Common use of Right of First Offer as to Contiguous Fourth Floor Space Clause in Contracts

Right of First Offer as to Contiguous Fourth Floor Space. LESSEE, provided it is not then in default after notice and the expiration of any applicable cure period (and provided there have not been any such defaults (even if cured) more than two (2) times within any twelve (12) month period), is hereby entitled to receive advance written notice from LESSOR during the Term of this Lease (as it may be extended) that certain contiguous space on the fourth (4th) floor of the Building (the “Expansion Space”) will be offered to third parties for leasing (the “ROFO Notice”), which ROFO Notice shall set forth the “Expansion Space Market Rent” and other economic terms at which such space will be so offered. LESSEE shall be entitled to receive a ROFO Notice and to exercise its ROFO Rights as set forth below, which exercise by LESSEE shall be pre-empted and superseded only by: (x) the exercise of any existing ROFO or expansion rights as to the Expansion Space (including rights to renew or extend its lease) that have been given to other tenants in the Building; or (y) LESSOR’s right (hereby reserved to LESSOR) to lease said Expansion Space to any third parties in conjunction with the leasing of any other space in the Building. LESSEE shall have the right, within thirty (30) days from the delivery of LESSOR’s ROFO Notice, to elect to lease the Expansion Space, at the Expansion Space Market Rent and other economic terms specified in LESSOR’s notice, and otherwise on the terms of this Lease for a lease term coterminous with the Term governing the Leased Premises (but not less than thirty six (36) months) , or to negotiate with LESSOR and to execute a binding letter of intent to lease said space at a Rent and on other terms and conditions mutually agreeable to LESSOR and LESSEE (the LESSEE’s “ROFO Rights”). If LESSEE shall not elect to lease such space or if no binding letter of intent with alternate Rent and terms is executed by LESSOR and LESSEE during that thirty (30) day period, for whatever reason, then LESSOR shall be free to market and lease the space offered by the ROFO Notice to any third party, in its sole discretion and without any continuing obligation to LESSEE under this Section 36 except as set forth below. If LESSEE shall fail to elect to lease the Expansion Space offered by the ROFO Notice as aforesaid, then notwithstanding anything to the contrary contained in the preceding paragraph LESSOR may thereafter lease such space to any third party at a rent of not less than 90% of the Expansion Space Market Rent proposed to LESSEE in the applicable ROFO Notice; but if the proposed lease to any third party is less than 90% of the Expansion Space Market Rent proposed in the applicable ROFO Notice, or if LESSOR does not enter into a third party lease within three hundred sixty (360) days from the delivery of the ROFO Notice, then LESSOR shall be required to re-offer the space to LESSEE pursuant to this section. Time is of the essence in the exercise of LESSEE’s ROFO Rights as set forth above.