TENANT RIGHT OF FIRST REFUSAL TO LEASE CERTAIN SPACE EXHIBIT
EXHIBIT [INSERT APPLICABLE LETTER]
TENANT RIGHT OF FIRST REFUSAL TO LEASE CERTAIN SPACE
Tenant shall have an ongoing right of first refusal (the “Right of First Refusal”) to lease the area comprising approximately ___________ Rentable Square Feet and situated on the _________________ portion of the ________ (_____) floor of the Building and not theretofore leased by Tenant pursuant to this Lease, as depicted on Schedule 1 attached hereto and made a part hereof (the “Right of First Refusal Space”). Such Right of First Refusal shall be exercisable by Tenant only if no event of default by Tenant under this Lease then exists and is continuing beyond the expiration of any notice and cure periods applicable thereto under the Lease, as of the date of submission of the Offer (as defined below) by Landlord to Tenant. If Landlord receives a bona fide offer (the “Offer”) from a prospective tenant to lease all or any part of the Right of First Refusal Space, Landlord shall give Tenant written notice of such fact, setting forth in such notice all of the material terms and conditions of such Offer. After Landlord notifies Tenant in writing of such an Offer, Tenant shall have ten (10) days to exercise the Right of First Refusal by written notice to Landlord. If Tenant exercises the Right of First Refusal, Tenant shall be required to lease all of the Right of First Refusal Space that is the subject of the Offer. If Tenant fails to notify Landlord of its election within the aforesaid ten (10) day period, Tenant shall be deemed to have waived the Right of First Refusal with respect to the Offer. Upon any exercise by Tenant of the Right of First Refusal in accordance herewith, Landlord and Tenant shall promptly execute, at the request of either, an amendment to this Lease whereby Tenant leases such space, provided that the terms of such lease of such Right of First Refusal Space shall in such event be upon the same terms and conditions as set forth in the original Lease with prorated allowances for the remaining term if this Right of First Refusal is acted upon during the first twelve (12) months of the initial Lease Term only and thereafter at the rental rate, length of term and allowances for such space shall be the rental terms as set forth in the Offer, and the amendment shall contain the other specific terms of the bona fide Offer that are inconsistent with the then terms of the Lease). If Tenant exercises the Right of First Refusal and Landlord is required, in accordance with the Offer, to construct improvements to such space, Landlord will deliver such space ten (10) days after the later to occur of: (i) the date upon which the leasehold improvements to be constructed in such space have been substantially completed in accordance with the construction drawings for such leasehold improvements; or (ii) the issuance of a certificate of occupancy or other occupancy permit, if required by applicable law, for such space. If Tenant exercises the Right of First Refusal and Tenant elects, in accordance with the Offer, to either accept such space “as-is, with all faults” or to construct improvements to such space, Landlord will deliver such space to Tenant either (1) within five (5) days after the execution of an amendment to the Lease whereby Tenant leases such space, or (2) at the time the space was to be delivered to the prospective tenant under the Offer, whichever is later. If Tenant fails or refuses to exercise such Right of First Refusal or is deemed to have waived such Right of First Refusal with respect to such space the subject of such Offer, then such Right of First Refusal shall lapse as to such then applicable third party Offer, time being of the essence with respect to the exercise thereof, and Landlord may thereafter lease the applicable space, in whole or in part, to the prospective tenant identified in such Offer on the terms set forth in the Offer or on terms for a Net Effective Rate (as defined hereinbelow) which is not lower than that offered to Tenant pursuant to the Offer by more than twenty percent (20%); it being hereby agreed that, as used herein, the term “Net Effective Rate” shall mean the actual rental rate to be received per year, on the average, during the proposed term determined by deducting from the face rental value for the term thereof the dollar value of all inducements, free rent, tenant improvements and other concessions proposed to be given. Tenant may not exercise its rights under this Exhibit if an event of default by Tenant exists and is continuing (beyond the expiration of any notice and cure period applicable thereto under the Lease) at the time of the Offer. Tenant’s rights under this Exhibit shall further terminate if the Lease or Tenant’s right to possession of the Premises is terminated. Tenant’s rights under this Exhibit shall further automatically terminate if (a) Tenant assigns any of Tenant’s interests in the Lease (except for an assignment permitted in accordance with the terms and conditions of the Lease which results in the assignee thereof receiving assignment of all of Tenant’s interests in and under the Lease and in and to the Premises) or (b) Tenant fails to timely exercise Tenant’s right of refusal in accordance with the terms and conditions of this Exhibit (time being of the essence with respect to Tenant’s exercise thereof). Notwithstanding anything to the contrary set forth in this Exhibit, it is hereby agreed that no assignee (other than an assignee who has received assignment, in accordance with all terms and conditions of the Lease, of all of Tenant’s interests in and under the Lease and in and to the Premises) or other transferee of any of Tenant’s interests in the Lease nor sublessee or other transferee of any of the Premises may exercise any of Tenant’s rights granted pursuant to this Exhibit.
RIGHT OF FIRST REFUSAL FLOORPLAN