Section 10(a) with respect to all of the space described in the Expansion Notice (Identified Expansion Space). The term of the Lease with respect to the Identified Expansion Space may not be co-terminous with the Term of the Lease with respect to the then-existing Premises. Notwithstanding anything to the contrary contained herein, in no event shall any prior work letters apply to the Identified Expansion Space. Tenant shall have 5 days following receipt of the Expansion Notice to deliver to Landlord written notification of Tenants exercise of the Expansion Right (Exercise Notice) with respect to the Identified Expansion Space. If Tenant does not deliver an Exercise Notice to Landlord within such 5 day period, then Tenant shall be deemed to have waived its rights under this Section 10(a) to lease the Identified Expansion Space, and Landlord shall have the right to lease the Identified Expansion Space to any third party on any terms and conditions acceptable to Landlord. Notwithstanding anything to the contrary contained herein, Tenant shall have no right to exercise the Expansion Right and the provisions of this Section 10(a) shall no longer apply after the date that is 12 months prior to the expiration of the Base Term if Tenant has not exercised its Extension Right pursuant to Section 40 of the Lease.
As used herein, Market Rate shall mean the rate that comparable landlords of comparable buildings have accepted in current transactions from non-equity (i.e., not being offered equity in the buildings) and nonaffiliated tenants of similar financial strength for space of comparable size, quality (including all Tenant Improvements, Alterations and other improvements) and floor height in Class A laboratory/office buildings in the Seattle area for a comparable term, with the determination of the Market Rate to take into account all relevant factors, including tenant inducements, views, parking costs, leasing commissions, allowances or concessions, if any.
b. Amended Lease. If (i) Tenant fails to timely deliver an Exercise Notice, or (ii) after the expiration of a period of 10 business days after Landlords delivery to Tenant of a lease amendment for Tenants lease of the Identified Expansion Space, no lease amendment for the Identified Expansion Space acceptable to both parties each in their sole and absolute discretion, has been executed, Tenant shall be deemed to have waived its right to lease the Identified Expansion Space.
c. Exceptions. Notwithstanding the above, the Expansion Right shall, at Landlords option, not be in effect and may not be exercised by Tenant:
(i) during any period of time that Tenant is in Default under any provision of the Lease; or
(ii) if Tenant has been in Default under any provision of the Lease 3 or more times, whether or not the Defaults are cured, during the 12 month period prior to the date on which Tenant seeks to exercise the Expansion Right.
d. Termination. The Expansion Right shall, at Landlords option, terminate and be of no further force or effect even after Tenants due and timely exercise of the Expansion Right, if, after such exercise, but prior to the commencement date of the lease of such Expansion Space, (i) Tenant fails to timely cure any default by Tenant under the Lease; (ii) Tenant has Defaulted 3 or more times during the period from the date of the exercise of the Expansion Right to the date of the commencement of the lease of the Expansion Space, whether or not such Defaults are cured, or (iii) that certain lease agreement between Tenant and Landlords affiliate, Seattle No. 12, LLC, of even date herewith, pursuant to which Tenant has agreed to lease certain premises at 1165 Eastlake Avenue East, Seattle, Washington, shall terminate.
e. Rights Personal. The Expansion Right is personal to Tenant and is not assignable without Landlords consent, which may be granted or withheld in Landlords sole discretion separate and apart from any consent by Landlord to an assignment of Tenants interest in the Lease, except in connection with a Permitted Assignment.