First Offer Right. 27.1 Landlord shall not (a) sell, transfer, assign or otherwise dispose of any partial interest in the Property or any part thereof to an unrelated third party, or (b) sell, transfer, assign or otherwise dispose of its interest in the Property to an unrelated third party until at least fifteen (15) days after it has given Tenant written notice (the “Landlord’s Notice”) as herein provided of its intention to dispose of the Property. The Landlord’s Notice shall describe in reasonable detail Landlord’s determination of the Fair Market Value of the Property at which Landlord intends to sell the Property (including, if the proposed consideration for such disposition is property other than cash, the Fair Market Value of such property, in Landlord’s opinion, as of the date of the notice), and the other terms of such proposed disposition. Tenant shall have and is hereby granted the first right and option (“First Offer Right”) to purchase the Property in the manner, at the price and on the terms provided in the Landlord’s Notice. During the Term and except as required by the terms of the First Mortgage, Landlord shall not transfer, sell or convey all or any portion of the Property. 27.2 The First Offer Right may be exercised by Tenant by giving notice to Landlord at any time within ten (10) days after receipt of the Landlord’s Notice. 27.3 The purchase price for the Property pursuant to exercise of the First Offer Right shall be the price stated in the Landlord’s Notice as the price at which Landlord proposes to sell, transfer or assign the Property; provided that (a) if all or any part of the proposed consideration for said sale, transfer or assignment is property other than cash, such portion of the purchase price to be paid by Tenant shall be based on the Fair Market Value of the Property as of the date of Landlord’s Notice to be determined by appraisal in accordance with Article 28 below, and (b) if the Property is being disposed of together with other land or property, then Tenant may elect to have the consideration payable by it for the Property equal the Fair Market Value of such interest as of the date of Landlord’s Notice to be determined by appraisal in accordance with the procedure provided in Article 28 below. 27.4 Contemporaneously with giving the Landlord’s Notice, Landlord shall provide a title insurance commitment for the Property with a then-current effective date. If such commitment reflects any matter materially and adversely affecting title to the Property in addition to the Permitted Exceptions (other than this Lease, a First Mortgage, and any encumbrances created on or after the date hereof by Tenant or those claiming by, through or under Tenant or with Tenant’s consent), then Tenant may give Landlord written notice of such matter. If Tenant gives Landlord such notice, Landlord use reasonable efforts to cause such matter to be removed and corrected of record within said ten (10) days of receipt of Tenant’s notice. If Landlord fails to do so within said thirty (30) days, Tenant may at its option (a) attempt to cause such encumbrances to be removed, (b) proceed to close, or (c) terminate the agreement formed by exercise of the First Offer Right by giving written notice thereof to Landlord, without such termination releasing Landlord from liability for damages hereunder. If Tenant elects alternative (a) above, closing shall be postponed until the encumbrances in question are removed and, if Tenant is unable within a further period of ten (10) days to cause such encumbrances to be removed, Tenant may then elect either alternative (b) or (c) above. All costs and expenses incurred by Tenant in causing or attempting to cause such encumbrances to be removed, including reasonable attorneys fees, shall be payable by Landlord. 27.5 Subject to postponement pursuant to Section 27.4, Landlord shall convey the Property to Tenant on the first business day occurring thirty (30) days after the date Tenant exercises the First Offer Right at Landlord’s main offices. The deed shall be in the usual, proper limited warranty form for recording and registration, subject only to Permitted Exceptions and the other matters permitted pursuant to Section 27.4, and shall be accompanied by all documents necessary to allow the deed to be recorded. Landlord shall pay any state deed tax or revenue stamps or other transfer tax. Landlord shall pay any prepayment penalty or provision payable under the First Mortgage if the First Mortgage is satisfied in connection with the closing. Tenant shall pay any assumption fee payable under the First Mortgage in connection with such closing if Tenant assumes the First Mortgage. The purchase price (less the unpaid principal balance of the First Mortgage if assumed (subject to the terms thereof) by Tenant at the closing) shall be payable by wire transfer or other readily available funds. This Lease and all of the terms and provisions hereof shall remain in full force and effect until the purchase has closed, except as otherwise provided herein. Notwithstanding anything to the contrary in this Article 27, to the extent Tenant (subject to the terms of the First Mortgage) does not assume the First Mortgage, Landlord shall discharge the First Mortgage and all documents and agreements associated therewith at the closing. 27.6 If Tenant fails to exercise the First Offer Right within the ten (10) day period provided in Section 27.2, Landlord shall be free to sell the Property free from the First Offer Right but subject to this Lease on the same price and terms provided in the Landlord’s Notice for a period of one hundred eighty (180) days following the expiration of such ten (10) day period. If Landlord does not close upon the transfer of the Property within such one hundred eighty (180) day period on substantially the same terms as those provided in the Landlord’s Notice, then the First Offer Right shall revive and Landlord shall be obligated to re-offer the Property to Tenant in accordance with Section 27.1 prior to any sale, transfer or disposition of the same. As used in this Section 27.6, “substantially the same” terms shall mean that the purchase price pursuant to which Landlord proposes to sell the Property is not less than ninety-five percent (95%) of that provided in the Landlord’s Notice, adjusted for any difference in treatment of closing costs, and the terms are otherwise the same terms as provided in the Landlord’s Notice, provided that the provision of representations, warranties or other comfort to a third party purchaser, to the extent they relate to matters which such third party purchaser, not like Tenant having been in possession of and having knowledge of the Property, may require, shall not cause such transaction not to be on the same terms. Tenant shall, within five (5) days after Landlord’s request therefore, deliver an instrument in form reasonably satisfactory to Landlord confirming the provisions of this Section 27.6, but no such instrument shall be necessary to make the provisions hereof effective. 27.7 If Tenant does not timely exercise its First Offer Right and the Property is transferred to a third party, Tenant will attorn to such third party as Landlord so long as such third party and Landlord notify Tenant in writing of such transfer. 27.8 Notwithstanding anything to the contrary contained herein, the provisions of this Article 27 shall not apply to or prohibit the following: 27.8.1 The giving or granting of the First Mortgage; 27.8.2 Any sale of the Property pursuant to a private power of sale under or judicial foreclosure of the First Mortgage; 27.8.3 Any transfer of Landlord’s interest in the Property to First Mortgagee in lieu of foreclosure of the First Mortgage; or
Appears in 2 contracts
Sources: Lease Agreement (Life Time Fitness Inc), Lease Agreement (Life Time Fitness Inc)
First Offer Right. 27.1 As long as this Lease is in full force and effect, without material default by Tenant, Landlord shall not agrees that prior to renting any space on the remainder of the Sixth Floor of the Building (athe “First Offer Space”) sell, transfer, assign or otherwise dispose of any partial interest in the Property or any part thereof to an unrelated a third party, or (b) sell, transfer, assign or otherwise dispose of its interest Landlord will inform Tenant in the Property to an unrelated writing that it has a prospective third party until at least fifteen tenant for the First Offer Space. On or before ten (1510) business days after it has given Tenant written notice (the “Landlord’s Notice”) as herein provided of its intention to dispose of the Property. The Landlord’s Notice shall describe in reasonable detail Landlord’s determination of the Fair Market Value of the Property at which Landlord intends to sell the Property (including, if the proposed consideration for such disposition is property other than cash, the Fair Market Value of such property, in Landlord’s opinion, as of the date of such written notice, Tenant will have the notice), and right (the other terms of such proposed disposition. Tenant shall have and is hereby granted the first right and option (“First Offer Right”) to purchase the Property in the mannersend Landlord a notice stating that Tenant elects to rent all, at the price and on the terms provided in the Landlord’s Notice. During the Term and except as required by the terms but not less than all, of the First Mortgage, Landlord shall not transfer, sell or convey all or any portion Offer Space. It is the intention of the Property.
27.2 The parties that after the exercise by Tenant of the First Offer Right may be exercised by Tenant by giving notice to Landlord there shall remain at any time within ten least five (105) days after receipt years on the Term of the LandlordLease. Accordingly, Tenant’s Notice.
27.3 The purchase price for the Property pursuant to exercise of the First Offer Right shall be the price stated in the Landlord’s Notice as the price at which Landlord proposes to sell, transfer or assign the Property; provided that (a) if all or any part of the proposed consideration for said sale, transfer or assignment is property other than cash, such portion of the purchase price to be paid by Tenant shall be based on the Fair Market Value of the Property as of the date of Landlord’s Notice to be determined by appraisal in accordance with Article 28 below, and (b) if the Property is being disposed of together with other land or property, then Tenant may elect to have the consideration payable by it for the Property equal the Fair Market Value of such interest as of the date of Landlord’s Notice to be determined by appraisal in accordance with the procedure provided in Article 28 below.
27.4 Contemporaneously with giving the Landlord’s Notice, Landlord shall provide a title insurance commitment for the Property with a then-current effective date. If such commitment reflects any matter materially and adversely affecting title to the Property in addition to the Permitted Exceptions (other than this Lease, a First Mortgage, and any encumbrances created on or after the date hereof by Tenant or those claiming by, through or under Tenant or with Tenant’s consent), then Tenant may give Landlord written notice of such matter. If Tenant gives Landlord such notice, Landlord use reasonable efforts to cause such matter to be removed and corrected of record within said ten (10) days of receipt of Tenant’s notice. If Landlord fails to do so within said thirty (30) days, Tenant may at conditioned either upon its option (a) attempt to cause such encumbrances to be removed, (b) proceed to close, or (c) terminate the agreement formed by exercise of the First Offer Right by giving written notice thereof to Landlord, without such termination releasing Landlord from liability renewal right contained in this Lease or upon its entering into a Lease Amendment extending the Term of the Lease for damages hereunderat least five (5) years. If Tenant elects alternative the time of the exercise of such right is within one year of the three (a3) aboveyear anniversary of the Rent Commencement Date, closing Tenant’s exercise of such right shall be postponed until the encumbrances conditioned upon Tenant’s express waiver of its Termination Right set forth in question are removed and, if Tenant is unable within a further period of ten (10) days §31.19 below. Tenant=s notice electing to cause such encumbrances to be removed, Tenant may then elect either alternative (b) or (c) above. All costs and expenses incurred by Tenant in causing or attempting to cause such encumbrances to be removed, including reasonable attorneys fees, shall be payable by Landlord.
27.5 Subject to postponement pursuant to Section 27.4, Landlord shall convey the Property to Tenant on the first business day occurring thirty (30) days after the date Tenant exercises rent the First Offer Right at Landlord’s main offices. The deed shall Space must be in the usual, proper limited warranty form for recording and registration, subject only to Permitted Exceptions and the other matters permitted pursuant to Section 27.4, and shall be accompanied by all documents necessary to allow the deed to be recorded. Landlord shall pay any state deed tax or revenue stamps or other transfer tax. Landlord shall pay any prepayment penalty or provision payable under the First Mortgage if the First Mortgage is satisfied in connection with the closing. Tenant shall pay any assumption fee payable under the First Mortgage in connection with such closing if Tenant assumes the First Mortgage. The purchase price (less the unpaid principal balance of the First Mortgage if assumed (subject to the terms thereof) by Tenant at the closing) shall be payable by wire transfer or other readily available funds. This Lease and all of the terms and provisions hereof shall remain in full force and effect until the purchase has closed, except as otherwise provided herein. Notwithstanding anything to the contrary in this Article 27, to the extent Tenant (subject to the terms of the First Mortgage) does not assume the First Mortgage, Landlord shall discharge the First Mortgage and all documents and agreements associated therewith at the closing.
27.6 If Tenant fails to exercise the First Offer Right postmarked within the ten (10) business day period provided in Section 27.2and sent by Registered or Certified Mail, Landlord shall be free to sell the Property free from the First Offer Right but subject to this Lease on the same price and terms provided in the Landlord’s Notice for a period of one hundred eighty (180) days following the expiration of such ten (10) day period. If Landlord does not close upon the transfer Return Receipt Requested, time being of the Property within such one hundred eighty (180) day period on substantially the same terms as those provided in the Landlord’s Notice, then the First Offer Right shall revive and Landlord shall be obligated to re-offer the Property to Tenant in accordance with Section 27.1 prior to any sale, transfer or disposition of the sameessence. As used in this Section 27.6, “substantially the same” terms shall mean that the purchase price pursuant to which Landlord proposes to sell the Property is not less than ninety-five percent (95%) of that provided in the Landlord’s Notice, adjusted for any difference in treatment of closing costs, and the terms are otherwise the same terms as provided in the Landlord’s Notice, provided that the provision of representations, warranties or other comfort to a third party purchaser, to the extent they relate to matters which such third party purchaser, not like Tenant having been in possession of and having knowledge of the Property, may require, shall not cause such transaction not to be on the same terms. Tenant shall, within five (5) days after Landlord’s request therefore, deliver an instrument in form reasonably satisfactory to Landlord confirming the provisions of this Section 27.6, but no such instrument shall be necessary to make the provisions hereof effective.
27.7 If Tenant does not timely exercise its the First Offer Right and Right, Landlord will be thereafter free to rent the Property is transferred First Offer Space to a third partyanother tenant or tenants. In the event Tenant exercises the First Offer Right, Tenant will attorn to such third party as Landlord so long as such third party and Landlord notify Tenant in writing then on the earlier of such transfer.
27.8 Notwithstanding anything the date of Substantial Completion of Improvements to the contrary contained hereinFirst Offer Space, or the provisions of this Article 27 shall not apply to or prohibit the following:
27.8.1 The giving or granting date Tenant takes occupancy of the First Mortgage;
27.8.2 Any sale Offer Space, the Lease shall be deemed amended to include the First Offer Space as part of the Property Premises at a rental rate equal to the then applicable Basic Rent due hereunder, and Tenant’s Proportionate Share as defined in this Lease shall be adjusted by reason of the addition of such First Offer Space. The work to integrate the First Offer Space into the Premises shall be performed by Tenant for which Tenant will receive an improvement allowance from Landlord determined by pro-rating the amount originally expended per square foot for Landlord’s Work pursuant to a private power of sale under or judicial foreclosure Exhibit C over the remaining Term of the First Mortgage;
27.8.3 Any transfer of Landlord’s interest in the Property to First Mortgagee in lieu of foreclosure of the First Mortgage; orLease.
Appears in 2 contracts
Sources: Lease Agreement (Cerecor Inc.), Lease Agreement (Cerecor Inc.)
First Offer Right. The First Offer Right expressed in this Article shall terminate in the event of any sale of the Property pursuant to a private power of sale under or judicial foreclosure of the Present First Mortgage or a deed in lieu thereof, unless the First Mortgagee under the Present First Mortgage or other assignee of the fee title in the Property shall expressly agree to be bound thereby.
27.1 Landlord shall not (a) sell, transfer, assign or otherwise dispose of any partial interest in the Property or any part thereof, (b) sell, transfer, assign or otherwise dispose of any interest in the Property or encumber or pledge the Property or any portion thereof to an unrelated third partyin a manner not permitted under the First Mortgage, or (bc) sell, transfer, assign or otherwise dispose of its interest in the Property to an unrelated third party until at least fifteen forty-five (1545) days after it has given Tenant written notice (the “"Landlord’s 's Notice”") as herein provided of its intention to dispose of the Property. The Landlord’s 's Notice shall describe in reasonable detail Landlord’s determination of the Fair Market Value of the Property at which Landlord intends to sell the Property selling price (including, if the proposed consideration for such disposition is property other than cash, the Fair Market Value of such property, in Landlord’s 's opinion, as of the date of the notice), and the other terms of such proposed disposition. Tenant shall have and is hereby granted the first right and option (“"First Offer Right”") to purchase the Property in the manner, at the price and on the terms provided in the Landlord’s 's Notice. During the Term and except as required by the terms of the First Mortgage, Landlord shall not transfer, sell or convey all or any portion of the Property.
27.2 The First Offer Right may be exercised by Tenant by giving notice to Landlord at any time within ten forty-five (1045) days after receipt of the Landlord’s 's Notice.
27.3 The purchase price for the Property pursuant to exercise of the First Offer Right shall be the price stated in the Landlord’s 's Notice as the price at which Landlord proposes to sell, transfer or assign the Property; provided that (a) if all or any part of the proposed consideration for said sale, transfer or assignment is property other than cash, such portion of the purchase price to be paid by Tenant shall be based on the Fair Market Value of the Property said property as of the date of Landlord’s the Notice to be determined by appraisal in accordance with Article 28 below, and (b) if the Property is being disposed of together with other land or property, then Tenant may elect to have the consideration payable by it for the Property equal the Fair Market Value of such interest as of the date of the Landlord’s 's Notice to be determined by appraisal in accordance with the procedure provided in Article 28 below.
27.4 Contemporaneously with giving the Landlord’s 's Notice, Landlord shall provide a title insurance commitment for the Property with a then-current effective date. If such commitment reflects any matter materially and adversely affecting title to the Property in addition to the Permitted Exceptions (other than this Lease, a First Mortgage, Lease and any encumbrances created on or after the date hereof by Tenant or those claiming by, through or under Tenant or with Tenant’s 's consent), then Tenant may give Landlord written notice of such matter. If Tenant gives Landlord such notice, Landlord use reasonable efforts to cause such matter to be removed and corrected of record within said ten thirty (1030) days of receipt of Tenant’s 's notice. If Landlord fails to do so within said thirty (30) days, Tenant may at its option (a) attempt to cause such encumbrances to be removed, (b) proceed to closeclose without waiving any rights to damages hereunder, or (c) terminate the agreement formed by exercise of the First Offer Right by giving written notice thereof to Landlord, without such termination releasing Landlord from liability for damages hereunder. If Tenant elects alternative (a) above, closing shall be postponed until the encumbrances in question are removed and, if Tenant is unable within a further period of ten sixty (1060) days to cause such encumbrances to be removed, Tenant may then elect either alternative (b) or (c) above. Landlord and Tenant hereby agree that the Term after the closing shall be extended as may be necessary to accommodate both Landlord's and Tenant's cure periods and the appraisal process provided in Article 28, as applicable. No such postponement shall alter the purchase price. All costs and expenses incurred by Tenant in causing or attempting to cause such encumbrances to be removed, including reasonable attorneys fees, shall be payable by Landlord.
27.5 Subject to postponement pursuant to Section 27.4, Landlord shall convey the Property to Tenant on the first business day occurring thirty (30) days after the date Tenant exercises the First Offer Right at Landlord’s 's main offices. The deed shall be in the usual, proper limited warranty form for recording and registration, subject only to Permitted Exceptions and the other matters permitted pursuant to Section 27.4, and shall be accompanied by all documents necessary to allow the deed to be recorded. Landlord shall pay any state deed tax or revenue stamps or other transfer tax. Landlord shall pay any prepayment penalty or provision payable under the First Mortgage if the First Mortgage is satisfied in connection with the closing. Tenant shall pay any assumption fee payable under the First Mortgage in connection with such closing if Tenant assumes the First Mortgage. The purchase price (less the unpaid principal balance of the First Mortgage if assumed (subject to the terms thereof) by Tenant at the closing) shall be payable by wire transfer or other readily available funds. This Lease and all of the terms and provisions hereof shall remain in full force and effect until the purchase has closed, except as otherwise provided herein. Notwithstanding anything to the contrary in this Article 27, to the extent Tenant (subject to the terms of the First Mortgage) does not assume the First Mortgage, Landlord shall discharge the First Mortgage and all documents and agreements associated therewith at the closing.
27.6 If Tenant fails to exercise the First Offer Right within the ten forty-five (1045) day period provided in Section 27.2, Landlord shall be free to sell the Property free from the First Offer Right but subject to this Lease on the same price and terms provided in the Landlord’s 's Notice for a period of one hundred eighty (180) days following the expiration of such ten forty-five (1045) day period. If Landlord does not close upon the transfer of the Property within such one hundred eighty (180) day period on substantially the same terms as those provided in the Landlord’s 's Notice, then the First Offer Right shall revive and Landlord shall be obligated to re-offer the Property to Tenant in accordance with Section 27.1 prior to any sale, transfer or disposition of the same. As used in this Section 27.6, “"substantially the same” " terms shall mean that the purchase price pursuant to which Landlord proposes to sell the Property is not less than ninety-five percent (95%) of that provided in the Landlord’s Notice, adjusted for any difference in treatment of closing costs, 's Notice and the terms are otherwise the same terms as provided in the Landlord’s 's Notice, provided that the provision of representations, warranties or other comfort to a third party purchaser, to the extent they relate to matters which such third party purchaser, not like Tenant having been in possession of and having knowledge of the Property, may require, shall not cause such transaction not to be on the same terms. Tenant shall, within five (5) days after Landlord’s 's request therefore, deliver an instrument in form reasonably satisfactory to Landlord confirming the provisions of this Section 27.6, but no such instrument shall be necessary to make the provisions hereof effective.
27.7 If Tenant does not timely exercise its First Offer Right and the Property is transferred to a third party, Tenant will attorn to such third party as Landlord so long as such third party and Landlord notify Tenant in writing of such transfer.
27.8 Notwithstanding anything to the contrary contained herein, the provisions of this Article 27 shall not apply to or prohibit the following:
27.8.1 The giving or granting of the First Mortgage;
27.8.2 Any sale of the Property pursuant to a private power of sale under or judicial foreclosure of the First Mortgage;
27.8.3 Any transfer of Landlord’s 's interest in the Property to First Mortgagee in lieu of foreclosure of the First Mortgage; or
Appears in 1 contract
First Offer Right. 27.1 Landlord During the Renewed Sublease Term, provided that Sublessee is EnvoyWorldWide, Inc. and there is no default under this Sublease beyond any applicable notice or grace period, if any, Sublessee shall not have a one-time right of first offer upon only one of the adjoining premises listed below the (a“First Offer Space”) sellsubject to their respective terms and conditions. In such an event, transfer, assign or otherwise dispose of any partial interest in the Property or any part thereof to an unrelated third party, or (b) sell, transfer, assign or otherwise dispose of its interest in the Property to an unrelated third party until at least fifteen (15) days after it has given Tenant Sublessor shall give written notice to Sublessee of the availability of the First Offer Space prior to offering or advertising such space to any other party. On or before the fifth (5th) business day after Sublessee’s receipt of such notice, time being of the essence thereof; Sublessee shall have the right (the “Landlord’s Notice”) as herein provided of its intention to dispose of the Property. The Landlord’s Notice shall describe in reasonable detail Landlord’s determination of the Fair Market Value of the Property at which Landlord intends to sell the Property (including, if the proposed consideration for such disposition is property other than cash, the Fair Market Value of such property, in Landlord’s opinion, as of the date of the notice), and the other terms of such proposed disposition. Tenant shall have and is hereby granted the first right and option (“First Offer Right”) to purchase the Property in the manner, at the price and on the terms provided in the Landlord’s Notice. During the Term and except as required by the terms of the First Mortgage, Landlord shall not transfer, sell or convey all or any portion of the Property.
27.2 The First Offer Right may be exercised by Tenant by giving send Sublessor a notice stating that Sublessee elects to Landlord at any time within ten (10) days after receipt of the Landlord’s Notice.
27.3 The purchase price for the Property pursuant to exercise of rent the First Offer Right shall be Space. In the price stated in the Landlord’s Notice as the price at which Landlord proposes to sell, transfer or assign the Property; provided that (a) if all or any part event of the proposed consideration for said sale, transfer or assignment is property other than cash, such portion of the purchase price to be paid by Tenant shall be based on the Fair Market Value of the Property as of the date of Landlord’s Notice to be determined by appraisal in accordance with Article 28 below, and (b) if the Property is being disposed of together with other land or property, then Tenant may elect to have the consideration payable by it for the Property equal the Fair Market Value exercise of such interest as First Offer Right, the terms and conditions of the date of Landlord’s Notice to be determined by appraisal in accordance with the procedure provided in Article 28 below.
27.4 Contemporaneously with giving the Landlord’s Notice, Landlord this Sublease shall provide a title insurance commitment for the Property with a then-current effective date. If such commitment reflects any matter materially and adversely affecting title apply to the Property in addition to the Permitted Exceptions (other than this Lease, a First Mortgage, and any encumbrances created on or after the date hereof by Tenant or those claiming by, through or under Tenant or with Tenant’s consent), then Tenant may give Landlord written notice lease of such matter. If Tenant gives Landlord such notice, Landlord use reasonable efforts to cause such matter to be removed and corrected of record within said ten (10) days of receipt of Tenant’s notice. If Landlord fails to do so within said thirty (30) days, Tenant may at its option (a) attempt to cause such encumbrances to be removed, (b) proceed to close, or (c) terminate space except that the agreement formed by exercise of the First Offer Right by giving written notice thereof to Landlord, without such termination releasing Landlord from liability for damages hereunder. If Tenant elects alternative (a) above, closing shall be postponed until the encumbrances in question are removed and, if Tenant is unable within a further period of ten (10) days to cause such encumbrances to be removed, Tenant may then elect either alternative (b) or (c) above. All costs and expenses incurred by Tenant in causing or attempting to cause such encumbrances to be removed, including reasonable attorneys fees, shall be Minimum Rent payable by Landlord.
27.5 Subject to postponement pursuant to Section 27.4, Landlord shall convey the Property to Tenant on the first business day occurring thirty (30) days after the date Tenant exercises the 3 for such First Offer Right at Landlord’s main offices. The deed Space shall be adjusted at that time to reflect the then current lease rate (on a per square foot basis) paid by Sublessor to Computervision. In addition, should Sublessee exercise such First Offer Right, Sublessee’s option to extend this Sublease described in the usual, proper limited warranty form for recording and registration, subject only to Permitted Exceptions and the other matters permitted pursuant to Section 27.4, and 25 shall be accompanied by all documents necessary to allow the deed to be recorded. Landlord shall pay deemed exercised without any state deed tax additional notice or revenue stamps or other transfer tax. Landlord shall pay any prepayment penalty or provision payable under the First Mortgage if the First Mortgage is satisfied in connection with the closing. Tenant shall pay any assumption fee payable under the First Mortgage in connection with such closing if Tenant assumes the First Mortgage. The purchase price (less the unpaid principal balance of the First Mortgage if assumed (subject to the terms thereof) by Tenant at the closing) shall be payable by wire transfer or other readily available funds. This Lease and all of the terms and provisions hereof shall remain in full force and effect until the purchase has closedagreement required, except as otherwise provided herein. Notwithstanding anything to the contrary in this Article 27, to the extent Tenant (subject to the terms of the First Mortgage) does not assume the First Mortgage, Landlord shall discharge the First Mortgage and all documents and agreements associated therewith at the closing.
27.6 If Tenant fails that Sublessee’s failure to exercise the First Offer Right within the ten (10) day period provided shall in Section 27.2, Landlord no way invalidate or otherwise affect its option to extend. The First Offer Space shall be free any one of the following adjoining premises:
(a) The premises adjacent to sell the Property free from the First Offer Right but subject to this Lease Sublease Premises on the same price and first floor measuring 4,966 rentable square feet which is presently subleased to Schwabel Corporation (“Schwabel Space”) which will become available on April 1, 2005 pursuant to the terms provided in the Landlord’s Notice for a period of one hundred eighty (180) days following the expiration of such ten (10) day period. If Landlord does sublease, provided, however, that such right of first offer shall not close upon be available to the transfer of the Property within such one hundred eighty (180) day Sublessee only if Schwabel Corporation decides to renew its sublease for an additional period on substantially the same terms as those provided in the Landlord’s Notice, then the First Offer Right shall revive and Landlord shall be obligated to re-offer the Property to Tenant in accordance with Section 27.1 prior to any sale, transfer or disposition of the same. As used in this Section 27.6, “substantially the same” terms shall mean that the purchase price pursuant to which Landlord proposes to sell the Property is exceeding not less than ninety-five percent six (95%6) of that provided in the Landlord’s Notice, adjusted for any difference in treatment of closing costs, and the terms are otherwise the same terms as provided in the Landlord’s Notice, provided that the provision of representations, warranties or other comfort to a third party purchaser, months.
(b) The premises adjacent to the extent they relate Sublease Premises on the first floor measuring 3,674 rentable square feet which is presently subleased to matters which Veroxity Technology Partners, such third party purchasersublease having a scheduled termination date of October 15, not like Tenant having been in possession of 2005 without renewal and having knowledge of the Propertyvacancy after October 15, may require, 2005. Sublessor shall not cause such transaction renew or extend the sublease of Veroxity Technology Partners unless the Schwabel Space has been made available to Sublessee and Sublessee has elected not to be on the same terms. Tenant shall, within five (5) days after Landlord’s request therefore, deliver an instrument in form reasonably satisfactory to Landlord confirming the provisions of this Section 27.6, but no lease such instrument shall be necessary to make the provisions hereof effectivespace.
27.7 If Tenant does not timely exercise its First Offer Right and the Property is transferred to a third party, Tenant will attorn to such third party as Landlord so long as such third party and Landlord notify Tenant in writing of such transfer.
27.8 Notwithstanding anything to the contrary contained herein, the provisions of this Article 27 shall not apply to or prohibit the following:
27.8.1 The giving or granting of the First Mortgage;
27.8.2 Any sale of the Property pursuant to a private power of sale under or judicial foreclosure of the First Mortgage;
27.8.3 Any transfer of Landlord’s interest in the Property to First Mortgagee in lieu of foreclosure of the First Mortgage; or
Appears in 1 contract
Sources: Sub Sublease (Varolii CORP)
First Offer Right. 27.1 Tenant shall have a one time right of first offer (the “Right of First Offer”) to lease the entire rentable area of the twenty-fourth (24th) floor of the Building (the “First Offer Space”) for a term commencing on Landlord’s delivery of the First Offer Space to Tenant, and ending on the expiration or earlier termination of the Lease as applicable to the Premises then demised thereunder, if the First Offer Space shall first become “available for lease” as of a date occurring during the period (the “First Offer Period”) commencing on the First Offer Commencement Date (as defined below) and ending on January 31, 2014; provided, however, that if as of January 31, 2014 Landlord shall not have entered into a lease commencing on or after February 1, 2015 with any party (a) sell, transfer, assign or otherwise dispose of any partial interest in the Property or any part thereof to an unrelated third party, or (b) sell, transfer, assign or otherwise dispose of its interest in the Property to an unrelated third party until at least fifteen (15) days after it has given Tenant written notice (the “Landlord’s Notice”) as herein provided of its intention to dispose of the Property. The Landlord’s Notice shall describe in reasonable detail Landlord’s determination of the Fair Market Value of the Property at which Landlord intends to sell the Property (including, if the proposed consideration for such disposition is property other than cash, the Fair Market Value of such property, in Landlord’s opinion, as of the date of the notice), and the other terms of such proposed disposition. Tenant shall have and is hereby granted the first right and option (“First Offer Right”Tenant) to purchase the Property in the manner, at the price and on the terms provided in the Landlord’s Notice. During the Term and except as required by the terms of the First Mortgage, Landlord shall not transfer, sell or convey for all or any portion of the Property.
27.2 Existing Premises or the Additional Premises, then the First Offer Period shall be extended to end on such first date, if any, as Landlord shall enter into any such lease, but in no event shall the First Offer Period extend beyond the New Expiration Date. The “First Offer Commencement Date” shall mean the date of this Amendment. The First Offer Right may Space shall not be exercised by Tenant by giving notice deemed “available for lease” if the tenant under an expiring lease of such space desires to Landlord at renew or extend its lease (whether pursuant to a right or option or pursuant to new arrangements entered into with Landlord) or if any time within ten (10) days after receipt tenant of the Building exercises an option or right of first offer or refusal or other right to lease such space, which option or right has been granted prior to the date of this Amendment. After Landlord has notice that the First Offer Space will become available for lease, Landlord shall notify Tenant in writing of such availability (“Landlord’s ROFO Notice.
27.3 The purchase price for ”) prior to leasing the Property pursuant space to exercise any other party, which notice shall State the actual or estimated availability date of the First Offer Right Space and which date shall be the price stated in the Landlord’s Notice as the price at which Landlord proposes to sell, transfer or assign the Property; provided that (a) if all or any part of the proposed consideration for said sale, transfer or assignment is property other than cash, such portion of the purchase price to be paid by Tenant shall be based on the Fair Market Value of the Property as of the date of Landlord’s Notice to be determined by appraisal in accordance with Article 28 below, and (b) if the Property is being disposed of together with other land or property, then Tenant may elect to have the consideration payable by it for the Property equal the Fair Market Value of such interest as of the date of Landlord’s Notice to be determined by appraisal in accordance with the procedure provided in Article 28 below.
27.4 Contemporaneously with giving the Landlord’s Notice, Landlord shall provide a title insurance commitment for the Property with a then-current effective date. If such commitment reflects any matter materially and adversely affecting title to the Property in addition to the Permitted Exceptions (other than this Lease, a First Mortgage, and any encumbrances created on or after the date hereof by Tenant or those claiming by, through or under Tenant or with Tenant’s consent), then Tenant may give Landlord written notice of such matter. If Tenant gives Landlord such notice, Landlord use reasonable efforts to cause such matter to be removed and corrected of record within said ten (10) days of receipt of Tenant’s notice. If Landlord fails to do so within said thirty (30) days, Tenant may at its option (a) attempt to cause such encumbrances to be removed, (b) proceed to close, or (c) terminate the agreement formed by exercise of the First Offer Right by giving written notice thereof to Landlord, without such termination releasing Landlord from liability for damages hereunder. If Tenant elects alternative (a) above, closing shall be postponed until the encumbrances in question are removed and, if Tenant is unable within a further period of ten (10) days to cause such encumbrances to be removed, Tenant may then elect either alternative (b) or (c) above. All costs and expenses incurred by Tenant in causing or attempting to cause such encumbrances to be removed, including reasonable attorneys fees, shall be payable by Landlord.
27.5 Subject to postponement pursuant to Section 27.4, Landlord shall convey the Property to Tenant on the first business day occurring thirty (30) days after the date Tenant exercises the First Offer Right at Landlord’s main offices. The deed shall be in the usual, proper limited warranty form for recording and registration, subject only to Permitted Exceptions and the other matters permitted pursuant to Section 27.4, and shall be accompanied by all documents necessary to allow the deed to be recorded. Landlord shall pay any state deed tax or revenue stamps or other transfer tax. Landlord shall pay any prepayment penalty or provision payable under the First Mortgage if the First Mortgage is satisfied in connection with the closing. Tenant shall pay any assumption fee payable under the First Mortgage in connection with such closing if Tenant assumes the First Mortgage. The purchase price (less the unpaid principal balance of the First Mortgage if assumed (subject to the terms thereof) by Tenant at the closing) shall be payable by wire transfer or other readily available funds. This Lease and all of the terms and provisions hereof shall remain in full force and effect until the purchase has closed, except as otherwise provided herein. Notwithstanding anything to the contrary in this Article 27, to the extent Tenant (subject to the terms of the First Mortgage) does not assume the First Mortgage, Landlord shall discharge the First Mortgage and all documents and agreements associated therewith at the closing.
27.6 If Tenant fails to exercise the First Offer Right within the ten (10) day period provided in Section 27.2, Landlord shall be free to sell the Property free from the First Offer Right but subject to this Lease on the same price and terms provided in the Landlord’s Notice for a period of least one hundred eighty (180) days following from the date of Land lord’s ROFO Notice; provided, however, that Landlord shall have no obligation to deliver any such availability notice and Tenant shall have no rights pursuant to this Paragraph 10 (i) prior to the First Offer Commencement Date, or (ii) prior to one (1) year prior to the estimated availability date, or (iii) if the estimated availability date is after the expiration of such the First Offer Period, or (iv) as to less than all of the rentable area on the twenty-fourth (24th) floor of the Building. For a period of ten (10) day period. If Landlord does not close upon the transfer Business Days after receipt of the Property within such one hundred eighty (180) day period on substantially the same terms as those provided in the Landlord’s ROFO Notice, then Tenant shall have a right to elect to lease the First Offer Right shall revive Space in its entirety (and Landlord shall be obligated to re-offer the Property to Tenant not in accordance with Section 27.1 prior to any sale, transfer or disposition of the samepart). As used in this Section 27.6, “substantially the same” terms shall mean that the purchase price pursuant to which Landlord proposes to sell the Property is not less than ninety-five percent (95%) of that provided in the Landlord’s Notice, adjusted for any difference in treatment of closing costs, and the terms are otherwise the same terms as provided in the Landlord’s Notice, provided that the provision of representations, warranties or other comfort to a third party purchaser, to the extent they relate to matters which such third party purchaser, not like Tenant having been in possession of and having knowledge of the Property, may require, shall not cause such transaction not to be on the same terms. Tenant shall, within five (5) days after Landlord’s request therefore, deliver an instrument in form reasonably satisfactory to Landlord confirming the provisions of this Section 27.6, but no such instrument shall be necessary to make the provisions hereof effective.
27.7 If Tenant does not timely exercise its the Right of First Offer when the First Offer Space offered to Tenant in accordance with the foregoing, the Right of First Offer shall expire and the Property is transferred to a third partybe of no force or effect, Tenant will attorn shall have no further rights pursuant to such this Paragraph 10, and Landlord shall have the right to lease (and re-lease) the First Offer Space to any third party or parties for a term and on such other conditions as Landlord so long may determine in Landlord’s sole discretion. For the avoidance of doubt, Landlord and Tenant acknowledge and agree that pursuant to the preceding provisions, Tenant’s Right of First Offer shall not apply, and Tenant shall have no right to lease the First Offer Space or to extend the term of the Lease as such third set forth below by reason thereof, if the First Offer Space Target Delivery Date (as defined below) is on or after February 1, 2014 and prior to Landlord sending Tenant Landlord’s ROFO Notice, Landlord shall enter into a lease with any party and (other than Tenant) with a commencement date on or after February 1, 2015 for all or any portion of the Existing Premises or the Additional Premises. If Tenant exercises the Right of First Offer, Landlord notify shall use reasonable efforts to deliver the First Offer Space to Tenant in writing the condition required by Paragraph 10.c. below on or about the anticipated delivery date set forth in Landlord’s ROFO Notice (the “First Offer Space Target Delivery Date”). Tenant agrees that if Landlord is unable to deliver Tenant possession of such transfer.
27.8 Notwithstanding anything to First Offer Space on the contrary contained hereinFirst Offer Space Target Delivery Date, because the provisions of this Article 27 shall not apply to or prohibit the following:
27.8.1 The giving or granting then existing occupants of the First Mortgage;
27.8.2 Any sale of Offer Space shall hold over, or delivery is delayed for any other reason beyond Landlord’s reasonable control, Landlord shall not be liable for any damage thereby, nor shall the Property pursuant to a private power of sale under Lease or judicial foreclosure Tenant’s lease of the First Mortgage;
27.8.3 Any transfer Offer Space or any portion thereof be void or voidable, but the term of Landlord’s interest in the Property Lease shall not commence as to the First Mortgagee in lieu of foreclosure Offer Space until the date (the “First Offer Space Commencement Date”) Landlord delivers possession of the First MortgageOffer Space to Tenant in the condition required by Paragraph 10.c. below. Notwithstanding the foregoing, if Landlord does not deliver the First Offer Space to Tenant in the condition required by Paragraph 10.c. below within ninety (90) days after the First Offer Space Target Delivery Date, as such date shall be extended for delays in the delivery date caused by Force Majeure (such date, as so extended, the “ROFO Trigger Date”) then Tenant may terminate this Amendment as respects the First Offer Space (only) upon written notice to Landlord given within ten (10) Business Days after the ROFO Trigger Date; orprovided, however, that Tenant’s termination notice shall be void and of no force or effect if the delivery date shall occur within ten (10) Business Days after Landlord’s receipt of Tenant’s termination notice. The foregoing right of Tenant to terminate this Amendment as respects the First Offer Space (only) shall be Tenant’s sole remedy for such delay in delivery of the First Offer Space, except that Landlord shall promptly return to Tenant the additional Security Deposit made by Tenant on account of the First Offer Space pursuant to Paragraph 10.d. below.
Appears in 1 contract
Sources: Office Lease (Marin Software Inc)
First Offer Right. 27.1 Landlord shall not (a) sell, transfer, assign or otherwise dispose Tenant’s Right of any partial interest First Offer as set forth in the Property or any part thereof to an unrelated third party, or (b) sell, transfer, assign or otherwise dispose of its interest in the Property to an unrelated third party until at least fifteen (15) days after it has given Tenant written notice (the “Landlord’s Notice”) as herein provided of its intention to dispose Paragraph 10 of the Property. The Landlord’s Notice shall describe in reasonable detail Landlord’s determination of the Fair Market Value of the Property at which Landlord intends to sell the Property (including, if the proposed consideration for such disposition First Amendment is property other than cash, the Fair Market Value of such property, in Landlord’s opinion, as of the date of the notice)hereby deleted, and in lieu thereof Tenant shall have the other terms Right of such proposed dispositionFirst Offer hereinafter set forth in this Paragraph 8. Tenant shall have a one-time right of first offer (the “Right of First Offer”) to lease the entire rentable area of each of the eighth (8th), twenty-fourth (24th) and is hereby granted twenty-eighth (28th) floors of the first right and option Building (each referred to herein as the “First Offer RightSpace”) to purchase the Property in the manner, at the price and for a term commencing on the terms provided in the Landlord’s Notice. During the Term and except as required by the terms of the First Mortgage, Landlord shall not transfer, sell or convey all or any portion of the Property.
27.2 The First Offer Right may be exercised by Tenant by giving notice to Landlord at any time within ten (10) days after receipt of the Landlord’s Notice.
27.3 The purchase price for the Property pursuant to exercise delivery of the First Offer Right shall be Space to Tenant, and ending on the price stated in the Landlord’s Notice as the price at which Landlord proposes to sell, transfer expiration or assign the Property; provided that (a) if all or any part earlier termination of the proposed consideration Lease as applicable to the Premises then demised thereunder, if the First Offer Space shall become “available for said salelease” and delivery to Tenant as of a date occurring during the period (the “First Offer Period”) commencing on the First Offer Commencement Date (as defined below) and ending on the date that is one (1) year prior to the New Expiration Date. The “First Offer Commencement Date” shall mean April 1, transfer 2015. The First Offer Space shall not be deemed “available for lease” if the tenant under an expiring lease of such space desires to renew or assignment is property other than cash, such portion extend its lease (whether pursuant to a right or option or pursuant to new arrangements entered into with Landlord) or if any tenant of the purchase price Building exercises an option or right of first offer or refusal or other right to be paid by Tenant shall be based on the Fair Market Value of the Property as of lease such space, which option or right has been granted prior to the date of Landlord’s Notice to be determined by appraisal in accordance with Article 28 below, and (b) if this Amendment. After Landlord has notice that the Property is being disposed of together with other land or property, then Tenant may elect to have the consideration payable by it First Offer Space will become available for the Property equal the Fair Market Value of such interest as of the date of Landlord’s Notice to be determined by appraisal in accordance with the procedure provided in Article 28 below.
27.4 Contemporaneously with giving the Landlord’s Noticelease, Landlord shall provide a title insurance commitment for the Property with a then-current effective date. If such commitment reflects any matter materially and adversely affecting title to the Property notify Tenant in addition to the Permitted Exceptions (other than this Lease, a First Mortgage, and any encumbrances created on or after the date hereof by Tenant or those claiming by, through or under Tenant or with Tenant’s consent), then Tenant may give Landlord written notice writing of such matter. If Tenant gives Landlord such noticeavailability (“Landlord’s ROFO Notice”) prior to leasing the space to any other party, Landlord use reasonable efforts to cause such matter to be removed and corrected of record within said ten (10) days of receipt of Tenant’s notice. If Landlord fails to do so within said thirty (30) days, Tenant may at its option (a) attempt to cause such encumbrances to be removed, (b) proceed to close, which notice shall state the actual or (c) terminate the agreement formed by exercise estimated availability date of the First Offer Right by giving written notice thereof Space and the terms and conditions upon which Landlord would be willing to Landlordlease the First Offer Space to Tenant, without such termination releasing Landlord from liability for damages hereunder. If Tenant elects alternative (a) above, closing which terms and conditions shall be postponed until Landlord’s then good faith estimate of the encumbrances in question are removed andfair market rent for the First Offer Space; provided, however, that Landlord shall have no obligation to deliver any such availability notice and Tenant shall have no rights pursuant to this Paragraph 8, (i) prior to the First Offer Commencement Date, or (ii) prior to one (1) year prior to the estimated availability date, or (iii) if Tenant the estimated availability date is unable within after the expiration of the First Offer Period, or (iv) as to less than all of the rentable area on the applicable floor(s) of the First Offer Space. For a further period of ten (10) days to cause such encumbrances to be removedBusiness Days after receipt of Landlord’s ROFO Notice, Tenant may then shall have a right to elect either alternative (b) or (c) above. All costs and expenses incurred by Tenant in causing or attempting to cause such encumbrances to be removed, including reasonable attorneys fees, shall be payable by Landlord.
27.5 Subject to postponement pursuant to Section 27.4, Landlord shall convey the Property to Tenant on the first business day occurring thirty (30) days after the date Tenant exercises lease all of the First Offer Right at Space identified in Landlord’s main officesROFO Notice in its entirety (and not in part). The deed shall be in the usual, proper limited warranty form for recording and registration, subject only to Permitted Exceptions and the other matters permitted pursuant to Section 27.4, and shall be accompanied by all documents necessary to allow the deed to be recorded. Landlord shall pay any state deed tax or revenue stamps or other transfer tax. Landlord shall pay any prepayment penalty or provision payable under the First Mortgage if the First Mortgage is satisfied in connection with the closing. Tenant shall pay any assumption fee payable under the First Mortgage in connection with such closing if Tenant assumes the First Mortgage. The purchase price (less the unpaid principal balance of the First Mortgage if assumed (subject to the terms thereof) by Tenant at the closing) shall be payable by wire transfer or other readily available funds. This Lease and all of the terms and provisions hereof shall remain in full force and effect until the purchase has closed, except as otherwise provided herein. Notwithstanding anything to the contrary in this Article 27, to the extent Tenant (subject to the terms of the First Mortgage) does not assume the First Mortgage, Landlord shall discharge the First Mortgage and all documents and agreements associated therewith at the closing.
27.6 If Tenant fails to exercise the First Offer Right within the ten (10) day period provided in Section 27.2, Landlord shall be free to sell the Property free from the First Offer Right but subject to this Lease on the same price and terms provided in the Landlord’s Notice for a period of one hundred eighty (180) days following the expiration of such ten (10) day period. If Landlord does not close upon the transfer of the Property within such one hundred eighty (180) day period on substantially the same terms as those provided in the Landlord’s Notice, then the First Offer Right shall revive and Landlord shall be obligated to re-offer the Property to Tenant in accordance with Section 27.1 prior to any sale, transfer or disposition of the same. As used in this Section 27.6, “substantially the same” terms shall mean that the purchase price pursuant to which Landlord proposes to sell the Property is not less than ninety-five percent (95%) of that provided in the Landlord’s Notice, adjusted for any difference in treatment of closing costs, and the terms are otherwise the same terms as provided in the Landlord’s Notice, provided that the provision of representations, warranties or other comfort to a third party purchaser, to the extent they relate to matters which such third party purchaser, not like Tenant having been in possession of and having knowledge of the Property, may require, shall not cause such transaction not to be on the same terms. Tenant shall, within five (5) days after Landlord’s request therefore, deliver an instrument in form reasonably satisfactory to Landlord confirming the provisions of this Section 27.6, but no such instrument shall be necessary to make the provisions hereof effective.
27.7 If Tenant does not timely exercise its the Right of First Offer when the First Offer Space offered to Tenant in accordance with the foregoing, the Right of First Offer shall expire and be of no force or effect as respects the Property is transferred First Offer Space offered to a third partyTenant in Landlord’s ROFO Notice, Tenant will attorn shall have no further rights pursuant to this Paragraph 8 with respect to such First Offer Space, and Landlord shall have the right to lease (and re-lease) such First Offer Space to any third party or parties for a term and on such other conditions as Landlord so long as may determine in Landlord’s sole discretion; provided, however, that if Landlord shall not enter into a lease for such third party and Landlord notify Tenant in writing First Offer Space within one (1) year after the date of such transfer.
27.8 Notwithstanding anything to the contrary contained hereinLandlord’s ROFO Notice, the provisions of this Article 27 Paragraph 8 shall not apply anew to such First Offer Space prior to Landlord leasing the same to any other party. If Tenant exercises the Right of First Offer, Landlord shall use reasonable efforts to deliver the First Offer Space to Tenant in the condition required by Paragraph 8.c. below on or prohibit about the following:
27.8.1 The giving or granting anticipated delivery date set forth in Landlord’s ROFO Notice (the “First Offer Space Target Delivery Date”). Tenant agrees that if Landlord is unable to deliver Tenant possession of First Offer Space on the First Offer Space Target Delivery Date, because the then existing occupants of the First Mortgage;
27.8.2 Any sale of Offer Space shall hold over, or delivery is delayed for any other reason beyond Landlord’s reasonable control, Landlord shall not be liable for any damage thereby, nor shall the Property pursuant to a private power of sale under Lease or judicial foreclosure Tenant’s lease of the First Mortgage;
27.8.3 Any transfer Offer Space or any portion thereof be void or voidable, but the term of Landlord’s interest in the Property Lease shall not commence as to the First Mortgagee in lieu of foreclosure Offer Space until the date (the “First Offer Space Commencement Date”) Landlord delivers possession of the First MortgageOffer Space to Tenant in the condition required by Paragraph 8.c. below. Notwithstanding the foregoing, if Landlord does not deliver any First Offer Space to Tenant within one hundred twenty (120) days after the First Offer Space Target Delivery Date applicable thereto, as such date shall be extended for delays in the delivery date caused by Force Majeure (such date, as so extended, the “ROFO Trigger Date”) then Tenant may terminate this Amendment as respects such First Offer Space (only) upon written notice to Landlord given within ten (10) Business Days after the ROFO Trigger Date; orprovided, however, that Tenant’s termination notice shall be void and of no force or effect if the delivery date shall occur within ten (10) Business Days after Landlord’s receipt of Tenant’s termination notice. The foregoing right of Tenant to terminate this Amendment as respects such First Offer Space (only) shall be Tenant’s sole remedy for such delay in delivery of such First Offer Space, except that Landlord shall cooperate with Tenant to reverse the increase in the amount of the Letter of Credit made on account of the First Offer Space pursuant to Paragraph 8.d. below
Appears in 1 contract
Sources: Office Lease (Marin Software Inc)
First Offer Right. 27.1 Landlord shall not (a) sell, transfer, assign or otherwise dispose of any partial interest in the Property or any part thereof to an unrelated third party, or (b) sell, transfer, assign or otherwise dispose of its interest in the Property to an unrelated third party until at least fifteen (15) days after it has given Tenant written notice (the “Landlord’s Notice”) as herein provided of its intention to dispose of the Property. The Landlord’s Notice shall describe in reasonable detail Landlord’s determination of the Fair Market Value fair market value of the Property at which Landlord intends to sell the Property (including, if the proposed consideration for such disposition is property other than cash, the Fair Market Value of such property, in Landlord’s opinion, as of the date of the notice), and the other terms of such proposed disposition. Tenant shall have and is hereby granted the first right and option (“First Offer Right”) to purchase the Property in the manner, at the price and on the terms provided in the Landlord’s Notice. During the Term of this Lease and except as required by the terms of the First Mortgage, Landlord shall not transfer, sell or convey all or any portion of any Property Location independently from the Propertyother Property Locations.
27.2 The First Offer Right may be exercised by Tenant by giving notice to Landlord at any time within ten (10) days after receipt of the Landlord’s Notice.
27.3 The purchase price for the Property pursuant to exercise of the First Offer Right shall be the price stated in the Landlord’s Notice as the price at which Landlord proposes to sell, transfer or assign the Property; provided that (a) if all or any part of the proposed consideration for said sale, transfer or assignment is property other than cash, such portion of the purchase price to be paid by Tenant shall be based on the Fair Market Value of the Property said property as of the date of Landlord’s the Notice to be determined by appraisal in accordance with Article 28 below, and (b) if the Property is being disposed of together with other land or property, then Tenant may elect to have the consideration payable by it for the Property equal the Fair Market Value of such interest as of the date of the Landlord’s Notice to be determined by appraisal in accordance with the procedure provided in Article 28 below.
27.4 Contemporaneously with giving the Landlord’s Notice, Landlord shall provide a title insurance commitment for the Property with a then-current effective date. If such commitment reflects any matter materially and adversely affecting title to the Property in addition to the Permitted Exceptions (other than this Lease, a First Mortgage, and any encumbrances created on or after the date hereof by Tenant or those claiming by, through or under Tenant or with Tenant’s consent), then Tenant may give Landlord written notice of such matter. If Tenant gives Landlord such notice, Landlord use reasonable efforts to cause such matter to be removed and corrected of record within said ten (10) days of receipt of Tenant’s notice. If Landlord fails to do so within said thirty (30) days, Tenant may at its option (a) attempt to cause such encumbrances to be removed, (b) proceed to close, or (c) terminate the agreement formed by exercise of the First Offer Right by giving written notice thereof to Landlord, without such termination releasing Landlord from liability for damages hereunder. If Tenant elects alternative (a) above, closing shall be postponed until the encumbrances in question are removed and, if Tenant is unable within a further period of ten (10) days to cause such encumbrances to be removed, Tenant may then elect either alternative (b) or (c) above. All costs and expenses incurred by Tenant in causing or attempting to cause such encumbrances to be removed, including reasonable attorneys fees, shall be payable by Landlord.
27.5 Subject to postponement pursuant to Section 27.4, Landlord shall convey the Property to Tenant on the first business day occurring thirty (30) days after the date Tenant exercises the First Offer Right at Landlord’s main offices. The deed shall be in the usual, proper limited warranty form for recording and registration, subject only to Permitted Exceptions and the other matters permitted pursuant to Section 27.4, and shall be accompanied by all documents necessary to allow the deed to be recorded. Landlord shall pay any state deed tax or revenue stamps or other transfer tax. Landlord shall pay any prepayment penalty or provision payable under the First Mortgage if the First Mortgage is satisfied in connection with the closing. Tenant shall pay any assumption fee payable under the First Mortgage in connection with such closing if Tenant assumes the First Mortgage. The purchase price (less the unpaid principal balance of the First Mortgage if assumed (subject to the terms thereof) by Tenant at the closing) shall be payable by wire transfer or other readily available funds. This Lease and all of the terms and provisions hereof shall remain in full force and effect until the purchase has closed, except as otherwise provided herein. Notwithstanding anything to the contrary in this Article 27, to the extent Tenant (subject to the terms of the First Mortgage) does not assume the First Mortgage, Landlord shall discharge the First Mortgage and all documents and agreements associated therewith at the closing.
27.6 If Tenant fails to exercise the First Offer Right within the ten (10) day period provided in Section 27.2, Landlord shall be free to sell the Property free from the First Offer Right but subject to this Lease on the same price and terms provided in the Landlord’s Notice for a period of one hundred eighty (180) days following the expiration of such ten (10) day period. If Landlord does not close upon the transfer of the Property within such one hundred eighty (180) day period on substantially the same terms as those provided in the Landlord’s Notice, then the First Offer Right shall revive and Landlord shall be obligated to re-offer the Property to Tenant in accordance with Section 27.1 prior to any sale, transfer or disposition of the same. As used in this Section 27.6, “substantially the same” terms shall mean that the purchase price pursuant to which Landlord proposes to sell the Property is not less than ninety-five percent (95%) of that provided in the Landlord’s Notice, adjusted for any difference in treatment of closing costs, and the terms are otherwise the same terms as provided in the Landlord’s Notice, provided that the provision of representations, warranties or other comfort to a third party purchaser, to the extent they relate to matters which such third party purchaser, not like Tenant having been in possession of and having knowledge of the Property, may require, shall not cause such transaction not to be on the same terms. Tenant shall, within five (5) days after Landlord’s request therefore, deliver an instrument in form reasonably satisfactory to Landlord confirming the provisions of this Section 27.6, but no such instrument shall be necessary to make the provisions hereof effective.
27.7 If Tenant does not timely exercise its First Offer Right and the Property is transferred to a third party, Tenant will attorn to such third party as Landlord so long as such third party and Landlord notify Tenant in writing of such transfer.
27.8 Notwithstanding anything to the contrary contained herein, the provisions of this Article 27 shall not apply to or prohibit the following:
27.8.1 The giving or granting of the First Mortgage;
27.8.2 Any sale of the Property pursuant to a private power of sale under or judicial foreclosure of the First Mortgage;
27.8.3 Any transfer of Landlord’s interest in the Property to First Mortgagee in lieu of foreclosure of the First Mortgage; or
Appears in 1 contract
First Offer Right. 27.1 Landlord shall not (a) sell, transfer, assign or otherwise dispose of any partial interest agrees to give Tenant a First Offer Right on the adjacent space in the Property or any part thereof to an unrelated third party, or (b) sell, transfer, assign or otherwise dispose Building of its interest approximately 32,500 square feet in the Property to an unrelated third party until at least fifteen (15) days after it has given Tenant written notice Building, which is currently leased by DRS Precision Echo, Inc. and which is designated on Exhibit A hereto (the “Landlord’s Notice”) as herein provided of its intention to dispose of the Property"Offered Space"). The Landlord’s Notice shall describe in reasonable detail Landlord’s determination of the Fair Market Value of the Property at which If Landlord intends during the term of this Lease to sell the Property (including, if the proposed consideration for such disposition is property other than cash, the Fair Market Value of such property, in Landlord’s opinion, as of the date of the notice), and the other terms of such proposed disposition. Tenant shall have and is hereby granted the first right and option (“First Offer Right”) to purchase the Property in the manner, at the price and on the terms provided in the Landlord’s Notice. During the Term and except as required by the terms of the First Mortgage, Landlord shall not transfer, sell or convey lease all or any portion of the Property.
27.2 The First Offer Right may be exercised by Tenant by giving notice to Landlord at any time within ten (10) days after receipt of the Landlord’s Notice.
27.3 The purchase price for the Property pursuant to exercise of the First Offer Right shall be the price stated in the Landlord’s Notice as the price at which Landlord proposes to sell, transfer or assign the Property; provided that (a) if all or any part of the proposed consideration for said sale, transfer or assignment is property other than cash, such portion of the purchase price to be paid by Tenant shall be based on the Fair Market Value of the Property as of the date of Landlord’s Notice to be determined by appraisal in accordance with Article 28 belowOffered Space, and if Tenant is not then in default (b) if beyond the Property is being disposed of together with other land or propertyapplicable cure period, then Tenant may elect to have the consideration payable by it for the Property equal the Fair Market Value of such interest as of the date of Landlord’s Notice to be determined by appraisal but in accordance with the procedure provided in Article 28 below.
27.4 Contemporaneously with giving the Landlord’s Notice, Landlord shall provide a title insurance commitment for the Property with a then-current effective date. If such commitment reflects any matter materially and adversely affecting title to the Property in addition to the Permitted Exceptions (other no event more than this Lease, a First Mortgage, and any encumbrances created on or after the date hereof by Tenant or those claiming by, through or under Tenant or with Tenant’s consent), then Tenant may give Landlord written notice of such matter. If Tenant gives Landlord such notice, Landlord use reasonable efforts to cause such matter to be removed and corrected of record within said ten (10) days of receipt of Tenant’s notice. If Landlord fails to do so within said thirty (30) days, Tenant may at its option (a) attempt to cause such encumbrances to be removed, (b) proceed to close, or (c) terminate the agreement formed by exercise of the First Offer Right by giving written notice thereof to Landlord, without such termination releasing Landlord from liability for damages hereunder. If Tenant elects alternative (a) above, closing shall be postponed until the encumbrances in question are removed and, if Tenant is unable within a further period of ten (10) days to cause such encumbrances to be removed, Tenant may then elect either alternative (b) or (c) above. All costs and expenses incurred by Tenant in causing or attempting to cause such encumbrances to be removed, including reasonable attorneys fees, shall be payable by Landlord.
27.5 Subject to postponement pursuant to Section 27.4under this Lease, Landlord shall convey give written notice of such intention to Tenant, specifying the Property material terms on which Landlord is willing to Tenant on lease the first business day occurring thirty (30) days after the date Tenant exercises the First Offer Right at Landlord’s main offices. The deed shall be in the usual, proper limited warranty form for recording and registration, subject only Option Space to Permitted Exceptions and the other matters permitted pursuant to Section 27.4Tenant, and shall be accompanied by all documents necessary offer to allow Tenant the deed opportunity to be recorded. Landlord shall pay any state deed tax or revenue stamps or other transfer tax. Landlord shall pay any prepayment penalty or provision payable under lease the First Mortgage if Offered Space on the First Mortgage is satisfied terms specified in connection with the closingLandlord's notice. Tenant shall pay any assumption fee payable under the First Mortgage in connection with such closing if Tenant assumes the First Mortgage. The purchase price (less the unpaid principal balance of the First Mortgage if assumed (subject to the terms thereof) by Tenant at the closing) shall be payable by wire transfer or other readily available funds. This Lease and all of the terms and provisions hereof shall remain in full force and effect until the purchase has closed, except as otherwise provided herein. Notwithstanding anything to the contrary in this Article 27, to the extent Tenant (subject to the terms of the First Mortgage) does not assume the First Mortgage, Landlord shall discharge the First Mortgage and all documents and agreements associated therewith at the closing.
27.6 If Tenant fails to exercise the First Offer Right within the ten (10) day period provided in Section 27.2, Landlord shall be free to sell the Property free from the First Offer Right but subject to this Lease on the same price and terms provided in the Landlord’s Notice for a period of one hundred eighty (180) days following the expiration of such ten (10) day period. If Landlord does not close upon the transfer of the Property within such one hundred eighty (180) day period on substantially the same terms as those provided in the Landlord’s Notice, then the First Offer Right shall revive and Landlord shall be obligated to re-offer the Property to Tenant in accordance with Section 27.1 prior to any sale, transfer or disposition of the same. As used in this Section 27.6, “substantially the same” terms shall mean that the purchase price pursuant to which Landlord proposes to sell the Property is not less than ninety-five percent (95%) of that provided in the Landlord’s Notice, adjusted for any difference in treatment of closing costs, and the terms are otherwise the same terms as provided in the Landlord’s Notice, provided that the provision of representations, warranties or other comfort to a third party purchaser, to the extent they relate to matters which such third party purchaser, not like Tenant having been in possession of and having knowledge of the Property, may require, shall not cause such transaction not to be on the same terms. Tenant shall, within have five (5) days after the date of giving of such notice by Landlord in which to accept such offer by written notice to Landlord’s request therefore. Upon such acceptance by Tenant, deliver the Offered Space shall be leased to Tenant on the terms set forth in Landlord's notice and on the additional terms and provisions set forth herein (except to the extent inconsistent with the terms set forth in Landlord's notice) and the parties shall promptly execute an instrument in form reasonably satisfactory amendment to Landlord confirming this Lease adding the Offered Space to the Leased Premises and making any appropriate amendments to provisions of this Section 27.6, but no such instrument shall be necessary Lease to make reflect different rent and other obligations applicable to the provisions hereof effective.
27.7 Offered Space under the terms of the Landlord's notice. If Tenant does not timely exercise its First Offer Right and accept Landlord's offer within the Property is transferred allotted time, Landlord shall thereafter have the right to lease the Offered Space to a third party, Tenant will attorn at any time after Tenant's failure to such third party as accept Landlord's offer, at a minimum rental and on other terms and conditions determined by Landlord so long as such third party (which may be more or less favorable to the tenant than the minimum rental and Landlord notify other terms offered to Tenant in writing Landlord's notice). Tenant's First Refusal Rights shall be subordinate to any rights of such transfer.
27.8 Notwithstanding anything DRS Precision Echo, Inc. with respect to the contrary contained herein, the provisions of this Article 27 shall not apply to or prohibit the following:
27.8.1 The giving or granting of the First Mortgage;
27.8.2 Any sale of the Property pursuant to a private power of sale under or judicial foreclosure of the First Mortgage;
27.8.3 Any transfer of Landlord’s interest in the Property to First Mortgagee in lieu of foreclosure of the First Mortgage; orOffered Space.
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Sources: Lease (Aviron)