Determination of Value. 10.1 Fair Market Value shall be determined in accordance with the following procedure: (i) Landlord shall within fifteen (15) days following the date on which Landlord receives an Option Exercise Notice select a surveyor and notify Tenant in writing of the name, address and qualifications of such surveyor. Within fifteen (15) days following Tenant’s receipt of Landlord’s notice of the surveyor selected by Landlord, Tenant shall select a surveyor and notify Landlord of the name, address and qualifications of such surveyor. Such two surveyors shall endeavour to agree upon Fair Market Value based on a written appraisal made by each of them as of the date of the Option Exercise Notice. If such two surveyors shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant. (ii) If such two surveyors shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection of the third surveyor shall be binding and conclusive upon Landlord and Tenant. (iii) If such two surveyors shall be unable to agree upon the designation of a third surveyor within ten (10) days after the expiration of the twenty (20) day period referred to in clause (ii) above, or if such third surveyor does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor or a substituted third surveyor, as applicable, shall, at the request of either party hereto, be appointed by the Chairman of the Scottish RIGS. If the said Chairman shall, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer). The determination of Fair Market Value made by the third surveyor appointed pursuant hereto shall be made within twenty (20) days after such appointment. (iv) If a third surveyor is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor and the determination of Fair Market Value made by the surveyor (selected pursuant to clause 10.1(i) hereof) whose determination of Fair Market Value is nearest to that of the third surveyor. Such average shall be binding and conclusive upon Landlord and Tenant. (v) All appraisers selected or appointed pursuant to this clause 10.1 shall (A) be independent qualified Scottish RICS surveyors (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value set forth in clause 10.3, and (D) be registered in the Scottish RICS. For all purposes, the third surveyor shall be deemed an arbiter. (vi) The Cost of the procedure described in this clause 10.1 above shall be borne equally by Landlord and Tenant. 10.2 If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Date, then the Option Purchase Date shall be extended to a date no later than ten (10) days following a determination of Fair Market Value.
Appears in 4 contracts
Sources: Lease (Edgen Group Inc.), Lease Agreement (Edgen Murray II, L.P.), Lease (Edgen Murray PLC)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value or Fair Market Rental Value is required pursuant to any provision of this Lease, such Fair Market Value or Fair Market Rental Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value or Fair Market Rental Value within thirty (30) days after the date (the “Applicable Initial Date”) on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Affected Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value or Fair Market Rental Value pursuant to Paragraph 20(c) or (C) Landlord provides Tenant with notice of Landlord’s intention to require Tenant to make an offer to purchase the Leased Premises pursuant to Paragraph 23(a)(iii). Landlord and Tenant shall endeavor to agree on Fair Market Rental Value during the period following receipt by Landlord of a Notice of Interest to Renew and prior to the latest date for Tenant to deliver a Renewal Notice. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value or Fair Market Rental Value.
(ii) If the parties shall not have signed such agreement (A) within thirty (30) days after the Applicable Initial Date or (B) with respect to a renewal option, during the period following Tenant’s delivery of a Notice of Intent to Renew and, with respect to a Renewal Term, Tenant has nonetheless delivered a Renewal Notice, Tenant shall within fifteen fifty (1550) days following after the Applicable Initial Date or the date on which Landlord receives of the Renewal Notice, as applicable, select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following TenantLandlord’s receipt of LandlordTenant’s notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value or Fair Market Rental Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date (and given to Landlord by Tenant). If such two surveyors appraisers shall agree upon a Fair Market Value or Fair Market Rental Value, the amount of such Fair Market Value or Fair Market Rental Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(ii) If such two surveyors shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection of the third surveyor shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value or Fair Market Rental Value within twenty (20) days after the selection of an appraiser by Landlord, then such appraisers shall advise Landlord and Tenant of their respective determination of Fair Market Value or Fair Market Rental Value and shall select a third appraiser to make the determination of Fair Market Value or Fair Market Rental Value. The selection of the third appraiser shall be binding and conclusive upon Landlord and Tenant.
(iv) If such two appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value or Fair Market Rental Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with respect to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value or Fair Market Rental Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value or Fair Market Rental Value shall be the average of the determination of Fair Market Value or Fair Market Rental Value made by the third surveyor appraiser and the determination of Fair Market Value or Fair Market Rental Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value or Fair Market Rental Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value or Fair Market Rental Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, State if the third surveyor shall be deemed an arbiterState provides for or requires such registration.
(vivii) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Tenant and Landlord and except that if the appraisals are conducted as a result of an Event of Default, the Cost shall be borne solely by Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value or Fair Market Rental Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to a the Leased Premises or the Affected Premises, as applicable, to the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value or Fair Market Rental Value is being made. If, by virtue of any delay, Fair Market Rental Value is not determined by the expiration or termination of the then current Term, then until Fair Market Rental Value is determined, Tenant shall continue to pay Basic Rent during the succeeding Renewal Term in the same amount which it was obligated under this Lease to pay prior to the commencement of the Renewal Term. When Fair Market Rental Value is determined, the appropriate Basic Rent shall be calculated retroactive to the commencement of the Renewal Term and Tenant shall either receive a refund from Landlord (in the case of an overpayment) or shall pay any deficiency to Landlord (in the case of an underpayment).
(c) In determining Fair Market Value or Fair Market Rental Value as defined in clause (b) of the definition of Fair Market Value or Fair Market Rental Value, the appraisers shall add (a) the present value of the Rent for the remaining Term, assuming the Term has been extended for all extension periods provided herein (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (b) the present value of the Leased Premises as of the end of such Term (having assumed the Term has been extended for all extension periods provided herein). The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease.
(d) In determining Fair Market Rental Value, the appraisers shall determine with respect to each Related Premises the amount that a willing tenant would pay, and a willing landlord of a comparable building located in a radius of 125 miles of each Related Premises would accept, at arm’s length, to rent a building of comparable size and quality as the Improvements, taking into account: (a) the age, quality, condition (as required by the Lease) of the Improvements; (b) that the Leased Premises will be leased as a whole or substantially as a whole to a single user; (c) a lease term of five (5) years; (d) an absolute triple net lease; and (e) such other items that professional real estate appraisers customarily consider.
Appears in 4 contracts
Sources: Lease Agreement (Tower Automotive, LLC), Lease Agreement (Tower Automotive, LLC), Lease Agreement (Tower Automotive, LLC)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value or Fair Market Rental Value is required pursuant to any provision of this Lease, such Fair Market Value or Fair Market Rental Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value or Fair Market Rental Value within thirty (30) days after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Affected Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value or Fair Market Rental Value pursuant to Paragraph 20(c) or (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to purchase the Leased Premises pursuant to Paragraph 23(a)(iii). Landlord and Tenant shall endeavor to agree on Fair Market Rental Value during the period following receipt by Landlord of a Notice of Interest to Renew and prior to the latest date for Tenant to deliver a Renewal Notice. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value or Fair Market Rental Value.
(ii) If the parties shall not have signed such agreement (A) within thirty (30) days after the Applicable Initial Date or (B) with respect to a renewal option, during the period following Tenant's delivery of a Notice of Intent to Renew and, with respect to a Renewal Term, Tenant has nonetheless delivered a Renewal Notice, Tenant shall within fifteen fifty (1550) days following after the Applicable Initial Date or the date on which Landlord receives of the Renewal Notice, as applicable, select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value or Fair Market Rental Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date (and given to Landlord by Tenant). If such two surveyors appraisers shall agree upon a Fair Market Value or Fair Market Rental Value, the amount of such Fair Market Value or Fair Market Rental Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(ii) If such two surveyors shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection of the third surveyor shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value or Fair Market Rental Value within twenty (20) days after the selection of an appraiser by Landlord, then such appraisers shall advise Landlord and Tenant of their respective determination of Fair Market Value or Fair Market Rental Value and shall select a third appraiser to make the determination of Fair Market Value or Fair Market Rental Value. The selection of the third appraiser shall be binding and conclusive upon Landlord and Tenant.
(iv) If such two appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value or Fair Market Rental Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with respect to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value or Fair Market Rental Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value or Fair Market Rental Value shall be the average of the determination of Fair Market Value or Fair Market Rental Value made by the third surveyor appraiser and the determination of Fair Market Value or Fair Market Rental Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value or Fair Market Rental Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value or Fair Market Rental Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, State if the third surveyor shall be deemed an arbiterState provides for or requires such registration.
(vivii) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Tenant and Landlord and except that if the appraisals are conducted as a result of an Event of Default, the Cost shall be borne solely by Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value or Fair Market Rental Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to a the Leased Premises or the Affected Premises, as applicable, to the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value or Fair Market Rental Value is being made. If, by virtue of any delay, Fair Market Rental Value is not determined by the expiration or termination of the then current Term, then until Fair Market Rental Value is determined, Tenant shall continue to pay Basic Rent during the succeeding Renewal Term in the same amount which it was obligated under this Lease to pay prior to the commencement of the Renewal Term. When Fair Market Rental Value is determined, the appropriate Basic Rent shall be calculated retroactive to the commencement of the Renewal Term and Tenant shall either receive a refund from Landlord (in the case of an overpayment) or shall pay any deficiency to Landlord (in the case of an underpayment).
(c) In determining Fair Market Value or Fair Market Rental Value as defined in clause (b) of the definition of Fair Market Value or Fair Market Rental Value, the appraisers shall add (a) the present value of the Rent for the remaining Term, assuming the Term has been extended for all extension periods provided herein (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (b) the present value of the Leased Premises as of the end of such Term (having assumed the Term has been extended for all extension periods provided herein). The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease.
(d) In determining Fair Market Rental Value, the appraisers shall determine with respect to each Related Premises the amount that a willing tenant would pay, and a willing landlord of a comparable building located in a radius of 125 miles of each Related Premises would accept, at arm's length, to rent a building of comparable size and quality as the Improvements, taking into account: (a) the age, quality, condition (as required by the Lease) of the Improvements; (b) that the Leased Premises will be leased as a whole or substantially as a whole to a single user; (c) a lease term of five (5) years; (d) an absolute triple net lease; and (e) such other items that professional real estate appraisers customarily consider.
Appears in 2 contracts
Sources: Lease Agreement (Corporate Property Associates 15 Inc), Lease Agreement (Corporate Property Associates 15 Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the “Applicable Initial Date”) on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Affected Premises pursuant to Paragraph 18, or (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c). Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following TenantLandlord’s receipt of LandlordTenant’s notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty thirty (2030) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with respect to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers, (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, State where the third surveyor shall be deemed an arbiterapplicable Related Premises is located if such State provides for or requires such registration.
(vivii) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to a the Leased Premises or the Affected Premises, as applicable, to the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (i) the present value of the Rent for the remaining Term, assuming the Term has been extended for all extension periods provided herein (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and Guarantor and (ii) the present value of the Leased Premises or applicable Related Premises as of the end of such Term (having assumed the Term has been extended for all extension periods provided herein). The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that no Event of Default exists under the Guaranty.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement (Bon Ton Stores Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value or Fair Market Rental Value is required pursuant to any provision of this Lease, such Fair Market Value or Fair Market Rental Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within fifteen thirty (1530) days following after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Leased Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to terminate this Lease pursuant to Paragraph 23(a)(iii), (D) Tenant provides Landlord with an Intended Assignment Offer under Paragraph 21(d), (E) the date on which Landlord receives accepts Tenant's offer pursuant to Paragraph 33(c), (F) the date on which Landlord accepts the Third Party Purchaser's offer pursuant to Paragraph 35(c) and (G) the date on which Landlord accepts Tenant's offer pursuant to Paragraph 38(d). Landlord and Tenant shall endeavor to agree on Fair Market Rental Value on the date (also, an Option Exercise Notice "Applicable Initial Date") which is six (6) calendar months prior to the expiration of the then current Term unless Tenant has previously exercised its option pursuant to Paragraph 5(b) not to have the Term automatically extended. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value or Fair Market Rental Value, as the case may be.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifty (50) days after the Applicable Initial Date select a surveyor an appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s receipt of Landlord’s notice of the surveyor selected by Landlordthereafter, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value or Fair Market Rental Value, as the case may be, based on a written an appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value or Fair Market Rental Value, as the case may be, the amount of such Fair Market Value or Fair Market Rental Value, as the case may be, as so agreed shall be binding and conclusive.
(iii) If such two appraisers shall be unable to agree upon a Fair Market Value or Fair Market Rental Value, as the case may be, within twenty (20) days after the selection of an appraiser by Landlord, then such appraisers shall advise Landlord and Tenant of their respective determination of Fair Market Value or Fair Market Rental Value, as the case may be, and shall select a third appraiser to make the determination of Fair Market Value or Fair Market Rental Value, as the case may be, which determination as to the selection of the third appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiv) If such two surveyors shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection of the third surveyor shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two surveyors shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value or Fair Market Rental Value, as the case may be, within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with notice to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in San Francisco, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)California. The determination of Fair Market Value or Fair Market Rental Value, as the case may be, made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor is selected, Fair Market Value or Fair Market Rental Value, as the case may be, shall be the average of the determination of Fair Market Value or Fair Market Rental Value, as the case may be, made by the third surveyor appraiser and the determination of Fair Market Value or Fair Market Rental Value, as the case may be, made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(iii) hereof) whose determination of Fair Market Value or Fair Market Rental Value, as the case may be, is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of methodology for determining Fair Market Value set forth in clause 10.3Paragraph 29(c) or the methodology for determining Fair Market Rental Value as set forth in Paragraph 29(d), and (D) be registered in the Scottish RICSState if the State provides for or requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Landlord and Tenant, except that the Cost with respect to the appraisals performed under Paragraphs 21, 23, 33 or 38 shall be paid by Tenant and the Cost with respect to the appraisals performed under Paragraph 35 shall be paid by the Third Party Purchaser.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended to a the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made. If, by virtue of any delay, Fair Market Rental Value is not determined by the expiration or termination of the then current Term, then until Fair Market Rental Value is determined, Tenant shall continue to pay Basic Rent during the succeeding Renewal Term in the same amount which it was obligated under this Lease to pay prior to the commencement of the Renewal Term. When Fair Market Rental Value is determined, the appropriate Basic Rent shall be calculated retroactive to the commencement of the Renewal Term and Tenant shall either receive a refund from Landlord (in the case of an overpayment) or shall pay any deficiency to Landlord (in the case of an underpayment).
(c) Fair Market Value shall be determined as follows: The appraisers shall add (i) the present value of the Rent for the remaining Term, (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker) based on the creditworthiness of Tenant and (ii) the present value of the Fair Market Value of the Leased Premises as of the end of the then current Term (without necessarily making any assumption as to whether the Tenant will or will not exercise any remaining options), using a yield rate required by investors for property having similar characteristics, without consideration given to Tenant's credit rating or creditworthiness. In determining the value under (ii), the appraisers shall, insofar as possible, consider properties having similar characteristics and in reasonable proximity to the Leased Premises, but the appraisers shall not be precluded from considering properties that do not have "clean" rooms, properties that are (or are not) located in Hayward, California or properties having a different use than the Leased Premises. The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that Tenant has not violated (and will not violate) any of the Covenants.
(d) In determining Fair Market Rental Value, the appraisers shall determine the amount that a willing tenant would pay, and a willing landlord of a building having similar characteristics and in reasonable proximity to the Leased Premises would accept, at arm's length, taking into account:
(a) the age, quality, and condition of the Improvements; (b) that the Leased Premises may be leased as a whole or substantially as a whole to a single user or leased to multiple users; (c) a lease term of five (5) years; (d) an absolute triple net lease; and (e) such other items that professional real estate appraisers customarily consider. In determining Fair Market Rental Value, the appraisers shall, insofar as possible, consider properties having similar characteristics and in reasonable proximity to the Leased Premises, but the appraisers shall not be precluded from considering properties that do not have "clean" rooms, properties that are (or are not) located in Hayward, California or properties having a different use than the Leased Premises.
Appears in 2 contracts
Sources: Lease Agreement (Etec Systems Inc), Lease Agreement (Etec Systems Inc)
Determination of Value. 10.1 Paragraph 29 of the Lease is hereby deleted in its entirety and replaced with the following:
(a) Whenever a determination of Fair Market Value or Fair Market Rental Value is required pursuant to any provision of this Lease, such Fair Market Value or Fair Market Rental Value, shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the “Applicable Initial Date”) on which (A) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c) or (B) Landlord provides Tenant with notice of Landlord’s intention to require Tenant to make an offer to terminate this Lease pursuant to Paragraph 23(a)(iii). Landlord and Tenant shall endeavor to agree on such Fair Market Rental Value on the date (also, an “Applicable Initial Date”) which is six (6) calendar months prior to the expiration of the then current Term. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value or Fair Market Rental Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following TenantLandlord’s receipt of LandlordTenant’s notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications qualification of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them (and given to Landlord by Tenant) as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value or Fair Market Rental Value, the amount of such Fair Market Value or Fair Market Rental Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(ii) If such two surveyors shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection of the third surveyor shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value or Fair Market Rental Value within twenty (20) days after the selection of an appraiser by Landlord, then such appraisers shall advise Landlord and Tenant of their respective determination of Fair Market Value and shall select a third appraiser to make the determination of Fair Market Value. The selection of the third appraiser shall be binding and conclusive upon Landlord and Tenant.
(iv) If such two appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value or Fair Market Rental Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value or Fair Market Rental Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value or Fair Market Rental Value shall be the average of the determination of Fair Market Value made by the third surveyor and the determination of or Fair Market Rental Value made by the surveyor three (selected pursuant to clause 10.1(i3) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraisers. Such average shall be binding and conclusive upon Landlord and Tenant.
(vb) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value or Fair Market Rental Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICSState if the State provides for or requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Landlord and Tenant.
10.2 (c) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended to a the date no later than ten (10) days following a specified for termination in the particular provision of this Lease with respect to the Leased Premises, as applicable, pursuant to which the determination of Fair Market Value is being made. If, by virtue of any delay, Fair Market Rental Value is not determined by the expiration or termination of the then current Term, then until Fair Market Rental Value is determined, Tenant shall continue to pay Basic Rent during the succeeding Renewal Term in the same amount which it was obligated under this Lease to pay prior to the commencement of the Renewal Term. When Fair Market Rental Value is determined, the appropriate Basic Rent shall be calculated retroactive to the commencement of the Renewal Term and Tenant shall either receive a refund from Landlord (in the case of an overpayment) or shall pay any deficiency to Landlord (in the case of any underpayment).
(d) In determining Fair Market Value as defined in clause (b) of the definition or Fair Market Value, the appraisers shall add (a) the present value of the Rent for the remaining Term (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and Guarantor and (b) the present value of the Leased Premises as of the end of such Term (having assumed the Term has been extended for all extension periods provided herein). The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that no Event of Default exists under the Guaranty.
(e) In determining Fair Market Rental Value, the appraisers shall determine the amount that a willing tenant would pay, and a willing landlord of a comparable building located in a radius of twenty-five (25) miles of the Leased Premises would accept, at arm’s length, to rent a building of comparable size and quality as the Improvements, taking into account: (i) the age, quality, condition (as required by the Lease) of the Improvements; (ii) that the Leased Premises will be leased as a whole or substantially as a whole to a single user; (iii) a lease term of five (5) years; (iv) an absolute triple net lease; and (v) such other items that professional real estate appraisers customarily consider.
Appears in 2 contracts
Sources: Lease Agreement, Lease Agreement (Metaldyne Performance Group Inc.)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Affected Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), or (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to purchase the Leased Premises pursuant to Paragraph 23(a)(iii). Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value. Each and every Fair Market Value determination hereunder shall, unless otherwise expressly agreed to in writing by the parties at the time in question, be a Fair Market Value determination of the entire Related Premises or Leased Premises, as applicable, including the Corresponding Mercury Premises.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date (and given to Landlord by Tenant). If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with respect to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, State where the third surveyor shall be deemed an arbiterapplicable Related Premises is located if such State provides for or requires such registration.
(vivii) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne as follows: Tenant shall pay the cost of the appraiser selected by Tenant and Landlord shall pay the Cost of the appraiser selected by Landlord and all other Costs, including the Cost of the third appraiser, shall be split equally by between Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to a the Leased Premises or the Affected Premises, as applicable, to the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (a) the present value of the Rent for the remaining Term, assuming the Term has been extended for all extension periods provided herein (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (b) the present value of the Leased Premises or applicable Related Premises as of the end of such Term (having assumed the Term has been extended for all extension periods provided herein). The appraisers shall further assume that no default then exists under the Lease, and that Tenant has complied (and will comply) with all provisions of the Lease.
Appears in 2 contracts
Sources: Lease Agreement (Corporate Property Associates 15 Inc), Lease Agreement (Corporate Property Associates 16 Global Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within fifteen (15thirty(30) days following after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Affected Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to purchase the Leased Premises pursuant to Paragraph 23(a)(iii) or (D) Landlord receives an Option Exercise Notice Notice. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value. Each and every Fair Market Value determination hereunder shall, unless otherwise expressly agreed to in writing by the parties at the time in question, be a Fair Market Value determination of the entire Related Premises or Leased Premises, as applicable, including the Corresponding UHS Premises.
(ii) If the parties shall not have signed such agreement within thirty(30) days after the Applicable Initial Date, Tenant shall within fifty(50) days after the Applicable Initial Date select a surveyor an appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen (15twenty(20) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date (and given to Landlord by Tenant). If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20twenty(20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10ten(10) days after the expiration of the twenty (20twenty(20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20twenty(20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with respect to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20twenty(20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, State where the third surveyor shall be deemed an arbiterapplicable Related Premises is located if such State provides for or requires such registration.
(vivii) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne as follows: Tenant shall pay the cost of the appraiser selected by Tenant and Landlord shall pay the Cost of the appraiser selected by Landlord and all other Costs, including the Cost of the third appraiser, shall be split equally by between Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to a the Leased Premises or the Affected Premises, as applicable, to the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (a) the present value of the Rent for the remaining Term, assuming the Term has been extended for all extension periods provided herein (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (b) the present value of the Leased Premises or applicable Related Premises as of the end of such Term (having assumed the Term has been extended for all extension periods provided herein). The appraisers shall further assume that no default then exists under the Lease, and that Tenant has complied (and will comply) with all provisions of the Lease. Further, in determining the Fair Market Value of any Related Premises that is subject to an Expansion Credit, the appraisers shall determine the Fair Market Value of such Related Premises both taking into account the Expansion and as if such Expansion did not exist, and shall present both determinations for such Related Premises to Landlord and Tenant.
Appears in 2 contracts
Sources: Lease Agreement (Corporate Property Associates 16 Global Inc), Lease Agreement (Corporate Property Associates 15 Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant (or Third Party Purchaser with respect to a determination under clause (D) below) shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the "APPLICABLE INITIAL DATE") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Leased Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c) or (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to terminate this Lease pursuant to Paragraph 23(a)(iii). Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them (and given to Landlord by Tenant) as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenantconclusive.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICSState if the State provides for or requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally entirely by Landlord and Tenant.
10.2 If, (b) by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended to a the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (a) the present value of the Rent for the remaining Term (including the Renewal Term if Tenant has exercised its option to extend pursuant to Paragraph 5(b) hereof) (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (b) the present value of the Leased Premises as of the end of such Term. The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that Tenant has not violated (and will not violate) any of the Covenants.
Appears in 1 contract
Determination of Value. 10.1 (a) Whenever a determination of Fair market Value or Fair Market Rental Value is required pursuant to any provision of this Lease, such Fair Market Value or Fair Market Rental Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Leased Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to terminate this Lease pursuant to
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen within twenty (1520) days following Tenant’s receipt of Landlord’s notice of the surveyor selected by Landlordthereafter, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value or Fair Market Rental Value, as the case may be, based on a written an appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value or Fair Market Rental Value, as the case may be, the amount of such Fair Market Value or Fair Market Rental Value, as the case may be, as so agreed shall be binding and conclusive.
(iii) If such two appraisers shall be unable to agree upon a Fair Market Value or Fair Market Rental value, as the case may be, within twenty (20) days after the selection of an appraiser by Landlord, then such appraisers shall advise Landlord and Tenant of their respective determination of Fair Market Value or Fair Market Rental Value, as the case may be, and shall select a third appraiser to make the determination of Fair Market Value or Fair Market Rental Value, as the case may be, which determination as to the selection of the third appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiv) If if such two surveyors shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection of the third surveyor shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two surveyors shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if -53- 56 such third surveyor appraiser does not make a determination of Fair Market Value or Fair Market Rental Value, as the case may be, within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with notice to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in San Francisco, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)California. The determination of Fair Market Value or Fair Market Rental Value, an the case may be, made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor is selected, Fair Market Value or Fair Market Rental Value, as the case may be, shall be the average of the determination of Fair Market Value or Fair Market Rental Value, as the case may be, made by the third surveyor appraiser and the determination of Fair Market Value or Fair Market Rental Value, as the case may be, made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(iii) hereof) whose determination of Fair Market Value or Fair Market Rental Value, as the case may be, is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value set forth in clause 10.3Paragraph 2 or the definition of Fair Market Rental Value as set forth below, and (D) be registered in the Scottish RICSState if the State provides for or requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Landlord and Tenant, except that the Cost with respect to the appraisals performed under Paragraphs 21, 23, 33 or 38 shall be paid by Tenant and the Cost with respect to the appraisals performed under Paragraph 35 shall be paid by the Third Party Purchaser.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended to a the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made. If, by virtue of any delay, Fair Market Rental Value is not determined by the expiration or termination of the then current Term, then until Fair Market Rental Value is determined, Tenant shall continue to pay Basic Rent during the succeeding Renewal Term in the same amount which it was obligated under this Lease
(c) Fair Market Value shall be determined as follows: The appraisers shall add (i) the present value of the Rent for the remaining Term, (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker) based on the creditworthiness of Tenant and (ii) the present value of the Fair Market Value of the Leased Premises as of the end of the then current Term (without necessarily making any assumption as to whether the Tenant will or will not exercise any remaining options), using a yield rate required by investors for property having similar characteristics, without consideration given to Tenant's credit rating or creditworthiness. In determining the value under (ii), the appraisers shall, insofar as possible, consider properties having similar characteristics and in reasonable proximity to the Leased Premises, but the appraisers shall not be precluded from considering properties that do not have "clean" rooms, properties that are (or are not) located in Hayward, California or properties having a different use than the Leased Premises. The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that Tenant has not violated (and will not violate) any of the Covenants.
(d) In determining Fair Market Rental Value, the appraisers shall determine the amount that a willing tenant would pay, and a willing landlord of a building having similar characteristics and in reasonable proximity to the Leased Premises would accept, at arm's length, taking into account:
(a) the age, quality, and condition of the Improvements; (b) that the Leased Premises will be leased as a whole or substantially as a whole to a single user; (c) a lease term of five (5) years; (d) an absolute triple net lease; and (e) such other items that professional real estate appraisers customarily consider. In determining Fair Market Rental Value, the appraisers shall, insofar as possible, consider properties having similar characteristics and in reasonable proximity to the Leased Premises, but the appraisers shall not be precluded from considering properties that do not have "clean" rooms, properties that are (or are not) located in Hayward, or properties having a different use than the Leased Premises.
Appears in 1 contract
Sources: Lease Agreement (Corporate Property Associates 14 Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value or Fair Market Rental Value is required pursuant to any provision of this Lease, such Fair Market Value or Fair Market Rental Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant (or Third Party Purchaser with respect to a determination under clause (D) below) shall endeavor to agree upon such Fair Market Value within fifteen thirty (1530) days following after the date (the "Applicable Initial Date"") on which (A) Tenant provides Landlord receives with notice of its intention to terminate this Lease and purchase the Leased Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to terminate this Lease pursuant to Paragraph 23(a)(iii) or (D) Tenant provides Landlord with Tenant's Option Exercise Notice pursuant to Paragraph 35(a). Landlord and Tenant shall endeavor to agree on Fair Market Rental Value on the date (also, an "Applicable Initial Date") which is six (6) calendar months prior to the expiration of the then current Term unless Tenant has previously exercised its option pursuant to Paragraph 5(b) not to have the Term automatically extended. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value or Fair Market Rental Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifty (50) days after the Applicable Initial Date select a surveyor an appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen Such appraiser shall determine a Fair Market Value or Fair Market Rental Value, as applicable, based upon a written appraisal as of the Relevant Date, within twenty (1520) days after the later to occur of (A) the date of selection of such appraiser by Tenant and (B) the date that Landlord notifies Tenant that such appraiser is acceptable and the determination of such appraiser shall be binding and conclusive upon Landlord and Tenant. If such appraiser shall not be acceptable to Landlord, in its sole and absolute discretion, or if such appraiser shall fail to make its determination as required herein within such twenty (20) day period, then within twenty-five (25) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value or Fair Market Rental Value, as applicable, based on a written appraisal made by each of them (and given to Landlord by Tenant) as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value or Fair Market Rental Value, as applicable, the amount of such Fair Market Value or Fair Market Rental Value, as applicable, as so agreed shall be binding and conclusive upon Landlord and Tenant.
(ii) If such two surveyors shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection of the third surveyor shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value or Fair Market Rental Value, as applicable, within twenty (20) days after the -39- 42 selection of an appraiser by Landlord, then such appraisers shall advise Landlord and Tenant of their respective determination of Fair Market Value or Fair Market Rental Value, as applicable, and shall select a third appraiser to make the determination of Fair Market Value or Fair Market Rental Value, as applicable. The selection of the third appraiser shall be binding and conclusive upon Landlord and Tenant.
(iv) If such two appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value or Fair Market Rental Value, as applicable, within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value or Fair Market Rental Value, as applicable, made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value or Fair Market Rental Value, as applicable, shall be the average of the determination of Fair Market Value or Fair Market Rental Value, as applicable, made by the third surveyor appraiser and the determination of Fair Market Value or Fair Market Rental Value, as applicable, made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value or Fair Market Rental Value, as applicable, hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICSState if the State provides for or requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally entirely by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended to a the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made. If, by virtue of any delay, Fair Market Rental Value is not determined by the expiration or termination of the then current Term, then until Fair Market Rental Value is determined, Tenant shall continue to pay Basic Rent during the succeeding Renewal Term in the same amount which it was obligated under this Lease to pay prior to the commencement of the Renewal Term. When Fair Market Rental Value is determined, the appropriate Basic Rent shall be calculated retroactive to the commencement of the Renewal Term and Tenant shall either receive a refund from Landlord (in the case of an overpayment) or shall pay any deficiency to Landlord (in the case of an underpayment).
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, each appraiser shall add (a) the Present Value of the Rent for the remaining Term, assuming the Term has been extended for all extension periods provided herein (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (b) the Present Value of the Leased Premises as of the end of such Term (having assumed the Term has been extended for all extension periods provided herein). The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that Tenant has not violated (and will not violate) any of the Covenants.
(d) In determining Fair Market Rental Value, each appraiser shall determine the amount that a willing tenant would pay, and a willing landlord of a comparable building located in a radius of five (5) miles of the Leased Premises would accept, at arm's length, to rent a building of comparable size and quality as the Improvements, taking into account: (a) the age, quality, condition (as required by the Lease) of the Improvements; (b) that the Leased Premises will be leased as a whole or substantially as a whole to a single user; (c) a lease term of five (5) years; (d) an absolute triple net lease; and (e) such other items that professional real estate appraisers customarily consider.
Appears in 1 contract
Sources: Lease Agreement (Corporate Property Associates 14 Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value or Fair Market Rental Value, as applicable, is required pursuant to any provision of this Lease, such Fair Market Value or Fair Market Rental Value, as applicable, shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within fifteen thirty (1530) days following after the date (the "APPLICABLE INITIAL DATE") on which Landlord receives provides Tenant with notice of Landlord's intention to require Tenant to make an Option Exercise Notice offer to terminate this Lease pursuant to Paragraph 23(a)(iii). Landlord and Tenant shall endeavor to agree on Fair Market Rental Value on the date (also, an "APPLICABLE INITIAL DATE") which is six (6) calendar months prior to the expiration of the first Renewal Term unless Tenant has previously exercised its option pursuant to Paragraph 5(b) not to have the Term automatically extended for the second Renewal Term. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value or Fair Market Rental Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifty (50) days after the Applicable Initial Date select a surveyor an appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value or Fair Market Rental Value based on a written appraisal made by each of them (and given to Landlord by Tenant) as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value or Fair Market Rental Value, the amount of such Fair Market Value or Fair Market Rental Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(ii) If such two surveyors shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection of the third surveyor shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value or Fair Market Rental Value within twenty (20) days after the selection of an appraiser by Landlord, then such appraisers shall advise Landlord and Tenant of their respective determination of Fair Market Value or Fair Market Rental Value and shall select a third appraiser to make the determination of Fair Market Value or Fair Market Rental Value. The selection of the third appraiser shall be binding and conclusive upon Landlord and Tenant.
(iv) If such two appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value or Fair Market Rental Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the Chairman office of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in Detroit, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)Michigan. The determination of Fair Market Value or Fair Market Rental Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value or Fair Market Rental Value shall be the average of the determination of Fair Market Value or Fair Market Rental Value made by the third surveyor appraiser and the determination of Fair Market Value or Fair Market Rental Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value or Fair Market Rental Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers, (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value or Fair Market Rental Value herein set forth in clause 10.3above, and (D) be registered in the Scottish RICSState if the State provides for or requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 above appraiser selected by a party shall be borne such party and if a third appraiser is selected, the Cost of such appraiser shall be shared equally by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to the Leased Premises or the Affected Premises, as applicable, to the date specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made. If, by virtue of any delay, Fair Market Rental Value is not determined by the expiration or termination of the first Renewal Term, then until Fair Market Rental Value is determined, Tenant shall continue to pay Basic Rent during the second Renewal Term in the same amount which it was obligated under this Lease to pay prior to the commencement of the second Renewal Term. When Fair Market Rental Value is determined, the appropriate Basic Rent shall be calculated retroactive to the commencement of the second Renewal Term and Tenant shall pay any deficiency to Landlord.
(c) In determining Fair Market Rental Value, the appraisers shall determine with respect to the Leased Premises the amount that a willing tenant would pay, and a willing landlord would accept, at arm's length, to rent comparable premises in the city/township of Plymouth/Troy, taking into account: (a) the age, quality and condition (as r▇▇▇▇red by this Lease) of the Improvements; (b) that the Leased Premises will be leased as a whole or substantially as a whole to a date no later than single user; (c) a lease term of ten (10) days following years; (d) a determination of Fair Market Valuetriple net lease; and (e) such other items that professional real estate appraisers customarily consider.
Appears in 1 contract
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Leased Premises under Paragraph 21(c), (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c) or (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to purchase the Leased Premises pursuant to Paragraph 23(a)(iii) or the Abandonment Premises under Paragraph 37(g). Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within twenty (20) days after the Applicable Initial Date, Tenant shall within fifteen forty (1540) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen ten (1510) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date (and given to Landlord by Tenant). If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty fifteen (2015) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty fifteen (2015) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty fifteen (2015) days after his selection, then such third surveyor appraiser or a 37 substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in Chicago, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)Illinois. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty fifteen (2015) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, State if the third surveyor shall be deemed an arbiterState provides for or requires such registration.
(vivii) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to a the Leased Premises or the Affected Premises, as applicable, to the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (i) the present value of the Rent for the remaining Term (assuming the Term has been extended only for any exercised extension periods) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (ii) the present value of the Leased Premises as of the end of such Term (having assumed the Term has been extended for all extension periods provided herein). The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that Tenant has not violated (and will not violate) any of the Covenants.
Appears in 1 contract
Sources: Lease Agreement (Corporate Property Associates 12 Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant (or Third Party Purchaser with respect to a determination under clause (D) below) shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the "Applicable Initial Date"") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Leased Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to terminate this Lease pursuant to Paragraph 23(a)(iii) or (D) Landlord receives a Sales Contract acceptable to Landlord as described in the fourth paragraph of Paragraph 35(a). Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them (and given to Landlord by Tenant) as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICSState if the State provides for or requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended to a the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (a) the present value of the Rent for the remaining Term (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (b) the present value of the Leased Premises as of the end of such Term. The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that Tenant has not violated (and will not violate) any of the Covenants.
Appears in 1 contract
Sources: Lease Agreement (Corporate Property Associates 14 Inc)
Determination of Value. 10.1 (a) If a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the "Applicable Initial Date") on which (A) Tenant makes the Intended Assignment Offer under Paragraph 21(a) or (B) Tenant makes an offer with respect to the Allentown Premises pursuant to Paragraph 37. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date (and given to Landlord by Tenant). If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenantconclusive.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with respect to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, State if the third surveyor shall be deemed an arbiterState provides for or requires such registration.
(vivii) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to a the Leased Premises or the Related Premises, as applicable, to the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (a) of the definition of Fair Market Value, the appraisers shall add (i) the present value of the Rent for the remaining Term (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (ii) the present value of the Leased Premises as of the end of such Term. The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that Guarantor and Tenant have not violated (and will not violate) any of the Covenants.
Appears in 1 contract
Sources: Lease Agreement (Corporate Property Associates 12 Inc)
Determination of Value. 10.1 Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord Upon delivery of notice by Buyer to Unocal of a Material Environmental Deficiency, Buyer and Unocal shall within fifteen (15) days following the date on which Landlord receives an Option Exercise Notice select a surveyor meet and notify Tenant in writing of the name, address and qualifications of such surveyor. Within fifteen (15) days following Tenant’s receipt of Landlord’s notice of the surveyor selected by Landlord, Tenant shall select a surveyor and notify Landlord of the name, address and qualifications of such surveyor. Such two surveyors shall endeavour use their best efforts to agree upon Fair Market Value on whether such a Material Environmental Deficiency exists. The value of Environmental Liabilities shall be based on a written appraisal made by each of them as of the date of the Option Exercise Notice. If such two surveyors shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenantestimated Remediation Cost.
(ii) If such two surveyors If, during the Due Diligence Period, Buyer determines there is a Material Environmental Deficiency and desires to terminate this Agreement, it shall immediately so notify Unocal. Unocal shall respond on the earlier of the Date of Closing or seven (7) days from the date of notice whether it concurs in Buyer's determination that the estimated Remediation Cost of the applicable Environmental Liabilities is sufficient to constitute a Material Environmental Deficiency. In the event Unocal concurs in Buyer's determination, the termination of this Agreement shall be unable to agree upon treated as a Fair Market Value within twenty (20) days after the selection of a surveyor termination by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection mutual consent of the third surveyor shall be binding and conclusive upon Landlord and TenantParties.
(iii) If such two surveyors shall be unable to agree upon Unocal timely notifies Buyer that it does not concur with the designation of a third surveyor within ten (10) days after the expiration Buyer's determination of the twenty (20) day period referred estimated Remediation Costs, Buyer may still elect to in clause (ii) above, or if such third surveyor does not make terminate this Agreement and request a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor or a substituted third surveyor, as applicable, shall, at the request value of either party hereto, be appointed the Environmental Liabilities by the Chairman following procedure: the Parties will submit the issue of the Scottish RIGSexistence of a Material Environmental Deficiency to arbitration in accordance with the arbitration procedures set forth in EXHIBIT "D". If the said Chairman shallarbitrators determine that a Material Environmental Deficiency does not exist, for any reason, Buyer will pay the arbitration costs and shall not be available or entitled to the return of the ▇▇▇▇▇▇▇ Money Deposit. If the arbitrators find that a Material Environmental Deficiency does exist, Unocal will pay the arbitration costs and shall be unable to make such appointment return Buyer's ▇▇▇▇▇▇▇ Money Deposit with interest at the time Interest Rate within fifteen (15) business days. If Buyer does not elect to terminate this Agreement prior to the commencement of the application thereforarbitration in connection with this Section, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman Buyer shall be deemed to include have waived its right to terminate this Agreement under this Section unless and until the arbitrators determined that a reference Material Environmental Deficiency exists, and if such arbitrators determine that no Material Environmental Deficiency exists, then Buyer shall pay all arbitration costs and proceed to such senior office holder or Closing, subject to the other officer). The determination terms and conditions of Fair Market Value made by the third surveyor appointed pursuant hereto shall be made within twenty (20) days after such appointmentthis Agreement.
(iv) If a third surveyor is selected, Fair Market Value Any and all disagreements between Buyer and Unocal regarding the value of Environmental Liabilities shall be submitted to arbitration in accordance with the average of the determination of Fair Market Value made by the third surveyor and the determination of Fair Market Value made by the surveyor (selected pursuant to clause 10.1(i) hereof) whose determination of Fair Market Value is nearest to that of the third surveyor. Such average shall be binding and conclusive upon Landlord and Tenant.
(v) All appraisers selected or appointed pursuant to this clause 10.1 shall (A) be independent qualified Scottish RICS surveyors (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value arbitration procedures set forth in clause 10.3, and (EXHIBIT "D) be registered in the Scottish RICS". For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 above shall be borne equally by Landlord and Tenant.
10.2 If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Date, then the Option Purchase Date shall be extended to a date no later than ten (10) days following a determination of Fair Market Value.SECTION 5
Appears in 1 contract
Sources: Purchase and Sale Agreement (Quicksilver Resources Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedureprocedures set forth below and shall apply equally to a determination of Fair Market Value and Fair Market Rental Value unless the context shall otherwise require:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within fifteen thirty (1530) days following after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Affected Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to terminate this Lease pursuant to Paragraph 23(a)(iii) or (D) Landlord receives an Option Exercise Notice pursuant to Paragraph 35. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value. Landlord and Tenant shall endeavor to agree on Fair Market Rental Value on the date (also, an "Applicable Initial Date") which is six (6) calendar months prior to the expiration of the then current Term unless Tenant has previously exercised its option pursuant to Paragraph 5(b) not to have the Term automatically extended.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifty (50) days after the Applicable Initial Date select a surveyor an appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them (and given to Landlord by Tenant) as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, the third surveyor shall be deemed an arbiterState if such State provides for or requires such registration.
(vivii) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be with respect to the Leased Premises or the Affected Premises, as applicable, extended to the date specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made. If, by virtue of any delay, Fair Market Rental Value is not determined by the expiration or termination of the then current Term, then until Fair Market Rental Value is determined, Tenant shall continue to pay Basic Rent during the succeeding Renewal Term in the same amount which it was obligated under this Lease to pay prior to the commencement of the Renewal Term. When Fair Market Rental Value is determined, the appropriate Basic Rent shall be calculated retroactive to the commencement of the Renewal Term and Tenant shall either receive a date refund from Landlord (if applicable in the case of an overpayment) or shall pay any deficiency to Landlord (in the case of an underpayment).
(c) In determining Fair Market Value as defined in clause (A)(y) of the definition of Fair Market Value, the appraisers shall add (i) the present value of the Rent for the remaining Term, including all extension periods actually exercised by Tenant or deemed exercised pursuant to Paragraph 5(b) of this Lease, using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (ii) the residual present value of the Leased Premises or the applicable Related Premises as of the end of such Term (having assumed the Term has been extended for all extension periods provided herein). The appraisers shall further assume that no later than default then exists under the Lease that Tenant has complied (and will comply) with all provisions of the Lease.
(d) In determining Fair Market Rental Value, the appraisers shall determine the amount that a willing tenant would pay, and a willing landlord of a comparable building (utilizing a radius or region, as applicable, with respect to the California Premises and the Texas Premises, as the case may be, consistent with the radius or region initially utilized for comparables in the appraisals conducted at the time of execution of this Lease, appropriately adjusted to reflect the actual location of the applicable Related Premises) would accept, at arm's length, to rent a building of comparable size and quality as the Improvements, taking into account: (i) the age, quality, condition (as required by the Lease) of the Improvements; (ii) that the Leased Premises will be leased as a whole or substantially as a whole to a single user; (iii) a lease term of ten (10) days following a determination of Fair Market Valueyears; (iv) an absolute triple net lease; and (v) such other items that professional real estate appraisers customarily consider.
Appears in 1 contract
Sources: Lease Agreement (Finisar Corp)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within fifteen thirty (1530) days following after the date (the "APPLICABLE INITIAL DATE") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Affected Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to purchase the Leased Premises pursuant to Paragraph 23(a)(iii) or (D) Landlord receives an Option Exercise Notice Notice. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifty (50) days after the Applicable Initial Date select a surveyor an appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date (and given to Landlord by Tenant). If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, State if the third surveyor shall be deemed an arbiterState provides for or requires such registration.
(vivii) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to a the Leased Premises or the Affected Premises, as applicable, to the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (a) the present value of the Rent for the remaining Term, assuming the Term has been extended for all extension periods provided herein (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (b) the present value of the Leased Premises as of the end of such Term (having assumed the Term has been extended for all extension periods provided herein). The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that Tenant has not violated (and will not violate) any of the Covenants.
Appears in 1 contract
Sources: Lease Agreement (Atrium Corp)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within fifteen thirty (1530) days following after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Leased Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to terminate this Lease pursuant to Paragraph 23(a)(iii) or (D) Landlord receives an Option Exercise Notice Notice. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifty (50) days after the Applicable Initial Date select a surveyor an appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them (and given to Landlord by Tenant) as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICSState if such State provides for or requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally entirely by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended to a the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (i) the present value of the Rent for the remaining Term, including any extension periods that Tenant has exercised or has been deemed to have exercised, using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (ii) the present value of the Leased Premises as of the end of such Term, including any extension periods that Tenant has exercised or has been deemed to have exercised. The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease.
Appears in 1 contract
Sources: Lease Agreement (Pemstar Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Affected Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Tenant provides Landlord with an Intended Assignment Notice pursuant to Paragraph 21(a)(iii), (D) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to purchase the Leased Premises pursuant to Paragraph 23(a)(iii), or (E) Tenant provides Landlord with notice pursuant to Paragraph 38(a) of its intention to exercise its option to purchase the Leased Premises. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date (and given to Landlord by Tenant). If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenantconclusive.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with respect to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, State if the third surveyor shall be deemed an arbiterState provides for or requires such registration.
(vivii) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally entirely by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to a the Leased Premises or the Affected Premises, as applicable, to the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market ValueValue is being made.
Appears in 1 contract
Sources: Lease Agreement (Del Monte Foods Co)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within fifteen thirty (1530) days following after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Leased Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to terminate this Lease pursuant to Paragraph 23(a)(iii) or (D) Landlord receives an Option Exercise Notice Notice. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifty (50) days after the Applicable Initial Date select a surveyor an appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them (and given to Landlord by Tenant) as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers having no less than ten (10) years experience involving properties similar to the Leased Premises, (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICSState if the State provides for or requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended to a the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (i) the present value of the Rent for the remaining Term using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and Guarantor and (ii) the present value of the Leased Premises as of the end of such Term. The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that no Event of Default exists under the Guaranty.
Appears in 1 contract
Sources: Lease Agreement (Corporate Property Associates 15 Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the "Applicable Initial Date") on which (A) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c) or (B) Tenant provides notice to Landlord of Tenant's intention to make an offer to purchase the Leased Premises pursuant to Paragraph 23(m). Landlord and Tenant shall endeavor to agree on Fair Market Rental Value on the date (also, an "Applicable Initial Date") which is six (6) calendar months prior to the expiration of the then current Term unless Tenant has previously exercised its option pursuant to Paragraph 5(b) not to have the Term automatically extended. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value or Fair Market Rental Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value or Fair Market Rental Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date (and given to Landlord by Tenant). If such two surveyors appraisers shall agree upon a Fair Market Value or Fair Market Rental Value, the amount of such Fair Market Value or Fair Market Rental Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(ii) If such two surveyors shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection of the third surveyor shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value or Fair Market Rental Value within twenty (20) days after the selection of an appraiser by Landlord, then such appraisers shall advise Landlord and Tenant of their respective determinations of Fair Market Value or Fair Market Rental Value and shall select a third appraiser to make the determination of Fair Market Value or Fair Market Rental Value. The selection of the third appraiser shall be binding and conclusive upon Landlord and Tenant.
(iv) If such two appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value or Fair Market Rental Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with respect to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value or Fair Market Rental Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value or Fair Market Rental Value shall be the average of the determination of Fair Market Value or Fair Market Rental Value made by the third surveyor appraiser and the determination of Fair Market Value or Fair Market Rental Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value or Fair Market Rental Value is nearest closest to the total dollar value to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers, (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value or Fair Market Rental Value hereinabove set forth in clause 10.3forth, and (D) be registered licensed in the Scottish RICS. For all purposes, State if the third surveyor shall be deemed an arbiterState provides for or requires such registration.
(vivii) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to a the Leased Premises or the Affected Premises, as applicable, to the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made. If, by virtue of any delay, Fair Market Rental Value is not determined by the expiration or termination of the then current Term, then until Fair Market Rental Value is determined, Tenant shall continue to pay Basic Rent during the succeeding Renewal Term in the same amount which it was obligated under this Lease to pay prior to the commencement of the Renewal Term. When Fair Market Rental Value is determined, the appropriate Basic Rent shall be calculated retroactive to the commencement of the Renewal Term and Tenant shall either receive a refund from Landlord (in the case of an overpayment) or shall pay any deficiency to Landlord (in the case of an underpayment).
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (a) the present value of the Basic Rent for the remaining Term then in effect (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be, but shall not be required to be, determined by an investment banker retained by any appraiser electing to seek such opinion) based on the creditworthiness of Tenant and (b) the present value of the Leased Premises as of the end of such Term (without assuming the Term has been extended). The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that Tenant has not violated (and will not violate) any of the Covenants.
(d) In determining Fair Market Rental Value, the appraisers shall determine with respect to each Related Premises the amount that a willing tenant would pay for, and a willing landlord of the Leased Premises would accept, at arm's length for the Leased Premises, taking into account comparable buildings and also taking into account: (a) the age, quality and condition (as required by the Lease) of the Improvements; (b) that the Leased Premises will be leased as a whole or substantially as a whole to a single user; (c) a lease term of five (5) years; (d) an absolute triple net lease; and (e) such other items that professional real estate appraisers customarily consider.
Appears in 1 contract
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Rental Value is required pursuant to any provision of this Lease, such Fair Market Rental Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree on Fair Market Rental Value on the date (the “Applicable Initial Date”) which is six (6) calendar months prior to the expiration of the then current Term unless Tenant has previously exercised its option pursuant to Paragraph 5(b) not to have the Term automatically extended. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Rental Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following TenantLandlord’s receipt of LandlordTenant’s notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Rental Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeApplicable Initial Date (and given to Landlord by Tenant). If such two surveyors appraisers shall agree upon a Fair Market Rental Value, the amount of such Fair Market Rental Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(ii) If such two surveyors shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection of the third surveyor shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Rental Value within twenty (20) days after the selection of an appraiser by Landlord, then such appraisers shall advise Landlord and Tenant of their respective determination of Fair Market Rental Value and shall select a third appraiser to make the determination of Fair Market Rental Value. The selection of the third appraiser shall be binding and conclusive upon Landlord and Tenant.
(iv) If such two appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Rental Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with respect to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in Minneapolis, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)Minnesota. The determination of Fair Market Rental Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Rental Value shall be the average of the determination of Fair Market Rental Value made by the third surveyor appraiser and the determination of Fair Market Rental Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 36(a)(ii) hereof) whose determination of Fair Market Rental Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 36(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Rental Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, the third surveyor shall be deemed an arbiterState if same provides for or requires such registration.
(vivii) The Cost of the procedure described in this clause 10.1 Paragraph 36(a) above shall be borne equally by Landlord and Tenant.
10.2 If, by virtue of any delay, (b) In determining Fair Market Value is not determined Rental Value, the appraisers shall determine the amount that a willing tenant would pay, and a willing landlord of a comparable building in a comparable location would accept, at arm’s length, to rent a building of comparable size and quality as the Improvements, taking into account: (i) the age, quality, condition (as required by the Option Purchase Date, then Lease) of the Option Purchase Date shall Improvements; (ii) that the Leased Premises will be extended leased as a whole to a date no later than single user for its highest and best use; (iii) a lease term of ten (10) days following a determination of Fair Market Valueyears; (iv) an absolute triple net lease; and (v) such other items that professional real estate appraisers customarily consider.
Appears in 1 contract
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention not to extend or to terminate this Lease pursuant to Paragraph 13(b) or Paragraph 14(i), (B) Tenant provides Landlord with notice of Tenant's intention to purchase the Leased Premises pursuant to Paragraph 28, (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to purchase the Leased Premises pursuant to Paragraph 19(b)(v) hereof, as applicable. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement setting forth the amount of such agreed Fair Market Value within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s receipt of Landlord’s notice of the surveyor selected by Landlordthereafter, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors The appraiser selected by Tenant and the appraiser selected by Landlord shall endeavour endeavor to agree upon the Fair Market Value of the Leased Premises, based on a written appraisal Fair Market Appraisal made by each of them as of the date specified in the particular provision of this Lease (the Option Exercise Notice"Applicable Provision") pursuant to which the determination of Fair Market Value is being made. If such if the said two surveyors appraisers shall agree upon a such Fair Market Value, the amount of such Fair Market Value as so agreed to by the said two appraisers shall be binding and conclusive upon Landlord and Tenantconclusive.
(iiiii) If such two surveyors the appraiser selected by Tenant and the appraiser selected by Landlord shall be unable to agree upon a such Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the said two appraisers shall select a third surveyor appraiser to make the determination of such Fair Market Value. The selection Value and the determination of the such third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors In the event the appraiser selected by Tenant and the appraiser selected by Landlord shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, above or if such in the event the third surveyor appraiser so selected does not make a determination of the Fair Market Value of the Leased Premises within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by 52 -50- the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in Philadelphia, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)Pennsylvania. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(iv) If a third surveyor is selected, . Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor (selected pursuant to clause 10.1(i) hereof) appraiser whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(v) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 27(a) shall (A) be independent qualified Scottish RICS surveyors (B) appraisers. Such appraisers shall have no right, power or authority to alter or modify the provisions of this Lease, (C) Lease and in determining the Fair Market Value of the Leased Premises such appraisers shall utilize the definition of Fair Market Value hereinabove set forth in clause 10.3, and (D) be registered in the Scottish RICS. For all purposes, the third surveyor shall be deemed an arbiterabove.
(vib) The Cost cost of the procedure described in this clause 10.1 Paragraph 27(a) above shall be borne equally entirely by Landlord Tenant in the case of a purchase pursuant to Paragraph 19(b)(iii). In all other cases Landlord, shall pay the fees and costs of the appraiser appointed by Landlord, Tenant shall pay fees and costs of the appraiser appointed by Tenant, and the fees and costs of the third appraiser (and of the American Arbitration Association, if applicable), shall be split evenly between the parties.
10.2 (c) If, by virtue of any delaydelay in the appointment of a third appraiser pursuant to Paragraph 27(a)(iv) above or of any delay by such appointed third appraiser to determine such Fair Market Value, the Fair Market Value of the Leased Premises is not determined by such appointed third appraiser within one hundred forty (140) days after the Option Purchase Applicable Initial Date, then the Option Purchase Date date (the "Applicable Final Date") on which the Leased Premises would otherwise be sold to Tenant or on which this Lease would otherwise terminate, as specified in the Applicable Provision, shall be extended to a date no later than ten the same number of days (10the "Delay Period") days following a by which the total period so required for the binding and conclusive determination of Fair Market ValueValue exceeds one hundred forty (140) days and all relevant defined terms used in the Applicable Provision shall be deemed amended accordingly, anything to the contrary in the Applicable Provision notwithstanding. In addition, any time period which is afforded Landlord under the Applicable Provision within which to accept or reject an offer by Tenant shall likewise be extended by the number of days equal to the Delay Period.
Appears in 1 contract
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the “Applicable Initial Date”) on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Leased Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), or (C) Landlord provides Tenant with notice of Landlord’s intention to require Tenant to make an offer to terminate this Lease pursuant to Paragraph 23(a)(iii). Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following TenantLandlord’s receipt of LandlordTenant’s notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them (and given to Landlord by Tenant) as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICSState if the State provides for or requires such registration. For all purposes, Each party shall pay the costs of its own appraiser and the cost of the third surveyor appraiser shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 above shall be borne split equally by between Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended to a the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (a) the present value of the Rent for the remaining Term, assuming the Term has been extended for all extension periods provided herein (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (b) the present value of the Leased Premises as of the end of such Term (having assumed the Term has been extended for all extension periods provided herein). The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease.
Appears in 1 contract
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant (or Third Party Purchaser with respect to a determination under clause (D) below) shall endeavor to agree upon such Fair Market Value within fifteen thirty (1530) days following after the date (the "Applicable Initial Date"") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Affected Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to terminate this Lease pursuant to Paragraph 23(a)(iii) or (D) Landlord receives an Option Exercise Notice Notice. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifty (50) days after the Applicable Initial Date select a surveyor an appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them (and given to Landlord by Tenant) as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICSState if the State provides for or requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to a the Leased Premises or the Affected Premises, as applicable, to the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (a) the present value of the Rent for the remaining Term, assuming the Term has been extended for all extension periods provided herein (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (b) the present value of the Leased Premises as of the end of such Term (having assumed the Term has been extended for all extension periods provided herein). The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that Tenant has not violated (and will not violate) any of the Covenants.
Appears in 1 contract
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Rental Value is required pursuant to this Lease, such Fair Market Rental Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree on Fair Market Rental Value on the date (an "Applicable Initial Date") which is six (6) calendar months prior to the expiration of the then current Term if Tenant has previously exercised its option pursuant to Paragraph 5(b) to have the Term extended for the third or fourth Renewal Terms. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Rental Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen thirty (1530) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Rental Value based on a written appraisal made by each of them (and given to Landlord by Tenant) as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Rental Value, the amount of such Fair Market Rental Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(ii) If such two surveyors shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection of the third surveyor shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Rental Value within twenty (20) days after the selection of an appraiser by Landlord, then such appraisers shall advise Landlord and Tenant of their respective determination of Fair Rental Market Value and shall select a third appraiser to make the determination of Fair Market Rental Value. The selection of the third appraiser shall be binding and conclusive upon Landlord and Tenant.
(iv) If such two appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Rental Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Rental Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Rental Value shall be the average of the determination of Fair Market Rental Value made by the third surveyor appraiser and the determination of Fair Market Rental Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Rental Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Rental Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, the third surveyor shall be deemed an arbiterState if such State provides for or requires such registration.
(vivii) The Cost Each party shall bear the Costs of its own appraiser and the Costs of the procedure described in this clause 10.1 above third appraiser shall be borne split equally by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Rental Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then until Fair Market Rental Value is determined, Tenant shall continue to pay Basic Rent during the Option Purchase Date succeeding Renewal Term in the same amount which it was obligated under this Lease to pay prior to the commencement of the Renewal Term. When Fair Market Rental Value is determined, the appropriate Basic Rent shall be extended calculated retroactive to the commencement of the Renewal Term and Tenant shall either receive a refund from Landlord (in the case of an overpayment) or shall pay any deficiency to Landlord (in the case of an underpayment).
(c) In determining Fair Market Rental Value, the appraisers shall determine the amount that a willing tenant would pay, and a willing landlord of a comparable building located in a radius of 25 miles of the Leased Premises would accept, at arm's length, to rent a building of comparable size and quality as the Improvements, taking into account: (i) the age, quality, condition (as required by the Lease) of the Improvements; (ii) that the Leased Premises will-be leased as a whole or substantially as a whole to a date no later than ten single user; (10iii) days following a determination of Fair Market Valuelease term equal to the Renewal Term; (iv) an absolute triple net lease; and (v) such other items that professional real estate appraisers customarily consider.
Appears in 1 contract
Sources: Lease Agreement (Corporate Property Associates 16 Global Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to this Agreement, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord Owner and Buyer shall endeavor to agree upon such Fair Market Value within ten (10) days after the Relevant Date (the "Applicable Initial Date"). Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within ten (10) days after the Applicable Initial Date, each of Owner and Buyer shall within fifteen thirty (1530) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant the other in writing of the name, address and qualifications of such surveyor. Within fifteen (15) days following Tenant’s receipt of Landlord’s notice of the surveyor selected by Landlord, Tenant shall select a surveyor and notify Landlord of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord Owner and TenantBuyer.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty fifteen (2015) days after the selection expiration of a surveyor by Tenant the ten (10) day period referred to in clause (ii) above, then such surveyors appraisers shall advise Landlord Owner and Tenant Buyer of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord Owner and TenantBuyer.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty fifteen (2015) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty fifteen (2015) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty fifteen (2015) days after such appointment.
(iv) If a third surveyor is selected, . Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 7(a)(iii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord Owner and TenantBuyer.
(v) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 7(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers, (B) have no right, power or authority to alter or modify the provisions of this LeaseAgreement, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, State if the third surveyor shall be deemed an arbiterState provides for or requires such registration.
(vi) The Cost Costs of the procedure described in this clause 10.1 Paragraph 7(a) above shall be borne equally entirely by Landlord and TenantBuyer.
10.2 If, by virtue of any delay, Fair Market Value is not determined by (b) No delay in the Option Purchase Date, then the Option Purchase Date shall be extended to a date no later than ten (10) days following a determination of Fair Market ValueValue under this Agreement shall have any effect on the Term of the Lease, but any extension of the Term of the Lease pursuant to the terms of the Lease shall be taken into account in the determination of Fair Market Value under this Agreement.
Appears in 1 contract
Sources: Purchase Agreement (Applied Bioscience International Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value or Fair Market Rental Value, as applicable, is required pursuant to any provision of this Lease, such Fair Market Value or Fair Market Rental Value, as applicable, shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within fifteen thirty (1530) days following after the date (the "APPLICABLE INITIAL DATE") on which Landlord receives provides Tenant with notice of Landlord's intention to require Tenant to make an Option Exercise Notice offer to terminate this Lease pursuant to Paragraph 23(a)(iii). Landlord and Tenant shall endeavor to agree on Fair Market Rental Value on the date (also, an "Applicable Initial Date") which is six (6) calendar months prior to the expiration of the first Renewal Term unless Tenant has previously exercised its option pursuant to Paragraph 5(b) not to have the Term automatically extended for the second Renewal Term. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value or Fair Market Rental Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifty (50) days after the Applicable Initial Date select a surveyor an appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value or Fair Market Rental Value based on a written appraisal made by each of them (and given to Landlord by Tenant) as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value or Fair Market Rental Value, the amount of such Fair Market Value or Fair Market Rental Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(ii) If such two surveyors shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection of the third surveyor shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value or Fair Market Rental Value within twenty (20) days after the selection of an appraiser by Landlord, then such appraisers shall advise Landlord and Tenant of their respective determination of Fair Market Value or Fair Market Rental Value and shall select a third appraiser to make the determination of Fair Market Value or Fair Market Rental Value. The selection of the third appraiser shall be binding and conclusive upon Landlord and Tenant.
(iv) If such two appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value or Fair Market Rental Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the Chairman office of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in Detroit, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)Michigan. The determination of Fair Market Value or Fair Market Rental Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value or Fair Market Rental Value shall be the average of the determination of Fair Market Value or Fair Market Rental Value made by the third surveyor appraiser and the determination of Fair Market Value or Fair Market Rental Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value or Fair Market Rental Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers, (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value or Fair Market Rental Value herein set forth in clause 10.3above, and (D) be registered in the Scottish RICSState if the State provides for or requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 above appraiser selected by a party shall be borne such party and if a third appraiser is selected, the Cost of such appraiser shall be shared equally by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to the Leased Premises or the Affected Premises, as applicable, to the date specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made. If, by virtue of any delay, Fair Market Rental Value is not determined by the expiration or termination of the first Renewal Term, then until Fair Market Rental Value is determined, Tenant shall continue to pay Basic Rent during the second Renewal Term in the same amount which it was obligated under this Lease to pay prior to the commencement of the second Renewal Term. When Fair Market Rental Value is determined, the appropriate Basic Rent shall be calculated retroactive to the commencement of the second Renewal Term and Tenant shall pay any deficiency to Landlord.
(c) In determining Fair Market Rental Value, the appraisers shall determine with respect to the Leased Premises the amount that a willing tenant would pay, and a willing landlord would accept, at arm's length, to rent comparable premises in the city/township of Plymouth/Troy, taking into account: (a) the age, quality and condition (as r▇▇▇▇red by this Lease) of the Improvements; (b) that the Leased Premises will be leased as a whole or substantially as a whole to a date no later than single user; (c) a lease term of ten (10) days following years; (d) a determination of Fair Market Valuetriple net lease; and (e) such other items that professional real estate appraisers customarily consider.
Appears in 1 contract
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value or Fair Market Rental Value is required pursuant to any provision of this Lease, such Fair Market Value or Fair Market Rental Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within ten (10) days after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease with respect to an Affected Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to terminate this Lease with respect to the Leased Premises pursuant to Paragraph 23(a)(iii). Landlord and Tenant shall endeavor to agree on Fair Market Rental Value on the date (also, an "Applicable Initial Date") which is six (6) calendar months prior to the expiration of the then current Term unless Tenant has not exercised its option pursuant to Paragraph 5(b) to have the Term extended. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value or Fair Market Rental Value, as the case may be.
(ii) If the parties shall not have signed such agreement within ten (10) days after the Applicable Initial Date, each of Landlord and Tenant shall within fifteen thirty (1530) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant the other in writing of the name, address and qualifications of such surveyor. Within fifteen (15) days following Tenant’s receipt of Landlord’s notice of the surveyor selected by Landlord, Tenant shall select a surveyor and notify Landlord of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value or Fair Market Rental Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date (and given to Landlord by Tenant). If such two surveyors appraisers shall agree upon a Fair Market Value or Fair Market Rental Value, the amount of such Fair Market Value or Fair Market Rental Value as so agreed shall be binding and conclusive.
(iii) If such two appraisers shall be unable to agree upon a Fair Market Value or Fair Market Rental Value within twenty (20) days after the selection of appraisers by Landlord and Tenant, then such appraisers shall advise Landlord and Tenant of their respective determinations of Fair Market Value or Fair Market Rental Value and shall select a third appraiser to make the determination of Fair Market Value or Fair Market Rental Value. The selection of the third appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiv) If such two surveyors shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection of the third surveyor shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two surveyors shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value or Fair Market Rental Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with respect to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value or Fair Market Rental Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value or Fair Market Rental Value shall be the average of the determination of Fair Market Value or Fair Market Rental Value made by the third surveyor appraiser and the determination of Fair Market Value or Fair Market Rental Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value or Fair Market Rental Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers, (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value or Fair Market Rental Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposesState if the State provides for or requires such registration and (E) if the appraisers are selected or appointed for the purpose of determining Fair Market Rental Value, the third surveyor such appraisers shall be deemed an arbiterhave not less than ten years of experience in appraising similar leases.
(vivii) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above with respect to a determination of Fair Market Value shall be borne entirely by Tenant. The Cost of the procedure described in this Paragraph 29(a) above with respect to a determination of Fair Market Rental Value shall be shared equally by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to a the Leased Premises or the Affected Premises, as applicable, to the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made. If, by virtue of any delay, Fair Market Rental Value is not determined by the expiration or termination of the then current Term, then until Fair Market Rental Value is determined, Tenant shall continue to pay Basic Rent during the succeeding Renewal Term in the same amount which it was obligated under this Lease to pay prior to the commencement of the Renewal Term. When Fair Market Rental Value is determined, the appropriate Basic Rent shall be calculated retroactive to the commencement of the Renewal Term and Tenant shall either receive a refund from Landlord (in the case of an overpayment) or shall pay any deficiency to Landlord (in the case of an underpayment).
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (a) the present value of the Rent for the remaining Term, assuming the Term has been extended for all extension periods provided herein (with assumed increases in the CPI (as defined in Exhibit D) to be determined by an investment banker retained by each appraiser) and (b) the present value of the Leased Premises or the applicable Related Premises, as the case may be, as of the end of such Term. The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that Guarantor has not violated (and will not violate) any of the financial covenants set forth in the Guaranty.
(d) In determining Fair Market Rental Value, the appraisers shall determine with respect to each Related Premises the amount that a willing tenant would pay, and a willing landlord of a comparable building located in Austin, Texas, would accept, at arm's length, to rent a building of comparable size and quality as the Improvements, taking into account: (i) the age, quality and condition (as required by the Lease) of the Improvements; (ii) that the Leased Premises will be leased as a whole or substantially as a whole to a single user; (c) a lease term of five (5) years; (d) an absolute triple net lease; and (e) such other items that professional real estate appraisers customarily consider.
Appears in 1 contract
Sources: Lease Agreement (Applied Bioscience International Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant (or Third Party Purchaser with respect to a determination under clause (D) below) shall endeavor to agree upon such Fair Market Value within fifteen thirty (1530) days following after the date (the "APPLICABLE INITIAL DATE"") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Leased Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to terminate this Lease pursuant to Paragraph 23(a)(iii) or (D) Landlord receives an Option Exercise Notice Notice. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifty (50) days after the Applicable Initial Date select a surveyor an appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them (and given to Landlord by Tenant) as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICSState if the State provides for or requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended to a the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (a) the present value of the Rent for the remaining Term, assuming the Term has been extended for all extension periods provided herein (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (b) the present value of the Leased Premises as of the end of such Term (having assumed the Term has been extended for all extension periods provided herein). The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that Tenant has not violated (and will not violate) any of the Covenants.
Appears in 1 contract
Sources: Lease Agreement (Atrium Corp)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the "APPLICABLE INITIAL DATE") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Leased Premises under Paragraph 21(c), (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c) or (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to purchase the Leased Premises pursuant to Paragraph 23(a)(iii) or the Abandonment Premises under Paragraph 37(g). Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within twenty (20) days after the Applicable Initial Date, Tenant shall within fifteen forty (1540) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen ten (1510) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date (and given to Landlord by Tenant). If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty fifteen (2015) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty fifteen (2015) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty fifteen (2015) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in Chicago, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)Illinois. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty fifteen (2015) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, State if the third surveyor shall be deemed an arbiterState provides for or requires such registration.
(vivii) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to a the Leased Premises or the Affected Premises, as applicable, to the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (i) the present value of the Rent for the remaining Term (assuming the Term has been extended only for any exercised extension periods) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (ii) the present value of the Leased Premises as of the end of such Term (having assumed the Term has been extended for all extension periods provided herein). The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that Tenant has not violated (and will not violate) any of the Covenants.
Appears in 1 contract
Sources: Lease Agreement (Perry-Judds Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the "Applicable Initial Date"") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Leased Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c) or (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to terminate this Lease pursuant to Paragraph 23(a)(iii). Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them (and given by Landlord and Tenant to each other) as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICSState if the State provides for or requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally entirely by Landlord and Tenant.
10.2 (b) If, by virtue of any delaydelay (not caused solely by the acts or omissions of Landlord), Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended to a the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (a) the Present Value of the Rent for the remaining Term, assuming the Term has been extended for all extension periods provided herein (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (b) the Present Value of the Leased Premises as of the end of such Term (having assumed the Term has been extended for all extension periods provided herein). The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that Tenant has not violated (and will not violate) any of the Covenants.
Appears in 1 contract
Sources: Lease Agreement (PSC Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the "Fair Market Value Date") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Leased Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Tenant provides Landlord with an Intended Assignment Notice pursuant to Paragraph 21(a)(iii), (D) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to purchase the Leased Premises pursuant to Paragraph 23(a)(iii), or (E) Tenant provides Landlord with notice pursuant to Paragraph 38(a) of its intention to exercise its option to purchase the Leased Premises. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Fair Market Value Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Fair Market Value Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date (and given to Landlord by Tenant). If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenantconclusive.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with respect to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, State if the third surveyor shall be deemed an arbiterState provides for or requires such registration.
(vivii) The Cost of Of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally entirely by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to a the Leased Premises to the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market ValueValue is being made.
Appears in 1 contract
Sources: Lease Agreement (Del Monte Foods Co)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value or Fair Market Rental Value is required pursuant to any provision of this Lease, such Fair Market Value or Fair Market Rental Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within fifteen thirty (1530) days following after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Leased Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to terminate this Lease pursuant to Paragraph 23(a)(iii), (D) Tenant provides Landlord with an Intended Assignment Offer under Paragraph 21(d), (E) the date on which Landlord receives accepts Tenant's offer pursuant to Paragraph 33(c), (F) the date on which Landlord accepts the Third Party Purchaser's offer pursuant to Paragraph 35(c) and (G) the date on which Landlord accepts Tenant's offer pursuant to Paragraph 38(d). Landlord and Tenant shall endeavor to agree on Fair Market Rental Value on the date (also, an Option Exercise Notice "Applicable Initial Date") which is six (6) calendar months prior to the expiration of the then current Term unless Tenant has previously exercised its option pursuant to Paragraph 5(b) not to have the Term automatically extended. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value or Fair Market Rental Value, as the case may be. 58
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifty (50) days after the Applicable Initial Date select a surveyor an appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s receipt of Landlord’s notice of the surveyor selected by Landlordthereafter, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value or Fair Market Rental Value, as the case may be, based on a written an appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value or Fair Market Rental Value, as the case may be, the amount of such Fair Market Value or Fair Market Rental Value, as the case may be, as so agreed shall be binding and conclusive.
(iii) If such two appraisers shall be unable to agree upon a Fair Market Value or Fair Market Rental Value, as the case may be, within twenty (20) days after the selection of an appraiser by Landlord, then such appraisers shall advise Landlord and Tenant of their respective determination of Fair Market Value or Fair Market Rental Value, as the case may be, and shall select a third appraiser to make the determination of Fair Market Value or Fair Market Rental Value, as the case may be, which determination as to the selection of the third appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiv) If such two surveyors shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection of the third surveyor shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two surveyors shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value or Fair Market Rental Value, as the case may be, within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with notice to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in San Francisco, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)California. The determination of Fair Market Value or Fair Market Rental Value, as the case may be, made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor is selected, Fair Market Value or Fair Market Rental Value, as the case may be, shall be the average of the determination of Fair Market Value or Fair Market Rental Value, as the case may be, made by the third surveyor appraiser and the determination of Fair Market Value or Fair Market Rental Value, as the case may be, made by 59 the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(iii) hereof) whose determination of Fair Market Value or Fair Market Rental Value, as the case may be, is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of methodology for determining Fair Market Value set forth in clause 10.3Paragraph 29(c) or the methodology for determining Fair Market Rental Value as set forth in Paragraph 29(d), and (D) be registered in the Scottish RICSState if the State provides for or requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Landlord and Tenant, except that the Cost with respect to the appraisals performed under Paragraphs 21, 23, 33 or 38 shall be paid by Tenant and the Cost with respect to the appraisals performed under Paragraph 35 shall be paid by the Third Party Purchaser.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended to a the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made. If, by virtue of any delay, Fair Market Rental Value is not determined by the expiration or termination of the then current Term, then until Fair Market Rental Value is determined, Tenant shall continue to pay Basic Rent during the succeeding Renewal Term in the same amount which it was obligated under this Lease to pay prior to the commencement of the Renewal Term. When Fair Market Rental Value is determined, the appropriate Basic Rent shall be calculated retroactive to the commencement of the Renewal Term and Tenant shall either receive a refund from Landlord (in the case of an overpayment) or shall pay any deficiency to Landlord (in the case of an underpayment).
(c) Fair Market Value shall be determined as follows: The appraisers shall add (i) the present value of the Rent for the remaining Term, (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker) based on the creditworthiness of Tenant and (ii) the present value of the Fair Market Value of the Leased Premises as of the end of the then current Term (without necessarily making any assumption as to whether the Tenant will or will not exercise any remaining options), using a yield rate required by investors for property having similar characteristics, without consideration given to Tenant's credit rating or creditworthiness. In determining the value under (ii), 60 the appraisers shall, insofar as possible, consider properties having similar characteristics and in reasonable proximity to the Leased Premises, but the appraisers shall not be precluded from considering properties that do not have "clean" rooms, properties that are (or are not) located in Hayward, California or properties having a different use than the Leased Premises. The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that Tenant has not violated (and will not violate) any of the Covenants.
(d) In determining Fair Market Rental Value, the appraisers shall determine the amount that a willing tenant would pay, and a willing landlord of a building having similar characteristics and in reasonable proximity to the Leased Premises would accept, at arm's length, taking into account:
(a) the age, quality, and condition of the Improvements; (b) that the Leased Premises may be leased as a whole or substantially as a whole to a single user or leased to multiple users; (c) a lease term of five (5) years; (d) an absolute triple net lease; and (e) such other items that professional real estate appraisers customarily consider. In determining Fair Market Rental Value, the appraisers shall, insofar as possible, consider properties having similar characteristics and in reasonable proximity to the Leased Premises, but the appraisers shall not be precluded from considering properties that do not have "clean" rooms, properties that are (or are not) located in Hayward, California or properties having a different use than the Leased Premises.
Appears in 1 contract
Sources: Lease Agreement (Corporate Property Associates 12 Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Rental Value is required pursuant to any provision of this Lease, such Fair Market Rental Value shall be determined in accordance with the following fallowing procedure:
(i) Landlord and Tenant shall endeavor to agree on Fair Market Rental Value on the date (the "Applicable Initial Date") which is six (6) calendar months prior to the expiration of the then current Term unless Tenant has previously exercised its option pursuant to Paragraph 5(b) not to have the Term automatically extended. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Rental Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s notice of the surveyor selected by Landlordsuch notice, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such If Landlord shall fail to select an appraiser and notify Tenant as aforesaid within said twenty-day period, then provided that such failure shall continue for five (5) additional Business Days after notice thereof from Tenant to Landlord, the determination of Tenant's appraiser shall govern. Otherwise, such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Rental Value based on a written appraisal made by each of them (and given to both parties) as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Rental Value, the amount of such Fair Market Rental Value as so agreed shall be binding and conclusive upon Landlord add Tenant.
(iii) If such two appraisers shall be unable to agree upon Fair Market Rental Value within twenty (20) days after the selection of an appraiser by Landlord, then such appraisers shall advise Landlord and Tenant of their respective determinations of Fair Market Rental Value and shall select a third appraiser to make the determination of Fair Market Rental Value. The selection of the third appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiv) If such two surveyors shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection of the third surveyor shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two surveyors shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days Business Days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Rental Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in -38- New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor Rental Va▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇praiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Rental Value shall be the average of the determination of Fair Market Rental Value made by the third surveyor appraiser and the determination of Fair Market Rental Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Rental Value is nearest nearer to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Rental Value set forth in clause 10.3herein, and (D) be registered in the Scottish RICSstate where the Leased Premises or applicable Related Premises are located if the state requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a)(i) clauses (A) through (C) above shall be borne shared equally by between Landlord and Tenant and the cost of the procedure described in this Paragraph 29(a)(i)(D) shall be paid by Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Rental Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then until Fair Market Rental Value is determined, Tenant shall continue to pay Basic Rent during the Option Purchase Date succeeding Renewal Term in the same amount which it was obligated under this Lease to pay prior to the commencement of the Renewal Term. When Fair Market Rental Value is determined, the appropriate Basic Rent shall be extended calculated retroactive to the commencement of the Renewal Term and Tenant shall either receive a refund from Landlord (in the case of an overpayment) or shall pay any deficiency to Landlord (in the case of an underpayment).
(c) In determining Fair Market Rental Value, the appraisers shall determine with respect to the Leased Premises the amount that a willing tenant would pay, and a willing landlord of a comparable building located in a radius of fifty (50) miles of the Leased Premises would accept, at arm's length, to rent a building of comparable size and quality as the Improvements, taking into account: (i) the age, quality and condition (as required by the Lease) of the Improvements and that the Improvements are being leased on an "as-is" basis without any improvement allowance or free rent; (ii) that the Leased Premises will be leased as a whole or substantially as a whole to a date no later than single user for the uses permitted under this Lease, (iii) a lease term of ten (10) days following a determination of Fair Market Valueyears, with annual CPI-based increases; (iv) an absolute triple net lease; and (v) such other items that professional real estate appraisers customarily consider.
Appears in 1 contract
Sources: Lease Agreement (Corporate Property Associates 16 Global Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the “Applicable Initial Date”) on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Leased Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c) or (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to purchase the Leased Premises pursuant to Paragraph 23(a)(iii). Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date (and given to Landlord by Tenant). If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with respect to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, State where the third surveyor shall be deemed an arbiterapplicable Leased Premises is located if such State provides for or requires such registration.
(vivii) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to a the Leased Premises or the Affected Premises, as applicable, to the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (a) the present value of the Rent with respect to the Leased Premises or Affected Premises, as applicable, for the remaining Term, assuming the Term has been extended for all extension periods provided herein (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (b) the present value of the Leased Premises or the Affected Premises, as applicable, as of the end of such Term (having assumed the Term has been extended for all extension periods provided herein). The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease.
Appears in 1 contract
Sources: Lease Agreement (Greenville Tube CO)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Affected Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to purchase the Leased Premises pursuant to Paragraph 23(a)(iii), (D) Tenant provides to Landlord an Intended Assignment Offer or (E) Tenant provides to Landlord an Abandonment Notice. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen forty (1540) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen ten (1510) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date (and given to Landlord by Tenant). If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenantconclusive.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with respect to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value set forth in clause 10.3Paragraph 2 of this Lease, and (D) be registered in the Scottish RICS. For all purposes, State if the third surveyor shall be deemed an arbiterState provides for or requires such registration.
(vivii) The If the determination of Fair Market Value is required under Paragraph 23(a)(iii), the Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne entirely by Tenant; in all other instances the Cost shall be split equally by between Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to a the Leased Premises or either Related Premises, as applicable, to the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (a) the present value of the Rent for the remaining Term (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (b) the present value of the Leased Premises as of the end of such Term. The appraisers shall further assume that no default then exists under the Lease and that Tenant has complied (and will comply) with all provisions of the Lease.
Appears in 1 contract
Sources: Lease Agreement (Corporate Property Associates 12 Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value, shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the “Applicable Initial Date””) on which (A) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), or (B) Landlord provides Tenant with notice of Landlord’s intention to require Tenant to make an offer to terminate this Lease pursuant to Paragraph 23(a)(iii). Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following TenantLandlord’s receipt of LandlordTenant’s notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them (and given to Landlord by Tenant) as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vb) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICSState if the State provides for or requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Landlord and Tenant.
10.2 (c) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended to a the date no later than ten (10) days following a specified for termination in the particular provision of this Lease with respect to the Leased Premises, as applicable, pursuant to which the determination of Fair Market Value is being made.
(d) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (a) the present value of the Rent for the remaining Term (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and Guarantor and (b) the present value of the Leased Premises as of the end of such Term (having assumed the Term has been extended for all extension periods provided herein). The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that no Event of Default exists under the Guaranty.
Appears in 1 contract
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value or Fair Market Rental Value is required pursuant to any provision of this Lease, such Fair Market Value or Fair Market Rental Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value or Fair Market Rental Value within thirty (30) days after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Affected Premises pursuant to Paragraph 18, or (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c). Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value or Fair Market Rental Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value or Fair Market Rental Value based on a written appraisal made by each of them as of the date of Relevant Date (and given by each party to the Option Exercise Noticeother). If such two surveyors appraisers shall agree upon a Fair Market Value or Fair Market Rental Value, the amount of such Fair Market Value or Fair Market Rental Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(ii) If such two surveyors shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection of the third surveyor shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value or Fair Market Rental Value within twenty (20) days after the selection of an appraiser by Landlord, then such appraisers shall advise Landlord and Tenant of their respective determination of Fair Market Value or Fair Market Rental Value and shall select a third appraiser to make the determination of Fair Market Value or Fair Market Rental Value. The selection of the third appraiser shall be binding and conclusive upon Landlord and Tenant.
(iv) If such two appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value or Fair Market Rental Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with respect to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value or Fair Market Rental Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value or Fair Market Rental Value shall be the average of the determination of Fair Market Value or Fair Market Rental Value made by the third surveyor appraiser and the determination of Fair Market Value or Fair Market Rental Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value or Fair Market Rental Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value or Fair Market Rental Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, State if the third surveyor shall be deemed an arbiterState provides for or requires such registration.
(vivii) The Each of Landlord and Tenant shall pay the Cost of its appraiser, and, if a third appraiser is selected, the procedure described in this clause 10.1 above parties shall be borne share equally by Landlord and Tenantthe cost of the third appraiser.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to a the Leased Premises or the Affected Premises, as applicable, to the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made. If, by virtue of any delay, Fair Market Rental Value is not determined by the expiration or termination of the then current Term, then until Fair Market Rental Value is determined, Tenant shall continue to pay Basic Rent during the succeeding Renewal Term in the same amount which it was obligated under this Lease to pay prior to the commencement of the Renewal Term. When Fair Market Rental Value is determined, the appropriate Basic Rent shall be calculated retroactive to the commencement of the Renewal Term and Tenant shall either receive a refund from Landlord (in the case of an overpayment) or shall pay any deficiency to Landlord (in the case of an underpayment).
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (a) the present value of the Rent for the remaining Term (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (b) the present value of the Leased Premises as of the end of such Term. The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease.
Appears in 1 contract
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Affected Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to purchase the Leased Premises pursuant to Paragraph 23(a)(iii) or (D) Landlord receives Tenant's Option Notice. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value. 34
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date (and given to Landlord by Tenant). If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with respect to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, State if the third surveyor shall be deemed an arbiterState provides for or requires such registration.
(vivii) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally entirely by Landlord and Tenant.
10.2 If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Date, then the Option Purchase Date shall be extended to a date no later than ten (10) days following a determination of Fair Market Value.
Appears in 1 contract
Sources: Lease Agreement (Corporate Property Associates 12 Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant (or Third Party Purchaser with respect to a determination under clause (D) below) shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the "Applicable ---------- Initial Date") on which (A) Tenant provides Landlord with notice of its ------------ intention to terminate this Lease and purchase the Leased Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to terminate this Lease pursuant to Paragraph 23(a)(iii), or (D) Landlord elects to convey to Tenant the Excess Land under Paragraph 36(a)(iii). Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Landlord and Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date each select an Option Exercise Notice select a surveyor appraiser and notify Tenant the other party in writing of the name, address and qualifications of such surveyor. Within fifteen (15) days following Tenant’s receipt of Landlord’s notice of the surveyor selected by Landlord, Tenant shall select a surveyor and notify Landlord of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them (and given to Landlord by Tenant) as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor by Tenant both appraisers, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICSState if the State provides for or requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally entirely by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended to a the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (a) the present value of the Rent for the remaining Term, provided, however, that in the event Fair Market Value is being determined in accordance with Paragraph 23 the Term shall be assumed to have been extended for all extension periods provided herein, (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (b) the present value of the Leased Premises as of the end of such Term, provided, however, that in the event Fair Market Value is being determined in accordance with Paragraph 23 the Term shall be assumed to have been extended for all extension periods provided herein. The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that Tenant has not violated (and will not violate) any of the Covenants.
Appears in 1 contract
Determination of Value. 10.1 Fair Market Value (a) Whenever a determination of FMRV is required pursuant to any provision of this Lease, same shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon the FMRV not later than six (6) months prior to the Expiration Date of the current Term and in any event shall commence such process not later than sixty (60) days after the date (the “Applicable Initial Date”) on which Tenant provides Landlord with notice of its intention to extend the Term of this Lease, in whole or in part, pursuant to Paragraph 5(b) hereof, and upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such FMRV.
(ii) If the parties shall not have signed such agreement within sixty (60) days after the Applicable Initial Date, Tenant shall within fifteen thirty (1530) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor arbitrator and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorarbitrator. Within fifteen twenty (1520) days following TenantLandlord’s receipt of LandlordTenant’s notice of the surveyor arbitrator selected by LandlordTenant, Tenant Landlord shall select a surveyor an arbitrator and notify Landlord Tenant of the name, address and qualifications of such surveyorarbitrator. Such two surveyors arbitrators shall endeavour endeavor to agree upon Fair Market Value FMRV based on a written appraisal determination made by each of them as of the date of the Option Exercise Notice(and given to Landlord by Tenant). If such two surveyors arbitrators shall agree upon a Fair Market ValueFMRV, the amount of such Fair Market Value FMRV as so agreed shall be binding and conclusive upon Landlord and Tenant.
(ii) If such two surveyors shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection of the third surveyor shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two surveyors arbitrators shall be unable to agree upon a FMRV within thirty (30) days after the selection of an arbitrator by Landlord, then such arbitrators shall advise Landlord and Tenant of their respective determination of FMRV and thereafter shall select a third arbitrator to make the determination of FMRV and shall provide such third arbitrator with written notice of their respective determinations of FMRV. In making such determination, the third arbitrator’s only option shall be to select either the FMRV as determined by Tenant’s arbitrator or the FMRV as determined by Landlord’s arbitrator which such third arbitrator determines to be closest to his determination of FMRV for the Leased Premises or portion thereof that is the subject of the applicable Renewal Term, without modification, and, thereafter, to notify Landlord and Tenant of such arbitrator’s selection. The selection of the third arbitrator and the determination of FMRV by such third arbitrator shall be binding and conclusive upon Landlord and Tenant, and either party may seek to enter such third arbitrator’s determination of FMRV as a judgment in the Supreme Court, New York County.
(iv) If such two arbitrators shall be unable to agree upon the designation of a third surveyor arbitrator within ten twenty (1020) days after the expiration of the twenty thirty (2030) day period referred to in clause (iiiii) above, or if such third surveyor arbitrator does not make a determination of Fair Market Value FMRV within twenty forty-five (2045) days after his selection, then such third surveyor arbitrator or a substituted third surveyorarbitrator, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shall, for any reason, not be available or shall be unable to make such appointment at the time Real Estate Board of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value FMRV made by the third surveyor arbitrator appointed pursuant hereto shall be made within twenty forty-five (2045) days after such appointment.
(iv) If a third surveyor is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor and the determination of Fair Market Value made by the surveyor (selected pursuant to clause 10.1(i) hereof) whose determination of Fair Market Value is nearest to that of the third surveyor. Such average shall be binding and conclusive upon Landlord and Tenant.
(v) All appraisers Each arbitrator selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors (B) have no right, power or authority to alter or modify the provisions of this Lease, (CB) utilize the definition of Fair Market Value FMRV set forth in clause 10.3above, and (DC) be at least a managing director, vice president or principal of a nationally or regionally recognized real estate brokerage firm and have not less than ten (10) years experience in Manhattan as a licensed broker or appraiser with substantial experience with respect to the leasing of significant blocks of space in “class A” high-rise office buildings in Manhattan similar to the Building, and (E) be currently registered or licensed as a real estate broker in the Scottish RICS. For all purposes, the third surveyor shall be deemed an arbiterNew York State.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally paid as follows: Each party shall pay its own costs related to its arbitrator and determination of FMRV and the costs of the third arbitrator shall be shared on a 50/50 basis by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value FMRV is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then until FMRV is determined, Tenant shall continue to pay Basic Rent during the Option Purchase Date succeeding Renewal Term in the same amount which it was obligated under this Lease to pay prior to the commencement of the Renewal Term. When FMRV is determined, the appropriate Basic Rent shall be extended calculated retroactive to the commencement of the Renewal Term and Tenant shall either receive a date refund from Landlord (in the case of an overpayment) or shall pay any deficiency to Landlord (in the case of an underpayment).
(c) In determining FMRV, the arbitrators shall determine the amount that a willing tenant would pay, and a willing landlord of a comparable building located in midtown Manhattan would accept, at arm’s length, to rent first class office space of comparable size and quality as the Improvements, taking into account all relevant factors. The arbitrators shall further assume that no later than ten default then exists under the Lease, that Tenant has complied (10and will comply) days following a determination with all provisions of Fair Market Valuethe Lease, and that no Event of Default exists under the Guaranty.
Appears in 1 contract
Sources: Lease Agreement (New York Times Co)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Affected Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), or (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to purchase the Leased Premises pursuant to Paragraph 23(a)(iii) Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications qualification of such surveyorappraiser. Such two surveyors appraiser shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date (and given to Landlord by Tenant). If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as an applicable, shall, at the request of either party heretohereto (with respect to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29 (a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, State where the third surveyor shall be deemed an arbiterapplicable Related Premises is located if such State provides for or requires such registration.
(vivii) The Cost cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne paid as follows: Each party shall pay the cost of its own appraiser and the cost of the third, appraiser, if required, shall be split equally by between Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to a the Leased Premises or the Affected Premises, as applicable, to the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (i) the present value of the Rent for the remaining Term, assuming the Term has been extended for all extension periods provided herein (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (ii) the present value of the Leased Premises or applicable Related Premises as of the end such Term (having assumed the Term has been extended for all extension periods provided herein). The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease.
Appears in 1 contract
Sources: Lease Agreement (Corporate Property Associates 16 Global Inc)
Determination of Value. 10.1 Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord Upon delivery of notice by Buyer to Unocal of a Material Environmental Deficiency, Buyer and Unocal shall within fifteen (15) days following the date on which Landlord receives an Option Exercise Notice select a surveyor meet and notify Tenant in writing of the name, address and qualifications of such surveyor. Within fifteen (15) days following Tenant’s receipt of Landlord’s notice of the surveyor selected by Landlord, Tenant shall select a surveyor and notify Landlord of the name, address and qualifications of such surveyor. Such two surveyors shall endeavour use their best efforts to agree upon Fair Market Value on whether such a Material Environmental Deficiency exists. The value of Environmental Liabilities shall be based on a written appraisal made by each of them as of the date of the Option Exercise Notice. If such two surveyors shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenantestimated Remediation Cost.
(ii) If such two surveyors If, during the Due Diligence Period, Buyer determines there is a Material Environmental Deficiency and desires to terminate this Agreement, it shall immediately so notify Unocal. Unocal shall respond on the earlier of the Closing Date or seven (7) days from the date of notice whether it concurs in Buyer's determination that the estimated Remediation Cost of the applicable Environmental Liabilities is sufficient to constitute a Material Environmental Deficiency. In the event Unocal concurs in Buyer's determination, the termination of this Agreement shall be unable to agree upon treated as a Fair Market Value within twenty (20) days after the selection of a surveyor termination by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection mutual consent of the third surveyor shall be binding and conclusive upon Landlord and TenantParties.
(iii) If such two surveyors shall be unable to agree upon Unocal timely notifies Buyer that it does not concur with the designation of a third surveyor within ten (10) days after the expiration Buyer's determination of the twenty (20) day period referred estimated Remediation Costs, Buyer may still elect to in clause (ii) above, or if such third surveyor does not make terminate this Agreement and request a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor or a substituted third surveyor, as applicable, shall, at the request value of either party hereto, be appointed the Environmental Liabilities by the Chairman following procedure: the Parties will submit the issue of the Scottish RIGSexistence of a Material Environmental Deficiency to arbitration in accordance with the arbitration procedures set forth in Exhibit "B." If the arbitrators determine that a Material Environmental Deficiency does not exist, Buyer will pay the arbitration costs. If the said Chairman shallarbitrators find that a Material Environmental Deficiency does exist, for any reason, Unocal will pay the arbitration costs. If Buyer does not be available or shall be unable elect to make such appointment at terminate this Agreement prior to the time commencement of the application thereforarbitration in connection with this Section, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman Buyer shall be deemed to include have waived its right to terminate this Agreement under this Section unless and until the arbitrators determined that a reference Material Environmental Deficiency exists, and if such arbitrators determine that no Material Environmental Deficiency exists, then Buyer shall pay all arbitration costs and proceed to such senior office holder or Closing, subject to the other officer). The determination terms and conditions of Fair Market Value made by the third surveyor appointed pursuant hereto shall be made within twenty (20) days after such appointmentthis Agreement.
(iv) If a third surveyor is selected, Fair Market Value Any and all disagreements between Buyer and Unocal regarding the value of Environmental Liabilities shall be submitted to arbitration in accordance with the average of the determination of Fair Market Value made by the third surveyor and the determination of Fair Market Value made by the surveyor (selected pursuant to clause 10.1(i) hereof) whose determination of Fair Market Value is nearest to that of the third surveyor. Such average shall be binding and conclusive upon Landlord and Tenant.
(v) All appraisers selected or appointed pursuant to this clause 10.1 shall (A) be independent qualified Scottish RICS surveyors (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value arbitration procedures set forth in clause 10.3, and (D) be registered in the Scottish RICS. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 above shall be borne equally by Landlord and Tenant.
10.2 If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Date, then the Option Purchase Date shall be extended to a date no later than ten (10) days following a determination of Fair Market Value.Exhibit "B."
Appears in 1 contract
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within fifteen thirty (1530) days following after the date (the “Applicable Initial Date”) on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Affected Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Landlord provides Tenant with notice of Landlord’s intention to require Tenant to make an offer to purchase the Leased Premises pursuant to Paragraph 23(a)(iii) or (D) Landlord receives an Option Exercise Notice Notice. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifty (50) days after the Applicable Initial Date select a surveyor an appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following TenantLandlord’s receipt of LandlordTenant’s notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date (and given to Landlord by Tenant). If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with respect to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, State if the third surveyor shall be deemed an arbiterState provides for or requires such registration.
(vivii) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally paid by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to a the Leased Premises or the Affected Premises, as applicable, to the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (a) the present value the Rent of the remaining Term, assuming the Term including any exercised Renewal Term (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and Guarantor and (b) the present value of the Leased Premises, Sale Premises or Affected Premises, as applicable, as of the end of such Term including any exercised Renewal Term. The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that Guarantor has complied (and will comply) with all of the provisions of the Guaranty.
Appears in 1 contract
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Leased Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to terminate this Lease pursuant to Paragraph 23(a)(iii) or (D) Tenant provides Landlord with notice of Tenant's exercise of its option to purchase the Leased Premises pursuant to Paragraph 35. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them as of the date of the Option Exercise Notice. If such two surveyors shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.written
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3forth, and (D) be registered in the Scottish RICSState if the State provides for or requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally entirely by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended to a the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the -44- 47 appraisers shall add (a) the present value of the Rent for the remaining Term, and, if applicable, assuming the Term has been extended for all extension periods provided herein (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (b) the present value of the Leased Premises as of the end of such Term. The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that Tenant has not violated (and will not violate) any of the Covenants.
Appears in 1 contract
Sources: Lease Agreement (Corporate Property Associates 12 Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to Paragraph 18, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the “Applicable Initial Date”) on which Tenant delivers a Termination Notice to Landlord pursuant to Paragraph 18. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within twenty (20) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen (15) days following TenantLandlord’s receipt of LandlordTenant’s notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date (and given to Landlord by Tenant). If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty fifteen (2015) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty fifteen (2015) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with respect to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty fifteen (2015) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 37(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 37(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, State where the third surveyor shall be deemed an arbiterLeased Premises is located if such State provides for or requires such registration.
(vivii) The Cost Costs of the procedure described in this clause 10.1 Paragraph 37(a) above shall be borne equally by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to a the Leased Premises, to the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (i) the present value of the Rent for the remaining current Term (including any previously exercised Renewal Term) (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (ii) the present value of the Leased Premises as of the end of the current Term (including any previously exercised Renewal Term). The appraisers shall further assume that no default then exists under the Lease, and that Tenant has complied (and will comply) with all provisions of the Lease.
Appears in 1 contract
Sources: Lease Agreement (Banctec Inc)
Determination of Value. 10.1 Fair Market Value (a) Whenever a determination of FMRV is required pursuant to any provision of this Lease, same shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon the FMRV not later than six (6) months prior to the Expiration Date of the current Term and in any event shall commence such process not later than sixty (60) days after the date (the "Applicable Initial Date") on which Tenant provides Landlord with notice of its intention to extend the Term of this Lease, in whole or in part, pursuant to Paragraph 5(b) hereof, and upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such FMRV.
(ii) If the parties shall not have signed such agreement within sixty (60) days after the Applicable Initial Date, Tenant shall within fifteen thirty (1530) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor arbitrator and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorarbitrator. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor arbitrator selected by LandlordTenant, Tenant Landlord shall select a surveyor an arbitrator and notify Landlord Tenant of the name, address and qualifications of such surveyorarbitrator. Such two surveyors arbitrators shall endeavour endeavor to agree upon Fair Market Value FMRV based on a written appraisal determination made by each of them as of the date of the Option Exercise Notice(and given to Landlord by Tenant). If such two surveyors arbitrators shall agree upon a Fair Market ValueFMRV, the amount of such Fair Market Value FMRV as so agreed shall be binding and conclusive upon Landlord and Tenant.
(ii) If such two surveyors shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection of the third surveyor shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two surveyors arbitrators shall be unable to agree upon a FMRV within thirty (30) days after the selection of an arbitrator by Landlord, then such arbitrators shall advise Landlord and Tenant of their respective determination of FMRV and thereafter shall select a third arbitrator to make the determination of FMRV and shall provide such third arbitrator with written notice of their respective determinations of FMRV. In making such determination, the third arbitrator's only option shall be to select either the FMRV as determined by Tenant's arbitrator or the FMRV as determined by Landlord's arbitrator which such third arbitrator determines to be closest to his determination of FMRV for the Leased Premises or portion thereof that is the subject of the applicable Renewal Term, without modification, and, thereafter, to notify Landlord and Tenant of such arbitrator's selection. The selection of the third arbitrator and the determination of FMRV by such third arbitrator shall be binding and conclusive upon Landlord and Tenant, and either party may seek to enter such third arbitrator's determination of FMRV as a judgment in the Supreme Court, New York County.
(iv) If such two arbitrators shall be unable to agree upon the designation of a third surveyor arbitrator within ten twenty (1020) days after the expiration of the twenty thirty (2030) day period referred to in clause (iiiii) above, or if such third surveyor arbitrator does not make a determination of Fair Market Value FMRV within twenty forty-five (2045) days after his selection, then such third surveyor arbitrator or a substituted third surveyorarbitrator, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shall, for any reason, not be available or shall be unable to make such appointment at the time Real Estate Board of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value FMRV made by the third surveyor arbitrator appointed pursuant hereto shall be made within twenty forty-five (2045) days after such appointment.
(iv) If a third surveyor is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor and the determination of Fair Market Value made by the surveyor (selected pursuant to clause 10.1(i) hereof) whose determination of Fair Market Value is nearest to that of the third surveyor. Such average shall be binding and conclusive upon Landlord and Tenant.
(v) All appraisers Each arbitrator selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors (B) have no right, power or authority to alter or modify the provisions of this Lease, (CB) utilize the definition of Fair Market Value FMRV set forth in clause 10.3above, and (DC) be at least a managing director, vice president or principal of a nationally or regionally recognized real estate brokerage firm and have not less than ten (10) years experience in Manhattan as a licensed broker or appraiser with substantial experience with respect to the leasing of significant blocks of space in "class A" high-rise office buildings in Manhattan similar to the Building, and (E) be currently registered or licensed as a real estate broker in the Scottish RICS. For all purposes, the third surveyor shall be deemed an arbiterNew York State.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally paid as follows: Each party shall pay its own costs related to its arbitrator and determination of FMRV and the costs of the third arbitrator shall be shared on a 50/50 basis by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value FMRV is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then until FMRV is determined, Tenant shall continue to pay Basic Rent during the Option Purchase Date succeeding Renewal Term in the same amount which it was obligated under this Lease to pay prior to the commencement of the Renewal Term. When FMRV is determined, the appropriate Basic Rent shall be extended calculated retroactive to the commencement of the Renewal Term and Tenant shall either receive a date refund from Landlord (in the case of an overpayment) or shall pay any deficiency to Landlord (in the case of an underpayment).
(c) In determining FMRV, the arbitrators shall determine the amount that a willing tenant would pay, and a willing landlord of a comparable building located in midtown Manhattan would accept, at arm's length, to rent first class office space of comparable size and quality as the Improvements, taking into account all relevant factors. The arbitrators shall further assume that no later than ten default then exists under the Lease, that Tenant has complied (10and will comply) days following a determination with all provisions of Fair Market Valuethe Lease, and that no Event of Default exists under the Guaranty.
Appears in 1 contract
Sources: Lease Agreement (Corporate Property Associates 17 - Global INC)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value or Fair Market Rental Value is required pursuant to any provision of this Lease, such Fair Market Value or Fair Market Rental Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within fifteen thirty (1530) days following after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Leased Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to terminate this Lease pursuant to Paragraph 23(a)(iii), (D) Tenant provides Landlord with an Intended Transaction Offer under Paragraph 21(a)(iii), (E) the date on which Landlord receives accepts Tenant's offer pursuant to Paragraph 33(c), (F) the date on which Landlord accepts the Third Party Purchaser's offer pursuant to the third paragraph of Paragraph 35(a) and (G) the date on which Landlord accepts Tenant's offer pursuant to Paragraph 38(c). Landlord and Tenant shall endeavor to agree on Fair Market Rental Value on the date (also, an Option Exercise Notice "Applicable Initial Date") which is six (6) calendar months prior to the expiration of the then current Term unless Tenant has previously exercised its option pursuant to Paragraph 5(b) not to have the Term automatically extended. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value or Fair Market Rental Value, as the case may be.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifty (50) days after the Applicable Initial Date select a surveyor an appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s receipt of Landlord’s notice of the surveyor selected by Landlordthereafter, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value or Fair Market Rental Value, as the case may be, based on a written an appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value or Fair Market Rental Value, as the case may be, the amount of such Fair Market Value or Fair Market Rental Value, as the case may be, as so agreed shall be binding and conclusive.
(iii) If such two appraisers shall be unable to agree upon a Fair Market Value or Fair Market Rental Value, as the case may be, within twenty (20) days after the selection of an appraiser by Landlord, then such appraisers shall advise Landlord and Tenant of their respective determination of Fair Market Value or Fair Market Rental Value, as the case may be, and shall select a third appraiser to make the determination of Fair Market Value or Fair Market Rental Value, as the case may be, which determination as to the selection of the third appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiv) If such two surveyors shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection of the third surveyor shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two surveyors shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value or Fair Market Rental Value, as the case may be, within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with notice to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in San Francisco, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)California. The determination of Fair Market Value or Fair Market Rental Value, as the case may be, made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor is selected, Fair Market Value or Fair Market Rental Value, as the case may be, shall be the average of the determination of Fair Market Value or Fair Market Rental Value, as the case may be, made by the third surveyor appraiser and the determination of Fair Market Value or Fair Market Rental Value, as the case may be, made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(iii) hereof) whose determination of Fair Market Value or Fair Market Rental Value, as the case may be, is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value set forth in clause 10.3Paragraph 2 or the definition of Fair Market Rental Value as set forth below, and (D) be registered in the Scottish RICSState if the State provides for or requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Landlord and Tenant, except that the Cost with respect to the appraisals performed under Paragraphs 21, 23, 33 or 38 shall be paid by Tenant and the Cost with respect to the appraisals performed under Paragraph 35 shall be paid by the Third Party Purchaser.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended to a the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made. If, by virtue of any delay, Fair Market Rental Value is not determined by the expiration or termination of the then current Term, then until Fair Market Rental Value is determined, Tenant shall continue to pay Basic Rent during the succeeding Renewal Term in the same amount which it was obligated under this Lease to pay prior to the commencement of the Renewal Term. When Fair Market Rental Value is determined, the appropriate Basic Rent shall be calculated retroactive to the commencement of the Renewal Term and Tenant shall either receive a refund from Landlord (in the case of an overpayment) or shall pay any deficiency to Landlord (in the case of an underpayment).
(c) Fair Market Value shall be determined as follows: The appraisers shall add (i) the present value of the Rent for the remaining Term, (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker) based on the creditworthiness of Tenant and (ii) the present value of the Fair Market Value of the Leased Premises as of the end of the then current Term (without necessarily making any assumption as to whether the Tenant will or will not exercise any remaining options), using a yield rate required by investors for property having similar characteristics, without consideration given to Tenant's credit rating or creditworthiness. In determining the value under (ii), the appraisers shall, insofar as possible, consider properties having similar characteristics and in reasonable proximity to the Leased Premises, but the appraisers shall not be precluded from considering properties that do not have "clean" rooms, properties that are (or are not) located in Hayward, California or properties having a different use than the Leased Premises. The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that Tenant has not violated (and will not violate) any of the Covenants.
(d) In determining Fair Market Rental Value, the appraisers shall determine the amount that a willing tenant would pay, and a willing landlord of a building having similar characteristics and in reasonable proximity to the Leased Premises would accept, at arm's length, taking into account:
(a) the age, quality, and condition of the Improvements; (b) that the Leased Premises will be leased as a whole or substantially as a whole to a single user; (c) a lease term of five (5) years; (d) an absolute triple net lease; and (e) such other items that professional real estate appraisers customarily consider. In determining Fair Market Rental Value, the appraisers shall, insofar as possible, consider properties having similar characteristics and in reasonable proximity to the Leased Premises, but the appraisers shall not be precluded from considering properties that do not have "clean" rooms, properties that are (or are not) located in Hayward, or properties having a different use than the Leased Premises.
Appears in 1 contract
Sources: Lease Agreement (Etec Systems Inc)
Determination of Value. 10.1 Fair Market Value For the purposes of Section 13, ---------------------- fair market value of the shares shall be determined in accordance with the following procedureas follows:
(ia) Landlord shall within fifteen (15) days following the date on which Landlord receives an Option Exercise Notice select a surveyor and notify Tenant in writing of the nameFair market value thereof, address and qualifications of such surveyor. Within fifteen (15) days following Tenant’s receipt of Landlord’s notice of the surveyor selected by Landlord, Tenant shall select a surveyor and notify Landlord of the name, address and qualifications of such surveyor. Such two surveyors shall endeavour to agree upon Fair Market Value based on a written appraisal made by each of them as of the date of such proposed repurchase, shall be agreed upon in good faith by the Option Exercise NoticeCompany and the Executive (or his estate or other successor in interest, as the case may be), taking into account, in valuing such Shares, all relevant facts and circumstances; provided, however, that there shall be no discount to reflect the fact that the Shares are illiquid or that they represent a minority interest in the Company . If no such two surveyors shall agree upon a Fair Market Valueagreement is reached within sixty (60) days after termination of employment, the amount of such Fair Market Value as so agreed fair market value shall be binding and conclusive upon Landlord and Tenantdetermined by appraisal as set forth below.
(iib) If such two surveyors All appraisals shall be unable to agree upon a Fair Market Value within twenty undertaken by two appraisers, one selected by the Board and one selected by the Executive (20) days after or his estate or other successor in interest, as the case may be). No Director whose Shares are being appraised shall vote on the selection of a surveyor the appraiser chosen by Tenant then the Company. The Company and the Executive shall use all reasonable efforts to cause such surveyors appraisers to determine the fair market value of the shares within thirty (30) days following the appointment of the last appraiser to be appointed. In the event that the two appraisers agree in good faith on such fair market value, such agreed value shall advise Landlord and Tenant be used for these purposes. If the appraisers cannot agree but their valuations are within 10% of then respective determination of Fair Market Valueeach other, the fair market value shall be the mean of the two valuations. If the appraisers cannot agree and the differences in the valuations are greater than 10%, the appraisers shall select a third surveyor to make appraiser who will calculate fair market value independently, and, except as provided in the determination of Fair Market Value. The selection next sentence, the fair market value of the third surveyor Shares shall be binding and conclusive upon Landlord and Tenant.
(iii) the average of the two fair market values arrived at by the appraisers who are closest in amount. If one appraiser's valuation is the mean of the other two valuations, such two surveyors mean valuation shall be unable to the fair market value. In the event that the two original appraisers cannot agree upon the designation fair market value of the Shares within the 30-day period referred to above and cannot agree upon a third surveyor appraiser within ten (10) days after following the expiration end of the twenty thirty (2030) day period referred to in clause (ii) above, or if such then the third surveyor does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor or a substituted third surveyor, as applicable, shall, at the request of either party hereto, appraiser shall be appointed by the Chairman American Arbitration Association in Boston, Massachusetts. The expenses of the Scottish RIGS. If appraiser chosen by the said Chairman shallCompany will be borne by it, for any reason, not be available or shall be unable to make such appointment at the time expenses of the application therefor, then the appointment may be made appraiser chosen by the next senior officer of the Scottish RICS then available and able to make such appointment orExecutive (or his estate or guardian) will be borne by him, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer). The determination of Fair Market Value made by the third surveyor appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(iv) If a third surveyor is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor and the determination of Fair Market Value made by the surveyor (selected pursuant to clause 10.1(i) hereof) whose determination of Fair Market Value is nearest to that expenses of the third surveyor. Such average shall be binding and conclusive upon Landlord and Tenant.
(v) All appraisers selected or appointed pursuant to this clause 10.1 shall (A) be independent qualified Scottish RICS surveyors (B) have no rightappraiser, power or authority to alter or modify the provisions of this Leaseif applicable, (C) utilize the definition of Fair Market Value set forth in clause 10.3, and (D) be registered in the Scottish RICS. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 above shall will be borne equally by Landlord and Tenant.
10.2 If, by virtue of any delay, Fair Market Value is not determined 50% by the Option Purchase Date, then Company and 50% by the Option Purchase Date shall be extended to a date no later than ten Executive (10) days following a determination of Fair Market Valueor his estate or guardian).
Appears in 1 contract
Sources: Employment Agreement (American Dental Partners Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the “Applicable Initial Date”) on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Leased Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), or (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to terminate this Lease pursuant to Paragraph 23(a)(iii). Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them (and given to Landlord by Tenant) as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty thirty (2030) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty thirty (2030) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers, (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value Rate set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, the third surveyor shall be deemed an arbiterState if such State provides for or requires such registration.
(vivii) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended to a the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (i) the present value of the Rent for the remaining Term, assuming the Term has been extended for all extension periods provided herein (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant [and Guarantor] and (ii) the present value of the Leased Premises as of the end of such Term (having assumed the Term has been extended for all extension periods provided herein). The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease[, and that no Event of Default exists under the Guaranty].
Appears in 1 contract
Sources: Lease Agreement
Determination of Value. 10.1 Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord Upon delivery of notice by Buyer to Unocal of a Material Environmental Deficiency, Buyer and Unocal shall within fifteen (15) days following the date on which Landlord receives an Option Exercise Notice select a surveyor meet and notify Tenant in writing of the name, address and qualifications of such surveyor. Within fifteen (15) days following Tenant’s receipt of Landlord’s notice of the surveyor selected by Landlord, Tenant shall select a surveyor and notify Landlord of the name, address and qualifications of such surveyor. Such two surveyors shall endeavour use their best efforts to agree upon Fair Market Value on whether such a Material Environmental Deficiency exists. The value of Environmental Liabilities shall be based on a written appraisal made by each of them as of the date of the Option Exercise Notice. If such two surveyors shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenantestimated Remediation Cost.
(ii) If such two surveyors If, during the Due Diligence Period, Buyer determines there is a Material Environmental Deficiency and desires to terminate this Agreement, it shall immediately so notify Unocal. Unocal shall respond on the earlier of the Date of Closing or seven (7) days from the date of notice whether it concurs in Buyer's determination that the estimated Remediation Cost of the applicable Environmental Liabilities is sufficient to constitute a Material Environmental Deficiency. In the event Unocal concurs in Buyer's determination, the termination of this Agreement shall be unable to agree upon treated as a Fair Market Value within twenty (20) days after the selection of a surveyor termination by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection mutual consent of the third surveyor shall be binding and conclusive upon Landlord and TenantParties.
(iii) If such two surveyors shall be unable to agree upon Unocal timely notifies Buyer that it does not concur with the designation of a third surveyor within ten (10) days after the expiration Buyer's determination of the twenty (20) day period referred estimated Remediation Costs, Buyer may still elect to in clause (ii) above, or if such third surveyor does not make terminate this Agreement and request a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor or a substituted third surveyor, as applicable, shall, at the request value of either party hereto, be appointed the Environmental Liabilities by the Chairman following procedure: the Parties will submit the issue of the Scottish RIGSexistence of a Material Environmental Deficiency to arbitration in accordance with the arbitration procedures set forth in Exhibit "D". If the said Chairman shallarbitrators determine that a Material Environmental Deficiency does not exist, for any reason, Buyer will pay the arbitration costs and shall not be available or entitled to the return of the ▇▇▇▇▇▇▇ Money Deposit. If the arbitrators find that a Material Environmental Deficiency does exist, Unocal will pay the arbitration costs and shall be unable to make such appointment return Buyer's ▇▇▇▇▇▇▇ Money Deposit with interest at the time Interest Rate within fifteen (15) business days. If Buyer does not elect to terminate this Agreement in a written notice to Unocal prior to the commencement of the application thereforarbitration in connection with this Section, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman Buyer shall be deemed to include have waived its right to terminate this Agreement under this Section 4.10(iii) unless and until the arbitors determine that a reference Material Environmental Deficiency exists, and if such arbitors determine that no Material Environmental Deficiency exists, then Buyer shall pay all arbitration costs an proceed toward Closing, subject to such senior office holder or the other officer). The determination terms and conditions of Fair Market Value made by the third surveyor appointed pursuant hereto shall be made within twenty (20) days after such appointmentthis Agreement.
(iv) If a third surveyor is selected, Fair Market Value Any and all disagreements between Buyer and Unocal regarding the value of Environmental Liabilities shall be submitted to arbitration in accordance with the average of the determination of Fair Market Value made by the third surveyor and the determination of Fair Market Value made by the surveyor (selected pursuant to clause 10.1(i) hereof) whose determination of Fair Market Value is nearest to that of the third surveyor. Such average shall be binding and conclusive upon Landlord and Tenant.
(v) All appraisers selected or appointed pursuant to this clause 10.1 shall (A) be independent qualified Scottish RICS surveyors (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value arbitration procedures set forth in clause 10.3, and (Exhibit "D) be registered in the Scottish RICS. For all purposes, the third surveyor shall be deemed an arbiter".
(vi) The Cost of the procedure described in this clause 10.1 above shall be borne equally by Landlord and Tenant.
10.2 If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Date, then the Option Purchase Date shall be extended to a date no later than ten (10) days following a determination of Fair Market Value.
Appears in 1 contract
Sources: Purchase and Sale Agreement (Magnum Hunter Resources Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within fifteen thirty (1530) days following after the date (the "APPLICABLE INITIAL DATE") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Leased Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to terminate this Lease pursuant to Paragraph 23(a)(iii) or (D) Landlord receives an Option Exercise Notice Notice. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifty (50) days after the Applicable Initial Date select a surveyor an appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them (and given to Landlord by Tenant) as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers having no less than ten (10) years experience involving properties similar to the Leased Premises, (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICSState if the State provides for or requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended to a the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (i) the present value of the Rent for the remaining Term using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and Guarantor and (ii) the present value of the Leased Premises as of the end of such Term. The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that no Event of Default exists under the Guaranty.
Appears in 1 contract
Sources: Lease Agreement (Foster Wheeler LTD)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value or Fair Market Rental Value is required pursuant to any provision of this Lease, such Fair Market Value or Fair Market Rental Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree on Fair Market Value or Fair Market Rental Value, as applicable, on the date (an "Applicable Initial Date") which is (A) within fifteen thirty (1530) days following the date on which Landlord receives Tenant exercises its option under Paragraph 23 (l) or (B) within six (6) calendar months prior to the Expiration Date unless Tenant has previously exercised its option pursuant to Paragraph 5(b) not to have the Term automatically extended. Upon reaching such agreement, the parties shall execute an Option Exercise Notice agreement setting forth the amount of such Fair Market Value or Fair Market Rental Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifty (50) days after the Applicable Initial Date select a surveyor an appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value or Fair Market Rental Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date (and given to Landlord by Tenant). If such two surveyors appraisers shall agree upon a Fair Market Value or Fair Market Rental Value, the amount of such Fair Market Value or Fair Market Rental Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(ii) If such two surveyors shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection of the third surveyor shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value or Fair Market Rental Value within twenty (20) days after the selection of an appraiser by Landlord, then such appraisers shall advise Landlord and Tenant of their respective determination of Fair Market Value or Fair Market Rental Value and shall select a third appraiser to make the determination of Fair Market Value or Fair Market Rental Value. The selection of the third appraiser shall be binding and conclusive upon Landlord and Tenant.
(iv) If such two appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value or Fair Market Rental Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with respect to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallGerman Institution of Arbitration ("DIS - Deutsche Institution fur Schiedsgerichtsbarkeit e.V.") located in Cologne, for any reasonBerlin and Munich, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer). Germany The determination of Fair Market Value or Fair Market Rental Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value or Fair Market Rental Value shall be the average of the determination of Fair Market Value or Fair Market Rental Value made by the third surveyor appraiser and the determination of Fair Market Value or Fair Market Rental Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value or Fair Market Rental Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value or Fair Market Rental Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, the third surveyor shall be deemed an arbiterGermany as officially recognized expert for building and real estate ("Offentlich bestellter und vereidigter Gebaudesachverstandiger").
(vivii) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne split equally by between Landlord and Tenant unless an Event of Default exists in which event the cost shall be paid by Tenant.
10.2 If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Date, then the Option Purchase Date shall be extended to a date no later than ten (10) days following a determination of Fair Market Value.
Appears in 1 contract
Sources: Lease Agreement (Corporate Property Associates 16 Global Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention not to extend or to terminate this Lease pursuant to Paragraph 13(b) or Paragraph 14(i), (B) Tenant provides Landlord with notice of Tenant's intention to purchase the Leased Premises pursuant to Paragraph 28, (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to purchase the Leased Premises pursuant to Paragraph 19(b)(v) hereof, as applicable. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement setting forth the amount of such agreed Fair Market Value within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s receipt of Landlord’s notice of the surveyor selected by Landlordthereafter, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors The appraiser selected by Tenant and the appraiser selected by Landlord shall endeavour endeavor to agree upon the Fair Market Value of the Leased Premises, based on a written appraisal Fair Market Appraisal made by each of them as of the date specified in the particular provision of this Lease (the Option Exercise Notice"Applicable Provision") pursuant to which the determination of Fair Market Value in being made. If such the said two surveyors appraisers shall agree upon a such Fair Market Value, the amount of such Fair Market Value as so agreed to by the said two appraisers shall be binding and conclusive upon Landlord and Tenantconclusive.
(iiiii) If such two surveyors the appraiser selected by Tenant and the appraiser selected by Landlord shall be unable to agree upon a such Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the said two appraisers shall select a third surveyor appraiser to make the determination of such Fair Market Value. The selection Value and the determination of the such third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors In the event the appraiser selected by Tenant and the appraiser selected by Landlord shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, above or if such in the event the third surveyor appraiser so selected does not make a determination of the Fair Market Value of the Leased Promises, within twenty (20) days after his the selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as am applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in Boston, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)Massachusetts. The determination of Fair Market Value value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(iv) If a third surveyor is selected, . Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor (selected pursuant to clause 10.1(i) hereof) 52 -50- appraiser whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(v) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 27(a) shall (A) be independent qualified Scottish RICS surveyors (B) appraisers. Such appraisers shall have no right, power or authority to alter or modify the provisions of this LeaseLease and in determining the fair Market Value of the Leased Promises, (C) such appraisers shall utilize the definition of Fair Market Value set hereinabove not forth in clause 10.3, and (D) be registered in the Scottish RICS. For all purposes, the third surveyor shall be deemed an arbiterabove.
(vib) The Cost cost of the procedure described in this clause 10.1 Paragraph 27(a) above shall be borne equally entirely by Tenant in the case of a purchase pursuant to Paragraph 19(b)(iii). In all other cases Landlord shall pay the fees and costs of the appraiser appointed by Landlord, Tenant shall pay fees and costs of the appraiser appointed by Tenant, and the fees and costs of the third appraiser (and of the American Arbitration Association, if applicable), shall be split evenly between the parties.
10.2 (c) If, by virtue of any delaydelay in the appointment of a third appraiser pursuant to Paragraph 27(a)(iv) above or of any delay by such appointed third appraiser to determine such Fair Market Value, the Fair Market Value of the Leased Premises is not determined by such appointed third appraiser within one hundred forty (140) days after the Option Purchase Applicable Initial Date, then the Option Purchase Date date (the "Applicable Final Date") on which the Leased Premises would otherwise be sold to Tenant or on which this Lease would otherwise terminate, as specified in the Applicable Provision, shall be extended to a date no later than ten the same number of days (10the "Delay Period") days following a by which the total period so required for the binding and conclusive determination of Fair Market ValueValue exceeds one hundred forty (140) days and all relevant defined terms used in the Applicable Provision shall be deemed amended accordingly, anything to the contrary in the Applicable Provision notwithstanding. In addition, any time period which is afforded Landlord under the Applicable Provision within which to accept or reject an offer by Tenant shall likewise be extended by the number of days equal to the Delay Period.
Appears in 1 contract
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Rental Value is required pursuant to any provision of this Lease, such Fair Market Rental Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree on Fair Market Rental Value on the date (also, an "Applicable Initial Date") which is six (6) calendar months prior to the expiration of the then current Term unless Tenant has not previously exercised its option pursuant to Paragraph 5(b) to have the Term extended. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Rental Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Rental Value based on a written appraisal made by each of them (and given to Landlord by Tenant) as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Rental Value, the amount of such Fair Market Rental Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(ii) If such two surveyors shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor by Tenant then such surveyors shall advise Landlord and Tenant of then respective determination of Fair Market Value, the two appraisers shall select a third surveyor to make the determination of Fair Market Value. The selection of the third surveyor shall be binding and conclusive upon Landlord and Tenant.
(iii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Rental Value within twenty (20) days after the selection of an appraiser by Landlord, then such appraisers shall advise Landlord and Tenant of their respective determination of Fair Market Rental Value and shall select a third appraiser to make the determination of Fair Market Rental Value. The selection of the third appraiser shall be binding and conclusive upon Landlord and Tenant.
(iv) If such two appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Rental Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Rental Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Rental Value shall be the average of the determination of Fair Market Rental Value made by the third surveyor appraiser and the determination of Fair Market Rental Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Rental Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Rental Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, the third surveyor shall be deemed an arbiterState if such State provides for or requires such registration.
(vivii) The Cost Costs of the procedure described in this clause 10.1 Paragraph 29(a) above shall be equally borne equally by Landlord and Tenant unless an Event of Default shall have occurred, in which event, the Costs of such procedure shall be at Tenant's sole expense.
10.2 (b) If, by virtue of any delay, Fair Market Rental Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended to the date specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Rental Value is being made. If, by virtue of any delay, Fair Market Rental Value is not determined by the expiration or termination of the then current Term, then until Fair Market Rental Value is determined, Tenant shall continue to pay Basic Rent during the succeeding Renewal Term in the same amount which it was obligated under this Lease to pay prior to the commencement of the Renewal Term. When Fair Market Rental Value is determined, the appropriate Basic Rent shall be calculated retroactive to the commencement of the Renewal Term and Tenant shall either receive a date no later than refund from Landlord (in the case of an overpayment) or shall pay any deficiency to Landlord (in the case of an underpayment).
(c) In determining Fair Market Rental Value, the appraisers shall determine the amount that a willing tenant would pay, and a willing landlord of a comparable building located in a radius of thirty (30) miles of the Leased Premises would accept, at arm's length, to rent a building of comparable size and quality as the Improvements, taking into account: (i) the age, quality, condition (as required by the Lease) of the Improvements; (ii) that the Leased Premises will be leased as a whole or substantially as a whole to a single user; (iii) a lease term of ten (10) days following a determination of Fair Market Valueyears; (iv) an absolute triple net lease; and (v) such other items that professional real estate appraisers customarily consider.
Appears in 1 contract
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant (or Third Party Purchaser with respect to a determination under clause (D) below) shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Leased Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c), (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to terminate this Lease pursuant to Paragraph 23(a)(iii) or (D) Tenant provides Landlord with notice of the exercise of its option to purchase the Leased Premises pursuant to Paragraph 35. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them (and given to Landlord by Tenant) as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors appraisers shall agree upon a Fair Market Value, they shall advise Landlord and Tenant of their agreed upon determination of the Fair Market Value, and the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in Chicago, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)Illinois. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICSState if the State provides for or requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne entirely by Tenant if the appraisals are performed as a result of an Event of Default or the exercise by Tenant of its option to purchase the Leased Premises under Paragraph 35. The cost of all other appraisals shall be split equally by between Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended to a the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (i) the present value of the Rent for the remaining Term, assuming the Term has been extended for all extension periods provided herein using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (ii) the present value of the Leased Premises as of the end of such Term (having assumed the Term has been extended for all extension periods provided herein). The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease, and that Tenant has not violated (and will not violate) any of the Covenants. In determining Fair Market Value as defined in clause (a) of the definition of Fair Market Value, the appraisers shall not consider any discrete additional structure that is an addition to the Improvements if (i) the cost of such addition is not paid for by Landlord and (ii) such additional structure is not integral to the use and operation of the Improvements, does not adversely impact the Fair Market Value of the Leased Premises and can be removed without causing damage to the Leased Premises.
Appears in 1 contract
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Leased Premises pursuant to Paragraph 18, (B) Landlord provides Tenant with notice of its intention to redetermine Fair Market Value pursuant to Paragraph 20(c) or (C) Landlord provides Tenant with notice of Landlord's intention to require Tenant to make an offer to terminate this Lease pursuant to Paragraph 23(a)(iii). Upon reaching such agreement,
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen twenty (1520) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them as of the date Relevant Date and delivered to each of the Option Exercise NoticeLandlord and Tenant. If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenantconclusive.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party hereto, be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in Houston, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)Texas. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected the "Nearest Appraiser") (pursuant to clause 10.1(iParagraph 29 (a) (ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. In calculating the average of the Fair Market Value determined by the third appraiser and by the Nearest Appraiser, the values determined by Lender pursuant to clause "(a)" of the definition of "Fair Market Value" shall be averaged, and the values determined by each pursuant to clause "(b)" of such definition shall be averaged, and the "Fair Market Value" shall be the higher of such -44- 47 two averages. Such average determination of Fair Market Value shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICSState if the State provides for or requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally entirely by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended to a the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (a) the present value of the Rent for the remaining Term, assuming the Term has been extended for all extension periods provided herein (with assumed increases in the CPI (as defined in Exhibit D) to be determined by the appraisers) and (b) the present value of the Leased Premises as of the end of such Term (having assumed the Term has been extended for all extension periods provided herein). The present value in each such instance shall be determined by using the Prime Rate in effect on the Applicable Initial Date as a discounting factor. The appraisers shall further assume that no default then exists under the Lease and that Tenant has complied (and will comply) with all provisions of the Lease.
Appears in 1 contract
Sources: Lease Agreement (Corporate Property Associates 12 Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to Paragraph 18, such Fair Market Value shall be determined in accordance with the following procedure:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the “Applicable Initial Date”) on which Tenant delivers a Termination Notice to Landlord pursuant to Paragraph 18. Upon reaching such agreement, the parties shall execute an agreement setting forth the amount of such Fair Market Value.
(ii) If the parties shall not have signed such agreement within twenty (20) days after the Applicable Initial Date, Tenant shall within fifteen fifty (1550) days following after the date on which Landlord receives Applicable Initial Date select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen (15) days following TenantLandlord’s receipt of LandlordTenant’s notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them as of the date of the Option Exercise NoticeRelevant Date (and given to Landlord by Tenant). If such two surveyors appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors appraisers shall be unable to agree upon a Fair Market Value within twenty fifteen (2015) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor appraiser to make the determination of Fair Market Value. The selection of the third surveyor appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors appraisers shall be unable to agree upon the designation of a third surveyor appraiser within ten (10) days after the expiration of the twenty fifteen (2015) day period referred to in clause (iiiii) above, or if such third surveyor appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor appraiser or a substituted third surveyorappraiser, as applicable, shall, at the request of either party heretohereto (with respect to the other party), be appointed by the President or Chairman of the Scottish RIGS. If the said Chairman shallAmerican Arbitration Association in New York, for any reason, not be available or shall be unable to make such appointment at the time of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)New York. The determination of Fair Market Value made by the third surveyor appraiser appointed pursuant hereto shall be made within twenty fifteen (2015) days after such appointment.
(ivv) If a third surveyor appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyorappraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICS. For all purposes, State where the third surveyor shall be deemed an arbiterLeased Premises is located if such State provides for or requires such registration.
(vivii) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended with respect to a the Leased Premises, to the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall add (a) the Present Value of the Rent for the remaining Term, assuming the Term has been extended for all extension periods provided herein (with assumed increases in the CPI to be determined by the appraisers) using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant and (b) the Present Value of the Leased Premises as of the end of such Term (having assumed the Term has been extended for all extension periods provided herein). The appraisers shall further assume that no default then exists under the Lease, that Tenant has complied (and will comply) with all provisions of the Lease.
Appears in 1 contract
Sources: Lease Agreement (P&f Industries Inc)
Determination of Value. 10.1 (a) Whenever a determination of Fair Market Value is required pursuant to any provision of this Lease, such Fair Market Value shall be determined in accordance with the following procedureprocedures:
(i) Landlord and Tenant shall endeavor to agree upon such Fair Market Value within thirty (30) days after the date (the "Applicable Initial Date") on which (A) Tenant provides Landlord with notice of its intention to terminate this Lease and purchase the Leased Premises pursuant to Paragraph 18, or (B) Landlord provides Tenant with notice of its intention to re-determine Fair Market Value pursuant to Paragraph 20(c). If Tenant exercises or is deemed to have exercised its renewal options as set forth in Paragraph 5 of this Lease, then Landlord and Tenant shall endeavor to agree upon such Fair Rental Value within ninety (90) days after the date Landlord receives notice of Tenant's desire to exercise its renewal options (also, the "Applicable Initial Date"). Landlord shall provide Tenant with its interpretation of Fair Rental Value within fifteen (15) days following of the date on which Landlord receives Applicable Initial Date. Upon reaching any such agreement, the parties shall execute a written agreement setting forth the amount of such Fair Market Value or Fair Rental Value, as applicable.
(ii) If the parties shall not have signed such agreement within thirty (30) days after the Applicable Initial Date for Fair Market Value or within ninety (90) days after the Applicable Initial Date for Fair Rental Value, Tenant shall within forty-five (45) days after the Applicable Initial Date for Fair Market Value and within one hundred and five (105) days after the Applicable Initial Date for Fair Rental Value select an Option Exercise Notice select a surveyor appraiser and notify Tenant Landlord in writing of the name, address and qualifications of such surveyorappraiser. Within fifteen (15) days following Tenant’s Landlord's receipt of Landlord’s Tenant's notice of the surveyor appraiser selected by LandlordTenant, Tenant Landlord shall select a surveyor an appraiser and notify Landlord Tenant of the name, address and qualifications of such surveyorappraiser. Such two surveyors appraisers shall endeavour endeavor to agree upon Fair Market Value based on a written appraisal made by each of them (and given to Landlord by Tenant) as of the date of the Option Exercise NoticeRelevant Date. If such two surveyors (2) appraisers shall agree upon a Fair Market Value, the amount of such Fair Market Value as so agreed shall be binding and conclusive upon Landlord and Tenant.
(iiiii) If such two surveyors (2) appraisers shall be unable to agree upon a Fair Market Value within twenty (20) days after the selection of a surveyor an appraiser by Tenant Landlord, then such surveyors appraisers shall advise Landlord and Tenant of then their respective determination of Fair Market Value, the two appraisers Value and shall select a third surveyor (3rd) appraiser to make the determination of Fair Market Value. The selection of the third surveyor (3rd) appraiser shall be binding and conclusive upon Landlord and Tenant.
(iiiiv) If such two surveyors (2) appraisers shall be unable to agree upon the designation of a third surveyor (3rd) appraiser within ten (10) days after the expiration of the twenty (20) day period referred to in clause (iiiii) above, or if such third surveyor (3rd) appraiser does not make a determination of Fair Market Value within twenty (20) days after his selection, then such third surveyor (3rd) appraiser or a substituted third surveyor(3rd) appraiser, as applicable, shall, at the request of either party hereto, be appointed by the Chairman seniormost judge of the Scottish RIGS. If the said Chairman shallUnited States District Court, for any reason, not be available or shall be unable to make such appointment at the time Southern District of the application therefor, then the appointment may be made by the next senior officer of the Scottish RICS then available and able to make such appointment or, if no such officer of the Scottish RICS shall be so available and able, by such officer of such professional body of surveyors as the Landlord shall designate (and any reference to the Chairman shall be deemed to include a reference to such senior office holder or other officer)Texas. The determination of Fair Market Value made by the third surveyor (3rd) appraiser appointed pursuant hereto shall be made within twenty (20) days after such appointment.
(ivv) If a third surveyor (3rd) appraiser is selected, Fair Market Value shall be the average of the determination of Fair Market Value made by the third surveyor (3rd) appraiser and the determination of Fair Market Value made by the surveyor appraiser (selected pursuant to clause 10.1(iParagraph 29(a)(ii) hereof) whose determination of Fair Market Value is nearest to that of the third surveyor(3rd) appraiser. Such average shall be binding and conclusive upon Landlord and Tenant.
(vvi) All appraisers selected or appointed pursuant to this clause 10.1 Paragraph 29(a) shall (A) be independent qualified Scottish RICS surveyors MAI appraisers, (B) have no right, power or authority to alter or modify the provisions of this Lease, (C) utilize the definition of Fair Market Value hereinabove set forth in clause 10.3above, and (D) be registered in the Scottish RICSState if the State provides for or requires such registration. For all purposes, the third surveyor shall be deemed an arbiter.
(vi) The Cost of the procedure described in this clause 10.1 Paragraph 29(a) above shall be borne equally by Landlord and Tenant.
10.2 (b) If, by virtue of any delay, Fair Market Value is not determined by the Option Purchase Dateexpiration or termination of the then current Term, then the Option Purchase Date date on which the Term would otherwise expire or terminate shall be extended to a the date no later than ten (10) days following a specified for termination in the particular provision of this Lease pursuant to which the determination of Fair Market Value is being made.
(c) In determining Fair Market Value as defined in clause (b) of the definition of Fair Market Value, the appraisers shall assume (a) the present value of the Rent for the remaining Term using a discount rate (which may be determined by an investment banker retained by each appraiser) based on the creditworthiness of Tenant, and (b) the present value of the Leased Premises as of the end of such Term based on "value in use" of the Leased Premises after expiration of the Term.
(d) Notwithstanding the foregoing, either Landlord or Tenant may terminate the negotiations to determine Fair Rental Value at anytime prior to its final determination at which time Tenant's renewal option as set forth in this Lease shall expire.
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Sources: Lease Agreement (Input Output Inc)