2.2.4.4 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent Rent, initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Lease Agreement (Arcturus Therapeutics Holdings Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s 's determination of the Option Rent within thirty (30) days thereafterfollowing Landlord’s receipt of Tenant’s exercise notice. If Tenant, on or before the date which is ten (10) business days following Landlord’s receipt of Tenant’s exercise notice, fails to accept or object to ./ -/// -▇▇- [▇▇▇ ▇▇▇▇ at Oyster Point] [Five Prime Therapeutics, Inc.] Landlord’s determination of the Option Rent, Tenant’s right to extend this Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant, on or before the date that is ten (10) business days following the date upon which Tenant receives Landlord’s 's determination of the Option Rent, in good faith objects to Landlord’s 's determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) business days following Tenant’s 's objection to the Option Rent (the “"Outside Agreement Date”"), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) business days thereafter, in which event Tenant’s 's right to extend the this Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party Party shall make a separate determination of the Option Rent, as the case may be, within ten (10) business days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be a real estate appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease2.2.2, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators.”"
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“"Neutral Arbitrator”") who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either partiesParties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s 's counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties Parties shall use Landlord’s 's or Tenant’s 's submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party Party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease2.2.3.1, or if he or she refuses to act, either party Party may petition any judge having jurisdiction over the parties Parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party Party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease2.2.3.1, or if he or she refuses to act, either party Party may petition any judge having jurisdiction over the parties Parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party Party shall make any corresponding payment to the other party.Party within thirty (30) days thereafter. ./ -/// -▇▇- [▇▇▇ ▇▇▇▇ at Oyster Point] [Five Prime Therapeutics, Inc.]
Appears in 1 contract
Sources: Sublease (Sutro Biopharma, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option objects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) business days following Tenant’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, Rent within ten (10) days after the Outside Agreement Datebusiness days, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.4.1 through 2.2.3.7, 2.2.4.7 below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate broker or appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing (or appraisal, as the case may be) of other class A life sciences buildings located commercial office properties in the South San Francisco Southern California market (including, without limitation, the Long Beach, California area). The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Option Rent is the closest to the actual Option RentRent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 2.2.4.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) business days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counselarbitrators.
2.2.3.3 2.2.4.3 The three arbitrators shall, shall within thirty (30) days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, Rent and shall notify Landlord and Tenant thereof.
2.2.3.4 2.2.4.4 The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 2.2.4.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) days after the applicable Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator’s decision shall be binding upon Landlord and Tenant.
2.2.3.6 2.2.4.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitratora third arbitrator, or both parties fail to appoint an arbitrator, then either party may petition the presiding judge appointment of the Superior Court third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of San Mateo County to appoint the Neutral ArbitratorAmerican Arbitration Association, but subject to criteria the instruction set forth in this Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator2.2.4.
2.2.3.7 2.2.4.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease Term, Landlord shall notify Tenant of but objects to Landlord’s 's determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination concurrently with its exercise of the Option Rentoption to extend, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree in good faith upon the Option Rent using their best good-faith effortsRent. If Landlord and Tenant fail to reach agreement within ten twenty (1020) days following Tenant’s objection to 's delivery of the Option Rent Notice (the “"Outside Agreement Date”), ") then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) business days after the Outside Agreement Date, concurrently exchange such determinations and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, 2.2.3.7 below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a real estate broker or appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing (or appraisal, as the case may be) of other class A life sciences buildings located commercial high-rise properties in the South San Francisco market areacentral corridor area of Phoenix. The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s 's or Tenant’s 's submitted Option Rent is the closest to the actual Option Rent, as determined by the arbitrators, taking into account the requirements of Section 2.2.2 2.2.1 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) business days after the applicable Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten five (105) days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (302) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, and shall notify Landlord and Tenant thereofarbitrators.
2.2.3.4 The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen (15) business days after the applicable Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator's decision shall be binding upon Landlord and Tenant.
2.2.3.6 If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitratora third arbitrator, or both parties fail to appoint an arbitrator, then either party may petition the presiding judge appointment of the Superior Court third arbitrator or any arbitrator shall be dismissed and the Option Rent to be decided shall be forthwith submitted to arbitration under the provisions of San Mateo County to appoint the Neutral ArbitratorAmerican Arbitration Association, but subject to criteria the instruction set forth in this Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator2.2.3.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Office Lease (Microage Inc /De/)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s 's determination of the Option Rent within thirty (30) days thereafteron or before the Lease Expiration Date. If Tenant, on or before the date which is ten thirty (1030) days following the date upon which Tenant receives Landlord’s 's determination of the Option Rent, in good faith objects to Landlord’s 's determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith 6 HCP, INC.[4939 Director's Place][Sorrento Therapeutics, Inc.] efforts. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s 's objection to the Option Rent (the “"Outside Agreement Date”"), then or if Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof timely delivers an Irrevocable Exercise Notice to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this the terms of Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option1.3.2, above, then each party shall make a separate determination of the Option Rent (or First Offer Rent, as the case may be), within ten five (105) days after the Outside Agreement Datedays, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s 's determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to accepted Landlord’s 's determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be be, at the option of the appointing party, a real estate broker, appraiser or attorney who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing or appraisal, as the case may be, of other class A life sciences buildings located commercial office properties in the South North San Francisco market areaDiego, California. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Option Rent (or First Offer Rent, as the case may be) is the closest to the actual Option Rent (or First Offer Rent, as the case may be), taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators.”"
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“"Neutral Arbitrator”") who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ ' Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s 's counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Option Rent (or First Offer Rent, as the case may be), and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo Diego County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo Diego County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 2.2.3.2 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent (or First Offer Rent, as the case may be) shall not have been determined pursuant to the terms hereof prior to the commencement of the Option TermTerm (or the First Offer Commencement Date, as the case may be), Tenant shall be required to pay the Option Rent (or First Offer Rent, as the case may be) initially provided by Landlord to Tenant, and upon the final determination of the Option Rent (or First Offer Rent, as the case may be), the payments made by Tenant shall be reconciled with the actual amounts of Option Rent (or First Offer Rent, as the case may be) due, and the appropriate party shall make any corresponding payment to the other party.. 7 HCP, INC.[4939 Director's Place][Sorrento Therapeutics, Inc.]
Appears in 1 contract
Sources: Lease (Sorrento Therapeutics, Inc.)
Determination of Option Rent. In the event Tenant Lessee timely and appropriately exercises an option objects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord Lessor and Tenant Lessee shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord Lessor and Tenant Lessee fail to reach agreement within ten (10) days following TenantLessee’s objection to the Option Rent (the “Outside Agreement Date”), then Tenant shall Lessee may give written notice (“Appraisal Notice”) to Lessor that Lessee desires to have the right to withdraw its exercise of the option Option Rent determined by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease appraisal pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within procedures set forth in subparagraphs (i) through (iv) below.
(i) Within ten (10) days after Lessor’s receipt of the Outside Agreement Date, and such determinations shall be submitted to arbitration Appraisal Notice in accordance with Sections 2.2.3.1 through 2.2.3.7this Paragraph, below. If Tenant fails to object to Landlord’s determination Lessor and Lessee shall agree upon a list of the Option Rent within the time period set forth hereinthree (3) independent, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be a unaffiliated real estate appraiser who shall have been active over the brokers with at least five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco market area. The determination years’ full-time experience brokering commercial properties within ten (10) miles of the arbitrators Premises. Within five (5) days after agreement upon the list of brokers, Lessor and Lessee shall be limited solely meet and each shall have the right to disqualify one (1) of the issue of whether Landlord’s brokers until only one (1) broker (“Broker”) has not been disqualified by either Lessor or Tenant’s submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within Lessee.
(ii) Within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate ArbitratorsBroker, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted each submit their determination of the Option Rent to the Broker and the Broker shall independently determine the Option Rent, . The Option Rent shall equal the Option Rent submitted by Lessor or Lessee that is closest to the Option Rent determined by the Broker. The Broker shall not divulge to Lessor or Lessee the Option Rent determined by the Broker until both parties instruct it to do so in writing. The determination of the Broker in accordance with this subsection (c) shall be final and shall notify Landlord binding on the parties and Tenant thereofa judgment may be rendered thereon in a court of competent jurisdiction.
2.2.3.4 The decision of (iii) If the majority of parties fail to select the three arbitrators (3) qualified brokers or the Broker, a Broker shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after selected by the Outside Agreement Date, then either party may petition the presiding judge then-Presiding Judge of the Superior Court of San Mateo the State of Texas of the County to appoint such Advocate Arbitrator subject to in which the criteria Premises are located, acting in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorhis individual judicial capacity.
2.2.3.6 If the two (2iv) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration appraisal shall be paid by Landlord Lessor and Tenant Lessee equally.
2.2.3.8 In . During the event period requiring the adjustment of monthly Base Rent to Option Rent, Lessee shall pay, as monthly Base Rent pending such determination, one hundred five percent (105%) of the monthly Base Rent in effect for the Premises immediately prior to such adjustment; provided, however, that upon the determination of the applicable Option Rent, Lessee shall pay Lessor the difference between the amount of monthly Base Rent Lessee actually paid and Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and immediately upon the final determination of the Option Rent, . Any amount of Base Rent Lessee has actually paid to Lessor which exceeds the payments made by Tenant Option Rent determined in accordance herewith shall be reconciled with the actual amounts of credited against Lessee’s future Option Rent due, and the appropriate party shall make any corresponding payment to the other partyobligations.
Appears in 1 contract
Sources: Purchase, Sale and Leaseback Agreement (Dividend Capital Total Realty Trust Inc.)
Determination of Option Rent. In the event If Tenant timely and appropriately exercises an option objects in its Exercise Notice to extend Landlord to the Lease Term, Landlord shall notify Tenant of Fair Market Rental Rate for the Option Term initially described in Landlord’s determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option RentNotice, then Landlord and Tenant shall attempt in good faith to agree upon the Option Rent using their best good-faith effortsFair Market Rental Rate. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s objection to the Option Rent delivery of such Exercise Notice (the “Outside Agreement Date”), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make submit to the other party a separate written determination of the Option Rent, as the case may be, Fair Market Rental Rate within ten fifteen (1015) business days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with the provisions of Sections 2.2.3.1 4.1 through 2.2.3.7, 4.7 below. If The failure of Tenant fails or Landlord to object to Landlord’s submit a written determination of the Option Rent Fair Market Rental Rate within the time such fifteen (15) business day period set forth herein, then Tenant shall conclusively be deemed to have objected to Landlordbe such party’s determination approval of Option Rentthe Fair Market Rental Rate submitted within such fifteen (15) business day period by the other party.
2.2.3.1 4.1 Landlord and Tenant shall each appoint one (1) arbitrator who shall by profession be a an independent real estate appraiser broker who shall have no ongoing relationship with Tenant or Landlord and who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal leasing of other first class A life sciences office buildings located in the South San Francisco market areaMarket Area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s or Tenant’s submitted Option Rent Fair Market Rental Rate is the closest closer to the actual Option RentFair Market Rental Rate as determined by the arbitrators, taking into account the requirements of with respect thereto set forth in Section 2.2.2 of this Lease, as determined by the arbitrators2 above. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 4.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter shall, within ten thirty (1030) days of the date of the appointment of the last appointed Advocate Arbitrator arbitrator, attempt to reach a decision as to which of Landlord’s or Tenant’s submitted Fair Market Rental Rate is closer to the actual Fair Market Rent Rate. If they are unable to agree within such time, then within the following fifteen (15) days they shall agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) arbitrators.
2.2.3.3 The three arbitrators shall, within 4.3 Within thirty (30) days of the appointment of the Neutral Arbitratorthird arbitrator, shall reach a decision as to which of Landlord’s or Tenant’s submitted Fair Market Rental Rate is closer to the actual Fair Market Rental Rate and shall select such closer determination as the Fair Market Rental Rate and notify Landlord and Tenant thereof.
4.4 If the two initial arbitrators agree as to which of Landlord’s or Tenant’s submitted Fair Market Rental Rate is closer to the actual Fair Market Rental Rate, the joint decision of the two initial arbitrators shall be binding upon Landlord and Tenant, and if they are not able to agree then the decision of the third arbitrator shall be binding upon Landlord and Tenant.
4.5 If either Landlord or Tenant fails to appoint an arbitrator within the time period specified in Section 4.1 hereinabove, the arbitrator appointed by one of them shall reach a decision, notify Landlord and Tenant thereof, and such arbitrator’s decision shall be binding upon Landlord and Tenant.
4.6 If the two (2) arbitrators fail to agree upon and appoint a third arbitrator, within the time period provided in Section 4.2 above, then the parties shall mutually select the third arbitrator. If Landlord and Tenant are unable to agree upon the third arbitrator within the period described in Section 4.2 above, then either party may, upon at least five (5) days’ prior written notice to the other party, request the Presiding Judge of the San Mateo County Superior Court, acting in his private and nonjudicial capacity, to appoint the third arbitrator. Following the appointment of the third arbitrator, the panel of arbitrators shall within thirty (30) days thereafter reach a decision as to whether the parties shall use Landlord’s or Tenant’s submitted Option Rent, Fair Market Rental Rate shall be used and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 4.7 In the event that the Option new monthly Base Rent shall is not have been determined pursuant to the terms hereof established prior to end of the then current Term of this Lease, the monthly Base Rent immediately payable at the commencement of the applicable Option Term, Tenant Term shall be required to pay the Option monthly Base Rent initially provided by Landlord to Tenantpayable in the immediately preceding month. Notwithstanding the above, and upon once the final determination of fair market rental is determined in accordance with the Option Rentitems hereto, the payments made by Tenant parties shall be reconciled with settle any underpayment or overpayment on the actual amounts of Option next monthly Base Rent due, and the appropriate party shall make any corresponding payment to the other partydate falling not less than thirty (30) days after such determination.
Appears in 1 contract
Sources: Lease (Kezar Life Sciences, Inc.)
Determination of Option Rent. In the event If Tenant timely and appropriately exercises an option objects to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of the Option Rent within thirty (30) days thereafter. If in Tenant's acceptance, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of the Option Rent, in good faith objects to Landlord’s determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten thirty (1030) days following Tenant’s objection to the Option Rent 's acceptance (the “"Outside Agreement Date”"), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option RentRent which shall be submitted to each other and to arbitration in accordance with the following Sections 2.M.iii(A) through 2.M.iii(G); provided, as however, if the case may belower determination is within five percent (5%) of the higher determination, the Option Rent shall be the average of the two (2) determinations, without any further proceedings or determination:
(A) Landlord and Tenant shall each appoint, within ten (10) days after of the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a current real estate broker or appraiser of comparable commercial properties in the vicinity of the Building, and who shall have has been active in such field over the last five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco market areayears. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Option Rent is the closest to the actual Option RentRent as determined by the arbitrators, taking into account the requirements of Section 2.2.2 2.M.i, above (i.e., the arbitrators may only select Landlord's or Tenant's determination of this Lease, as determined by the arbitrators. Each such arbitrator Option Rent and shall not be appointed within fifteen entitled to make a compromise determination).
(15B) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 The two (2) Advocate Arbitrators arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten five (105) business days of the date of the appointment of the last appointed Advocate Arbitrator to arbitrator agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel(2) arbitrators.
2.2.3.3 (C) The three (3) arbitrators shall, shall within thirty fifteen (3015) days of the appointment of the Neutral Arbitrator, third arbitrator reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 (D) The decision of the majority of the three (3) arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 (E) If either Landlord or Tenant fails to appoint an Advocate Arbitrator arbitrator within fifteen ten (1510) days after the applicable Outside Agreement Date, then either party may petition the presiding judge arbitrator appointed by one of the Superior Court of San Mateo County to appoint them shall reach a decision, notify Landlord and Tenant thereof, and such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitratorarbitrator's decision shall be binding upon Landlord and Tenant.
2.2.3.6 (F) If the two (2) Advocate Arbitrators arbitrators fail to agree upon and appoint the Neutral Arbitratora third arbitrator, or both parties fail to appoint an arbitrator, then either party may petition the presiding judge appointment of the Superior Court third arbitrator or any arbitrator shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of San Mateo County to appoint the Neutral ArbitratorAmerican Arbitration Association, but subject to criteria the instructions set forth in this Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator2.M.iii.
2.2.3.7 (G) The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final party whose determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and is not selected by the appropriate party shall make any corresponding payment to the other partyarbitrators.
Appears in 1 contract
Sources: Lease (Maxlinear Inc)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s 's determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s 's determination of the Option Rent, in good faith objects to Landlord’s 's determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s 's objection to the Option Rent (the “"Outside Agreement Date”"), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s 's right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten (10) days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s 's determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s 's determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be a real estate appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators.”"
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“"Neutral Arbitrator”") who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ ' Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s 's counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Option Rent, and shall notify Landlord and Tenant thereof. Landlord and Tenant.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.upon
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Lease (Graphite Bio, Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an its option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s determination of but rejects (or is deemed to have rejected) the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s determination of set forth in the Option RentRent Notice pursuant to Section 2.2.3, in good faith objects to Landlord’s determination of the Option Rentabove, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s objection upon the Option Rent applicable to the Option Rent Term on or before the date that is ninety (90) days prior to the expiration of the initial Lease Term (the “Option Outside Agreement Date”), then Tenant the Option Rent shall have the right to withdraw its exercise of the option be determined by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease arbitration pursuant to the terms of this Section 2.2 shall be of no further force or effect2.2.4. If Tenant does not withdraw its exercise of the extension option, each Each party shall make a separate determination of the Option Rent, as the case may be, within ten five (105) business days after following the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 2.2.4.1 through 2.2.3.72.2.4.4, below. If Tenant fails to object to Landlord’s determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s determination of Option Rent.
2.2.3.1 2.2.4.1 Landlord and Tenant shall each appoint one arbitrator who shall by profession be a MAI appraiser or real estate appraiser broker who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal appraising and/or leasing of other first class A life sciences buildings located office properties in the South San Francisco market areaComparable Area (as that term is defined in Exhibit F). The determination of the arbitrators shall be limited solely to the issue area of whether Landlord’s or Tenant’s submitted Option Rent (or First Offer Rent, as applicable) is the closest to the actual Option Rent (or First Offer Rent, as applicable) as determined by the arbitrators, taking into account the requirements of Section 2.2.2 Exhibit F of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) business days after the Option Outside Agreement Date (or First Offer Outside Agreement Date, as applicable). Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positionspositions (including an arbitrator who has previously represented Landlord and/or Tenant, as applicable). The arbitrators so selected by Landlord and Tenant shall be deemed “Advocate Arbitrators.”
2.2.3.2 2.2.4.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) business days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“Neutral Arbitrator”) who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, Arbitrators except that (i) neither the Landlord or Tenant or either parties’ Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance, and (ii) the Neutral Arbitrator cannot be someone who has represented Landlord and/or Tenant during the five (5) year period prior to such appointment. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty 2.2.4.3 Within ten (3010) business days of following the appointment of the Neutral Arbitrator, reach Landlord and Tenant shall enter into an arbitration agreement (the “Arbitration Agreement”) which shall set forth the following:
2.2.4.3.1 Each of Landlord's and Tenant's best and final and binding determination of the Option Rent (or First Offer Rent, as applicable) exchanged by the parties pursuant to Section 2.2.4, above (or in the case of the First Offer Rent, exchanged by the parties pursuant to Section 1.3.2 above);
2.2.4.3.2 An agreement to be signed by the Neutral Arbitrator, the form of which agreement shall be attached as an exhibit to the Arbitration Agreement, whereby the Neutral Arbitrator shall agree to undertake the arbitration and render a decision in accordance with the terms of this Lease, as modified by the Arbitration Agreement, and shall require the Neutral Arbitrator to whether demonstrate to the reasonable satisfaction of the parties that the Neutral Arbitrator has no conflicts of interest with either Landlord or Tenant;
2.2.4.3.3 Instructions to be followed by the Neutral Arbitrator when conducting such arbitration;
2.2.4.3.4 That Landlord and Tenant shall use each have the right to submit to the Neutral Arbitrator (with a copy to the other party), on or before the date that occurs fifteen (15) days following the appointment of the Neutral Arbitrator, an advocate statement (and any other information such party deems relevant) prepared by or on behalf of Landlord or Tenant, as the case may be, in support of Landlord’s or Tenant’s respective determination of Option Rent (or First Offer Rent, as applicable) (the “Briefs”);
2.2.4.3.5 That within five (5) business days following the exchange of Briefs, Landlord and Tenant shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s Brief (the “First Rebuttals”); provided, however, such First Rebuttals shall be limited to the facts and arguments raised in the other party’s Brief and shall identify clearly which argument or fact of the other party’s Brief is intended to be rebutted;
2.2.4.3.6 That within five (5) business days following the parties’ receipt of each other’s First Rebuttal, Landlord and Tenant, as applicable, shall each have the right to provide the Neutral Arbitrator (with a copy to the other party) with a written rebuttal to the other party’s First Rebuttal (the “Second Rebuttals”); provided, however, such Second Rebuttals shall be limited to the facts and arguments raised in the other party’s First Rebuttal and shall identify clearly which argument or fact of the other party’s First Rebuttal is intended to be rebutted;
2.2.4.3.7 The date, time and location of the arbitration, which shall be mutually and reasonably agreed upon by Landlord and Tenant, taking into consideration the schedules of the Neutral Arbitrator, the Advocate Arbitrators, Landlord and Tenant, and each party’s applicable consultants, which date shall in any event be within forty-five (45) days following the appointment of the Neutral Arbitrator;
2.2.4.3.8 That no discovery shall take place in connection with the arbitration, other than to verify the factual information that is presented by Landlord or Tenant;
2.2.4.3.9 That the Neutral Arbitrator shall not be allowed to undertake an independent investigation or consider any factual information other than presented by Landlord or Tenant, except that the Neutral Arbitrator shall be permitted to visit the Project and the buildings containing the Comparable Transactions;
2.2.4.3.10 The specific persons that shall be allowed to attend the arbitration;
2.2.4.3.11 Tenant shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours (“Tenant’s Initial Statement”);
2.2.4.3.12 Following Tenant’s Initial Statement, Landlord shall have the right to present oral arguments to the Neutral Arbitrator at the arbitration for a period of time not to exceed three (3) hours (“Landlord’s Initial Statement”);
2.2.4.3.13 Following Landlord’s Initial Statement, Tenant shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Landlord (“Tenant’s Rebuttal Statement”);
2.2.4.3.14 Following Tenant’s Rebuttal Statement, Landlord shall have up to two (2) additional hours to present additional arguments and/or to rebut the arguments of Tenant;
2.2.4.3.15 That, not later than ten (10) business days after the date of the arbitration, the Neutral Arbitrator shall render a decision (the “Ruling”) indicating whether Landlord’s or Tenant’s submitted Option Rent (or First Offer Rent, and as applicable) is closer to the Option Rent; (or First Offer Rent, as applicable)
2.2.4.3.16 That following notification of the Ruling, Landlord’s or Tenant’s submitted Option Rent (or First Offer Rent, as applicable) determination, whichever is selected by the Neutral Arbitrator as being closer to the Option Rent (or First Offer Rent, as applicable) shall notify Landlord and Tenant thereof.become the then applicable Option Rent (or First Offer Rent, as applicable); and
2.2.3.4 The 2.2.4.3.17 That the decision of the majority of the three arbitrators Neutral Arbitrator shall be binding upon on Landlord and Tenant. If a date by which an event described in Section 2.2.4.3, above, is to occur falls on a weekend or a holiday, the date shall be deemed to be the next business day.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 2.2.4.4 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay Option Rent equal to the average of the Option Rent initially Rents provided by Landlord and Tenant pursuant to TenantSection 2.2.4, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Sublease Agreement (Snowflake Inc.)
Determination of Option Rent. In the event Tenant timely and appropriately exercises an option to extend the Lease Term, Landlord shall notify Tenant of Landlord’s 's determination of the Option Rent within thirty (30) days thereafter. If Tenant, on or before the date which is ten (10) days following the date upon which Tenant receives Landlord’s 's determination of the Option Rent, in good faith objects to Landlord’s 's determination of the Option Rent, then Landlord and Tenant shall attempt to agree upon the Option Rent using their best good-faith efforts. If Landlord and Tenant fail to reach agreement within ten (10) days following Tenant’s 's objection to the Option Rent (the “"Outside Agreement Date”"), then Tenant shall have the right to withdraw its exercise of the option by delivering written notice thereof to Landlord within five (5) days thereafter, in which event Tenant’s right to extend the Lease pursuant to this Section 2.2 shall be of no further force or effect. If Tenant does not withdraw its exercise of the extension option, each party shall make a separate determination of the Option Rent, as the case may be, within ten (10) days after the Outside Agreement Date, and such determinations shall be submitted to arbitration in accordance with Sections 2.2.3.1 through 2.2.3.7, below. If Tenant fails to object to Landlord’s 's determination of the Option Rent within the time period set forth herein, then Tenant shall be deemed to have objected to Landlord’s 's determination of Option Rent.
2.2.3.1 Landlord and Tenant shall each appoint one arbitrator who shall be a real estate appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of other class A life sciences buildings located in the South San Francisco market area. The determination of the arbitrators shall be limited solely to the issue of whether Landlord’s 's or Tenant’s 's submitted Option Rent is the closest to the actual Option Rent, taking into account the requirements of Section 2.2.2 of this Lease, as determined by the arbitrators. Each such arbitrator shall be appointed within fifteen (15) days after the Outside Agreement Date. Landlord and Tenant may consult with their selected arbitrators prior to appointment and may select an arbitrator who is favorable to their respective positions. The arbitrators so selected by Landlord and Tenant shall be deemed “"Advocate Arbitrators.”"
2.2.3.2 The two (2) Advocate Arbitrators so appointed shall be specifically required pursuant to an engagement letter within ten (10) days of the date of the appointment of the last appointed Advocate Arbitrator to agree upon and appoint a third arbitrator (“"Neutral Arbitrator”") who shall be qualified under the same criteria set forth hereinabove for qualification of the two Advocate Arbitrators, except that neither the Landlord or Tenant or either parties’ ' Advocate Arbitrator may, directly or indirectly, consult with the Neutral Arbitrator prior or subsequent to his or her appearance. The Neutral Arbitrator shall be retained via an engagement letter jointly prepared by Landlord’s 's counsel and Tenant’s counsel.
2.2.3.3 The three arbitrators shall, within thirty (30) days of the appointment of the Neutral Arbitrator, reach a decision as to whether the parties shall use Landlord’s 's or Tenant’s 's submitted Option Rent, and shall notify Landlord and Tenant thereof.
2.2.3.4 The decision of the majority of the three arbitrators shall be binding upon Landlord and Tenant.
2.2.3.5 If either Landlord or Tenant fails to appoint an Advocate Arbitrator within fifteen (15) days after the Outside Agreement Date, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint such Advocate Arbitrator subject to the criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such Advocate Arbitrator.
2.2.3.6 If the two (2) Advocate Arbitrators fail to agree upon and appoint the Neutral Arbitrator within ten (10) business days after the appointment of the last appointed Advocate Arbitrator, then either party may petition the presiding judge of the Superior Court of San Mateo County to appoint the Neutral Arbitrator, subject to criteria in Section 2.2.3.1 of this Lease, or if he or she refuses to act, either party may petition any judge having jurisdiction over the parties to appoint such arbitrator.
2.2.3.7 The cost of the arbitration shall be paid by Landlord and Tenant equally.
2.2.3.8 In the event that the Option Rent shall not have been determined pursuant to the terms hereof prior to the commencement of the Option Term, Tenant shall be required to pay the Option Rent initially provided by Landlord to Tenant, and upon the final determination of the Option Rent, the payments made by Tenant shall be reconciled with the actual amounts of Option Rent due, and the appropriate party shall make any corresponding payment to the other party.
Appears in 1 contract
Sources: Lease (Compugen LTD)