Extension. Provided that, at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.
Appears in 4 contracts
Samples: Consent to Sublease (Editas Medicine, Inc.), Sublease (Editas Medicine, Inc.), Sublease (Editas Medicine, Inc.)
Extension. Provided that, at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) Notwithstanding anything to the contrary in this Lease is in full force and effectAgreement, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means pursuant to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each one or more offers (each, an “Extended TermExtension Offer”) made from time to time by the Borrower to all Lenders holding Term Loans with a like maturity date or all Lenders having Revolving Credit Commitments with a like commitment termination date, in each case on a pro rata basis (based on the aggregate outstanding principal amount of such respective Term Loans or amounts of Revolving Credit Commitments) and on the same terms to each such Lender, the Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date and/or commitment termination of each such Lender’s Term Loans and/or Revolving Credit Commitments of such class, and, subject to the terms hereof, otherwise modify the terms of such Term Loans and/or Revolving Credit Commitments pursuant to the terms of the relevant Extension Offer (including by increasing the interest rate and/or fees payable in respect of such Term Loans and/or Revolving Credit Commitments (and related outstandings) and/or modifying the amortization schedule in respect of such Lender’s Term Loans) (each, an “Extension;” and each group of Term Loans or Revolving Credit Commitments, as applicable, in each case as so extended, as well as the original Term Loans and the original Revolving Credit Commitments (in each case not so extended), being a separate “tranche”). The , so long as the following terms are satisfied:
(A) no Default or Event of Default will have occurred and be continuing at the time the Extension Offer is delivered to the Lenders or at the time of such Extension;
(B) except as to interest rates, fees and final commitment termination date (which will be determined by the Borrower and set forth in the relevant Extension Offer, subject to acceptance by the applicable Lenders), the Revolving Credit Commitment of any Lender that agrees to an Extension with respect to such Revolving Credit Commitment extended pursuant to an Extension (an “Extended Term shall commence immediately following Revolving Credit Commitment”) and the end of the Original Term related outstandings will be a Revolving Credit Commitment (or the first Extended Terrarelated outstandings, as the case may be. All ) with the same terms (or terms not less favorable to existing Lenders holding Revolving Credit Commitments) as the original Revolving Credit Commitments (and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except related outstandings); provided that (i1) Tenant shall have no further right to extend the Term beyond the second borrowing and payments (except for (x) payments of interest and fees at different rates on Extended Term hereinabove providedRevolving Credit Commitments (and related outstandings), (iiy) Monthly Rent shall be as provided herein, repayments required upon the commitment termination date of the non-extending tranche of Revolving Credit Commitments and (inz) Tenant shall not repayment made in connection with a permanent repayment and termination of commitments) of Revolving Loans with respect to Extended Revolving Credit Commitments after the applicable Extension date will be entitled made on a pro rata basis with all other Revolving Credit Commitments, (2) subject to Tenant’s Construction Allowance or any other contribution Section 10.5(c), all Letters of Credit will be participated in on a pro rata basis by Landlord all Lenders with Revolving Credit Commitments (including Extended Revolving Credit Commitments) in accordance with their percentage of the Revolving Credit Commitments, (3) assignments and participations of Extended Revolving Credit Commitments and related Revolving Loans will be governed by the same assignment and participation provisions applicable to the cost of improvements or alterations other Revolving Credit Commitments and Revolving Loans and (4) at no time will there be Revolving Credit Commitments hereunder (including Extended Revolving Credit Commitments and any existing Revolving Credit Commitments) which have more than two (2) different maturity dates;
(C) except as to interest rates, fees, amortization, final maturity date, premium, required prepayment dates and participation in prepayments (which will, subject to the Premises. Tenant shall exercise its option immediately succeeding clauses (D), (E) and (F), be determined by the Borrower and set forth in the relevant Extension Offer, subject to extend this Lease for acceptance by the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”Lenders), which notice shall apply the Term Loans of any Lender that agrees to the entire Premises and shall be irrevocable. Tenant may exercise its option an Extension with respect to extend for each such Term Loans owed to it (an “Extended Term by giving Landlord a Notice Lender”) extended pursuant to Extend not later than twelve any Extension (12“Extended Term Loans”) months prior will have the same terms as the tranche of Term Loans subject to such Extension Offer (except for covenants or other provisions contained therein or other provisions contained therein applicable only to periods after the expiration then Latest Term Loan Maturity Date);
(D) the final maturity date of any Extended Term Loans will be no earlier than the then current term, time being Latest Term Loan Maturity Date of the essence. If Tenant fails Term Loans extended thereby;
(E) the Weighted Average Life to give a timely Notice Maturity of any Extended Term Loans will be no shorter than the Weighted Average Life to Extend within the time provided above, this Lease shall automatically expire at the end Maturity of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Loans extended thereby;
(F) any Extended Term by delivering Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis except for prepayments with the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent proceeds of the fair market rent for comparable laboratory space Credit Agreement Refinancing Indebtedness and in Cambridge, Massachusetts, projected as respect of the commencement an earlier maturing tranche) with non-extending tranches of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended TermTerm Loans in any mandatory prepayments hereunder, in each case also referred as specified in the respective Extension Offer;
(G) there will be no more than three (3) Extended Term Loan tranches at any time during the term of this Agreement; and
(ii) if the aggregate principal amount of Term Loans (calculated on the outstanding principal amount thereof) or Revolving Credit Commitments in respect of which a Lender will have accepted the relevant Extension Offer will exceed the maximum aggregate principal amount of Term Loans or Revolving Credit Commitments offered to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year be extended by the Borrower pursuant to such Extension Offer, then the Term Loans or Revolving Credit Commitments of such Lender will be extended ratably up to such maximum amount based on the Extended Termrespective principal or commitment amounts with respect to which such Lender have accepted such Extension Offer. With respect to all Extensions consummated by the Borrower pursuant to this Section, if that (A) such Extensions will not constitute voluntary or mandatory payments or prepayments for purposes of Sections 2.13 or 2.14 and (B) no Extension Offer is required to arrive be in any minimum amount or any minimum increment; provided that the Borrower may at fair market rentits election specify as a condition to consummating any such Extension that a minimum amount (to be determined and specified in the relevant Extension Offer in the Borrower’s sole discretion and may be waived by the Borrower) of Term Loans or Revolving Credit Commitments (as applicable) of any or all applicable tranches be tendered. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent The Administrative Agent, the Collateral Agent, the Issuing Banks and Parking Fee the Lenders hereby consent to the transactions contemplated by this Section (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Term within thirty Loans and/or Extended Revolving Credit Commitments on such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement or any other Credit Document that may otherwise prohibit or conflict with any such Extension or any other transaction contemplated by this Section.
(30iii) days No consent of any Lender, any Issuing Bank, the Collateral Agent or the Administrative Agent will be required to effectuate any Extension, other than (A) the consent of each Lender agreeing to such Extension with respect to one or more of its Term Loans and/or Revolving Credit Commitments (or a portion thereof) and (B) with respect to any Extension of the Revolving Credit Commitments, the consent of the Issuing Banks. All Extended Term Loans, Extended Revolving Credit Commitments and all obligations in respect thereof will be Obligations under this Agreement and the other Credit Documents and secured by the same Liens on the Collateral that secure all other applicable Obligations. The Lenders hereby irrevocably authorize the Administrative Agent and the Collateral Agent to enter into amendments to this Agreement and the other Credit Documents with the Borrower (on behalf of all Credit Parties) as may be necessary in order to establish new tranches or sub-tranches in respect of Term Loans or Revolving Credit Commitments so extended and such technical amendments as may be necessary in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section (any such amendment, an “Extension Amendment”). In addition, if so provided in such amendment and with the consent of the Issuing Banks, participations in Letters of Credit expiring on or after Landlord’s the applicable commitment termination date will be re-allocated from Lenders holding non-extended Revolving Credit Commitments to Lenders holding Extended Revolving Credit Commitments in accordance with the terms of such amendment; provided, however, that such participation interests will, upon receipt thereof by the relevant Lenders holding Revolving Credit Commitments, be deemed to be participation interests in respect of Tenant’s Notice such Revolving Credit Commitments and the terms of such participation interests will be adjusted accordingly. Without limiting the foregoing, in connection with any Extensions the applicable Credit Parties will (at their expense) amend (and the Collateral Agent is hereby directed by the Lenders to Extend, (but in no event amend) any Mortgage that has a maturity date prior to the last then latest maturity date for Tenant so that such maturity date referenced therein is extended to give the applicable Notice then latest maturity date (or such later date as may be advised by local counsel to Extendthe Collateral Agent). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent The Administrative Agent will promptly notify each Lender of the effectiveness of each such Extension Amendment.
(iv) In connection with respect to any Extension, the Extended Term, Landlord and Tenant shall commence negotiations to agree upon Borrower will provide the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within Administrative Agent at least five (5) days thereafterBusiness Days (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, Landlord and Tenant shall will agree to such procedures (including regarding timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each simultaneously submit case acting reasonably to accomplish the purposes of this Section 10.5(g). This Section 10.5(g) will supersede any provisions of this Section 10.5 or Section 2.17 or 10.4 to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.contrary
Appears in 3 contracts
Samples: Credit and Guaranty Agreement (Artivion, Inc.), Credit and Guaranty Agreement (Artivion, Inc.), Credit and Guaranty Agreement (Cryolife Inc)
Extension. Provided that(a) The Borrower shall, at if it wishes to extend the time Tenant elects to exercise the option herein granted and at the time Maturity Date of the commencement of Credit, make a request to each Lender by written notice given to the Extended Term (as hereinafter defined), Agent not later than 60 days prior to the Maturity Date; provided that: (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant Borrower shall not be entitled to Tenant’s Construction Allowance or make more than one such request in any other contribution by Landlord to calendar year and (ii) no such notice shall be effective unless the cost of improvements or alterations to Borrower (as defined in the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord HB Peru ARCA) has delivered a written notice of its election pursuant to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date Section 2.5 of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option HB Peru ARCA that it wishes to extend the Term "Maturity Date" (as defined in the HB Peru ARCA). Each Lender shall provide a written response to that request to the Agent within 30 days; provided that no such response shall be effective unless such Lender and/or any of its Affiliates who are Lenders (as defined in the HB Peru ARCA) under the HB Peru ARCA have collectively provided the same response (accepting or declining the proposed extension under the HB Peru ARCA) and if such notices are not the same such Lender shall be deemed to have declined such extension request under both this Lease for Agreement and the Extended Term HB Peru ARCA. Promptly thereafter, the Agent shall notify the Borrower of the response of the Lenders, and shall include the names of all Declining Lenders (such notice, the "Accepting Lender Notice").
(b) If all of the Lenders agree to extend the Maturity Date, the Maturity Date shall be extended by delivering 365 days from the then applicable Maturity Date.
(c) If the aggregate amount of the Commitments of the Accepting Lenders is less than 66⅔% of the aggregate Commitments of all Lenders then in effect, the Maturity Date shall not be extended.
(d) If the aggregate amount of the Commitments of the Accepting Lenders are equal to or greater than 66⅔% but less than 100% of the aggregate Commitments of all Lenders, unless the Borrower elects not to extend the Maturity Date by giving a further written notice to the Agent to that effect within 10 days after the Agent notifies the Borrower of the Lenders' response, the Maturity Date shall be extended by one year from the then applicable Maturity Date provided that the Borrower has, before the then applicable Maturity Date, replaced or cancelled the Commitments of all Declining Lenders in the following manner:
(i) The Borrower may, at any time on or before the 10th Banking Day following the receipt of the Accepting Lender Notice, by written request to the Agent (each, an "Acquisition Request Notice"), a copy of which shall be provided by the Agent to each Lender within one Banking Day of the Agent receiving same, request that the rights and obligations of the Declining Lenders be assigned in accordance with this Section 2.4 and the following shall apply:
(A) Any Accepting Lender may, at its option, acquire all or any portion of the rights and obligations of the Declining Lenders under the Loan Documents (all of such rights and obligations being herein called the "Available Amount") by giving written notice to the Agent (an "Acquisition Notice") of the portion of the Available Amount which it is prepared to acquire (the "Desired Acquisition Amount") provided that it and/or any of its Affiliates who are Lenders (as defined in the HB Peru ARCA) under the HB Peru ARCA have collectively provided an identical Acquisition Notice (as defined in the HB Peru ARCA) (with only such changes as are necessary to reflect the involvement of such Affiliate) under Section 2.5 of HB Peru ARCA. Such Acquisition Notice shall be given within 10 days following the giving of the Acquisition Request Notice by the Borrower to the Agent (such deadline being herein called the "Acquisition Deadline"). If only one Accepting Lender gives an Acquisition Notice to Extend, Tenant covenants the Agent or if more than one Accepting Lender gives an Acquisition Notice to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent Agent but the aggregate of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces their Desired Acquisition Amounts is less than or equal to the fair market parking feesAvailable Amount, projected as then each such Accepting Lender shall be entitled to acquire its Desired Acquisition Amount of the commencement rights and obligations of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of Declining Lenders under the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market RentLoan Documents. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) Accepting Lender gives an Acquisition Notice to the Agent and the aggregate of the lower Desired Acquisition Amounts is greater than the Available Amount, then each such Accepting Lender shall be entitled to acquire a pro rata share of the rights and obligations of the Declining Lenders under the Loan Documents, such pro rata share being determined based on the relative Desired Acquisition Amount of each such Accepting Lender.
(B) Promptly following the Acquisition Deadline, the Agent shall give to the Borrower and each Lender a written notice identifying the Available Amount of each Declining Lender and the portion thereof to be acquired by each Accepting Lender. Each of such estimates, then the Fair Market Rent acquisitions shall be completed on the average date which is five Banking Days following the Acquisition Deadline, in accordance with the procedures set out in Section 11.2.
(C) If the Available Amount is not completely acquired by the Accepting Lenders, the Borrower may locate New Lenders, to acquire all or a portion of the two estimates. If balance of the matter rights and obligations of the Declining Lenders under the Loan Documents on the date which is 20 Banking Days following the Acquisition Deadline, in accordance with the procedures set out in Section 11.2.
(D) Any outstanding Commitment of the Declining Lenders which is not resolved acquired by Accepting Lenders or New Lenders under Sections 2.5(d)(i)(B) or 2.5(d)(i)(C) shall be repaid by the exchange Borrower, and the Commitments of estimates, then Fair Market Rent the Declining Lenders not so acquired shall be determined by arbitration as hereinafter provided. Within seven (7) days after cancelled on the exchange of estimates, then applicable Maturity Date and the parties shall select, as an arbitrator, a mutually acceptable member amount of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each Credit shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall thereupon be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen reduced by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs aggregate of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or TenantCommitments so cancelled, however, shall be borne by the party that retained such counselif any.
Appears in 3 contracts
Samples: Credit Agreement (Hudbay Minerals Inc.), Amending Agreement (Hudbay Minerals Inc.), Credit Facility Agreement (Hudbay Minerals Inc.)
Extension. Provided thatIf one or more Extension Terms is/are included on the Reference Data Pages of this Lease, at Tenant (the time original Tenant elects signatory hereto only for its own use) shall have the right to exercise extend the option herein granted and at Term to include such Extension Term(s) by giving written notice to Landlord of its intent to extend on or before that date which is nine (9) months prior to the time end of the commencement then current Term (the “Extension Notice Date”). Yearly Fixed Rent for the applicable Extension Term shall be the Extension Term Yearly Fixed Rent for each twelve (12) month period of the Extended Extension Term (with monthly payments equal to one-twelfth of the Extension Term Yearly Fixed Rent. Tenant shall also pay Additional Rent during the Extension Term as hereinafter defined)required for the Initial Term. During any Extension Term, (i) all other terms and conditions of this Lease is shall remain in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice effect except that the Yearly Fixed Rent shall be determined as set forth on Exhibit D hereof and cure period(s) (which default may there shall be waived by Landlord at its sole discretion and may not be used by Tenant as a means no further right to negate extend after the effectiveness of final Extension Term. Tenant’s exercise of the option set forth herein), Tenant shall have the option right to extend the Term of this Lease is expressly conditioned upon Tenant having then maintained its payment and performance obligations under this Lease current and without any Event of Default through the Term as then in effect, and except for two transfers to an Affiliate as defined in Section 12.B. hereof, the Lease not having been assigned, nor more than forty (240%) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end percent of the Original Term Premises sublet or otherwise licensed for use and occupancy. Failure of Tenant to give written notice on or before the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term Extension Notice Date shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further be deemed a waiver of Tenant’s right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Extension Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.
Appears in 3 contracts
Samples: Sublease (Chiasma, Inc), Sublease (Chiasma, Inc), Lease (Cyber-Ark Software Ltd.)
Extension. Provided that(a) The Borrower shall, at if it wishes to extend the time Tenant elects to exercise the option herein granted and at the time Maturity Date of the commencement of Credit, make a request to each Lender by written notice given to the Extended Term (as hereinafter defined), Agent not later than 60 days prior to the Maturity Date; provided that: (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant Borrower shall not be entitled to Tenant’s Construction Allowance or make more than one such request in any other contribution by Landlord to calendar year and (ii) no such notice shall be effective unless the cost of improvements or alterations to Borrower (as defined in the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord Hudbay ARCA) has delivered a written notice of its election pursuant to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date Section 2.5 of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option Hudbay ARCA that it wishes to extend the Term "Maturity Date" (as defined in the Hudbay ARCA). Each Lender shall provide a written response to that request to the Agent within 30 days; provided that no such response shall be effective unless such Lender and/or any of its Affiliates who are Lenders (as defined in the Hudbay ARCA) under the Hudbay ARCA have collectively provided the same response (accepting or declining the proposed extension under the Hudbay ARCA) and if such notices are not the same such Lender shall be deemed to have declined such extension request under both this Lease for Agreement and the Extended Term Hudbay ARCA. Promptly thereafter, the Agent shall notify the Borrower of the response of the Lenders, and shall include the names of all Declining Lenders (such notice, the "Accepting Lender Notice").
(b) If all of the Lenders agree to extend the Maturity Date, the Maturity Date shall be extended by delivering 365 days from the then applicable Maturity Date.
(c) If the aggregate amount of the Commitments of the Accepting Lenders is less than 66⅔% of the aggregate Commitments of all Lenders then in effect, the Maturity Date shall not be extended.
(d) If the aggregate amount of the Commitments of the Accepting Lenders are equal to or greater than 66⅔% but less than 100% of the aggregate Commitments of all Lenders, unless the Borrower elects not to extend the Maturity Date by giving a further written notice to the Agent to that effect within 10 days after the Agent notifies the Borrower of the Lenders' response, the Maturity Date shall be extended by one year from the then applicable Maturity Date provided that the Borrower has, before the then applicable Maturity Date, replaced or cancelled the Commitments of all Declining Lenders in the following manner:
(i) The Borrower may, at any time on or before the 10th Banking Day following the receipt of the Accepting Lender Notice, by written request to the Agent (each, an "Acquisition Request Notice"), a copy which shall be provided by the Agent to each Lender within one Banking Day of the Agent receiving same, request that the rights and obligations of the Declining Lenders be assigned in accordance with this Section 2.4 and the following shall apply:
(A) Any Accepting Lender may, at its option, acquire all or any portion of the rights and obligations of the Declining Lenders under the Loan Documents (all of such rights and obligations being herein called the "Available Amount") by giving written notice to the Agent (an "Acquisition Notice") of the portion of the Available Amount which it is prepared to acquire (the "Desired Acquisition Amount") provided that it and/or any of its Affiliates who are Lenders (as defined in the Hudbay ARCA) under the Hudbay ARCA have collectively provided an identical Acquisition Notice (as defined in the Hudbay ARCA) (with only such changes as are necessary to reflect the involvement of such Affiliate) under Section 2.5 of Hudbay ARCA. Such Acquisition Notice shall be given within 10 days following the giving of the Acquisition Request Notice by the Borrower to the Agent (such deadline being herein called the "Acquisition Deadline"). If only one Accepting Lender gives an Acquisition Notice to Extend, Tenant covenants the Agent or if more than one Accepting Lender gives an Acquisition Notice to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent Agent but the aggregate of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces their Desired Acquisition Amounts is less than or equal to the fair market parking feesAvailable Amount, projected as then each such Accepting Lender shall be entitled to acquire its Desired Acquisition Amount of the commencement rights and obligations of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of Declining Lenders under the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market RentLoan Documents. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) Accepting Lender gives an Acquisition Notice to the Agent and the aggregate of the lower Desired Acquisition Amounts is greater than the Available Amount, then each such Accepting Lender shall be entitled to acquire a pro rata share of the rights and obligations of the Declining Lenders under the Loan Documents, such pro rata share being determined based on the relative Desired Acquisition Amount of each such Accepting Lender.
(B) Promptly following the Acquisition Deadline, the Agent shall give to the Borrower and each Lender a written notice identifying the Available Amount of each Declining Lender and the portion thereof to be acquired by each Accepting Lender. Each of such estimates, then the Fair Market Rent acquisitions shall be completed on the average date which is five Banking Days following the Acquisition Deadline, in accordance with the procedures set out in Section 11.2.
(C) If the Available Amount is not completely acquired by the Accepting Lenders, the Borrower may locate New Lenders, to acquire all or a portion of the two estimates. If balance of the matter rights and obligations of the Declining Lenders under the Loan Documents on the date which is 20 Banking Days following the Acquisition Deadline, in accordance with the procedures set out in Section 11.2.
(D) Any outstanding Commitment of the Declining Lenders which is not resolved acquired by Accepting Lenders or New Lenders under Sections 2.5(d)(i)(B) or 2.5(d)(i)(C) shall be repaid by the exchange Borrower, and the Commitments of estimates, then Fair Market Rent the Declining Lenders not so acquired shall be determined by arbitration as hereinafter provided. Within seven (7) days after cancelled on the exchange of estimates, then applicable Maturity Date and the parties shall select, as an arbitrator, a mutually acceptable member amount of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each Credit shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall thereupon be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen reduced by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs aggregate of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or TenantCommitments so cancelled, however, shall be borne by the party that retained such counselif any.
Appears in 3 contracts
Samples: Credit Agreement (Hudbay Minerals Inc.), Amending Agreement (Hudbay Minerals Inc.), Credit Facility Agreement (Hudbay Minerals Inc.)
Extension. Provided On not more than two occasions following the Closing Date during the term of this Agreement, and no more than once in any 12-month period, the Borrower may, by written notice to the Administrative Agent (which shall promptly deliver a copy to each of the Lenders) not less than 30 days and not more than 60 days prior to the proposed effective date of an extension (such date of effectiveness, an “Extension Date”), request that the Lenders extend the Stated Maturity Date and the Commitments for a period of one year from the Stated Maturity Date then in effect hereunder (the then “Existing Stated Maturity Date”). Each Lender shall, by notice to the Borrower and the Administrative Agent, given no later than 15 days (or such other date specified by the Borrower in such written notice delivered pursuant to the immediately preceding sentence or any supplement thereto) after such written notice is delivered to the Administrative Agent, advise the Borrower whether or not it agrees to the requested extension (each Lender agreeing to a requested extension, a “Consenting Lender” and each Lender declining to agree to a requested extension, a “Declining Lender”). Any Lender that has not so advised the Borrower and the Administrative Agent by the applicable deadline shall be deemed to have declined to agree to such extension and shall be a Declining Lender (unless such Lender subsequently agrees to such requested extension and the Borrower elects in its sole discretion to treat such Lender as a Consenting Lender). If Lenders constituting the Required Lenders shall have agreed to any such extension request, then the Stated Maturity Date shall, as to the Consenting Lenders and any Lender replacing a Declining Lender, be extended on the Extension Date to the date that is one year after the then Existing Stated Maturity Date. The decision to agree or withhold agreement to any Stated Maturity Date extension request shall be at the sole discretion of each Lender. The Commitment of any Declining Lender shall terminate on the Existing Stated Maturity Date applicable to such Declining Lender. The principal amount of any outstanding Loans made by Declining Lenders, together with any accrued interest thereon and any accrued fees and other amounts payable to or for the accounts of such Declining Lenders hereunder, shall be due and payable on the Existing Stated Maturity Date applicable to such Declining Lenders, and on the Existing Stated Maturity Date applicable to such Declining Lenders, the Borrower shall also make such other prepayments of Loans as shall be required in order that, at after giving effect to the time Tenant elects to exercise the option herein granted and at the time termination of the commencement Commitments of, and all payments to, Declining Lenders pursuant to this sentence, the sum of the Extended Term Aggregate Outstanding Credit Exposure shall not exceed the Aggregate Commitments. Notwithstanding the foregoing provisions of this paragraph, the Borrower shall have the right, pursuant to and in accordance with the requirements of Section 12.01, at any time prior to any Existing Stated Maturity Date, to cause a Declining Lender to assign its interests, rights and obligations hereunder to a Lender or (as hereinafter definedsubject to the consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), solely to the extent such consent would be required for an assignment pursuant to Section 12.01) other Eligible Assignee that agrees to a request for the extension of the Existing Stated Maturity Date, and any such assignee shall for all purposes constitute a Consenting Lender. Notwithstanding the foregoing, no extension of the Stated Maturity Date pursuant to this paragraph shall become effective unless (i) this Lease on the applicable Extension Date, no Unmatured Default or Default has occurred and is in full force and effectcontinuing, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise each of the option representations and warranties set forth herein)in Article 5 of this Agreement is true and correct in all material respects (except to the extent such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, Tenant in which case such representations and warranties are true and correct in all respects) as of such Extension Date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct in all material respects (except to the option to extend extent such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall have been true and correct in all respects) on and as of such earlier date, (iii) the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end remaining maturity of the Original Term or Commitments, after giving effect to such extension, does not exceed five years from the first Extended Terraapplicable Extension Date and (iv) the Administrative Agent shall have received an officer’s certificate, as signed by an Authorized Officer of the case may be. All terms and Borrower, certifying that the foregoing conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, and (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected are satisfied as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rentapplicable Extension Date.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.
Appears in 2 contracts
Samples: Credit Agreement (GXO Logistics, Inc.), Credit Agreement (XPO Logistics, Inc.)
Extension. Provided that, at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s Upon exercise of the option Extension Option by Tenant and subject to the conditions set forth herein)hereinabove, this Lease shall be extended for the period of such Extension Term without the necessity of the execution of any further instrument or document, although if requested by either party, Landlord and Tenant shall enter into a written agreement modifying and supplementing this Lease in accordance with the provisions hereof. Any termination of this Lease during the initial Lease Term shall terminate all renewal rights hereunder. The renewal rights of Tenant hereunder shall not be severable from this Lease, nor may such rights be assigned or otherwise conveyed in connection with any permitted assignment of this Lease other than to a Permitted Transferee. Landlord’s consent to any assignment of this Lease shall not be construed as allowing an assignment of such rights to any assignee. Exhibit “D”
1. Following the delivery of possession of the Premises to Tenant and Tenant’s payment of all Rent, if any, and security deposits required to be paid upon the execution of the Lease, Tenant shall have the option right to extend perform certain alterations and Improvements in the Term Premises (the “Initial Alterations”). Notwithstanding the foregoing, Tenant and its contractors shall not have the right to perform Initial Alterations in the Premises unless and until Tenant has complied with all of this Lease the terms and conditions of Section 19.1 of the Lease, including, without limitation, approval by Landlord (which approval shall not be unreasonably withheld provided that the plans for two the Initial Alterations comply with all applicable governmental laws, codes, rules, and regulations and are sufficiently detailed to allow construction of the Improvements in a good and workmanlike manner) of (2a) extended terms the final plans for the Initial Alterations, (b) the contractors to be retained by Tenant to perform such Initial Alterations, and (c) the insurance coverage obtained by Tenant and its contractors in connection with the Initial Alterations. Tenant shall be responsible for all elements of the plans for the Initial Alterations (including, without limitation, compliance with law, functionality of design, the structural integrity of the design, the configuration of the premises and the placement of Tenant’s furniture, appliances and equipment), and Landlord’s approval of such plans shall in no event relieve Tenant of the responsibility therefor. Landlord’s approval of the contractors to perform the Initial Alterations shall not be unreasonably withheld. Landlord’s approval of the general contractor to perform the Initial Alterations shall not be considered to be unreasonably withheld if any such general contractor (i) does not have trade references reasonably acceptable to Landlord, (ii) does not maintain insurance as required by Landlord, (iii) does not have the ability to be bonded for the work in an amount satisfactory to Landlord, (iv) does not provide current financial statements reasonably acceptable to Landlord, or (v) is not licensed as a contractor in the state and municipality in which the Premises is located. Tenant acknowledges the foregoing is not intended to be an exclusive list of the reasons why Landlord may reasonably withhold its consent to a general contractor. Landlord shall approve or disapprove of Tenant’s plans and revisions for the Initial Alterations within ten (10) days after its receipt of a request by Tenant. After final approval of such plans and revisions, if Tenant proposes changes to the final plans for the Initial Alterations, Landlord shall approve or reasonably disapprove of same within five (5) years each (each, business days after its receipt of a change request by Tenant. Failure of Landlord to respond during the aforementioned ten-day and five-day periods shall be deemed an “Extended Term”). The Extended Term shall commence immediately following the end approval by Landlord of the Original Term plans, revisions or the first Extended Terra, change request as the case may be. All terms and conditions applicable during Neither the Original Term shall apply during each Extended Term including without limitation approval by Landlord of the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance Initial Alterations or any other contribution plans, drawings, specifications or other items associated with the Initial Alterations nor Landlord’s performance, supervision or monitoring of the construction of the Initial Alterations shall constitute any warranty by Landlord to Tenant of the adequacy of the design for Tenant’s intended use of the Premises or of compliance with any applicable law or code.
2. Tenant shall pay the cost of improvements or the Initial Alterations and any other alterations made by Tenant pursuant to the PremisesLease. In no event shall Landlord be obligated to contribute, in the form of a tenant improvement allowance or otherwise, toward the cost of performing the Initial Alterations or any other alterations made by Tenant pursuant to the Lease. In addition, Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty ten (3010) days after Landlord’s receipt of Tenant’s Notice written demand, a construction fee equal to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal actual, out of pocket costs for Fair Market Rent with respect to reviewing the Extended Term, Landlord and plans for the Initial Alterations.
3. Tenant shall commence negotiations to agree upon be responsible for all applicable state sales or use taxes, if any, payable in connection with the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselInitial Alterations.
Appears in 2 contracts
Samples: Industrial Space Lease (XBiotech Inc.), Industrial Space Lease (XBiotech Inc.)
Extension. Provided that, at Subject to the time Tenant elects to exercise the option herein granted and at the time satisfaction of the commencement conditions set forth in Section 5, on and as of the Extended Term (as hereinafter defined), Ninth Amendment Closing Date:
(i) this Lease is Each 2024 Extending Term Lender agrees that, immediately prior to the amendments in full force and clause (b) below taking effect, the aggregate principal amount of its Existing 2020 Replacement Term Loans indicated on such 2024 Extending Term Lender’s signature page to this Ninth Amendment will be exchanged for an equal amount of 2024 Extended Term Loans through a cashless exchange as permitted by Section 1.12 of the Term Credit Agreement.
(ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means The 2024 Extended Term Loans established pursuant to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant this Ninth Amendment shall have the option to extend “Applicable Margin,” “Interest Period,” “Maturity Date,” amortization and prepayment premium, in each case, as set forth in the Term of Credit Agreement as amended by this Lease for two (2) extended terms of five (5) years each (eachNinth Amendment, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All and all other terms and conditions applicable during to the Original Term shall apply during each 2024 Extended Term including without limitation Loans shall be the obligation same as the corresponding terms and conditions applicable to pay Operating Expenses the 2020 Replacement Term Loans, as set forth in the Term Credit Agreement as amended by this Ninth Amendment.
(iii) The 2024 Extended Term Loans shall constitute a separate tranche of Term Loans and Taxes except a separate “Class” from the 2020 Replacement Term Loans for all purposes of the Term Credit Agreement (as amended by this Ninth Amendment) and the other Loan Documents.
(iv) The Existing 2020 Replacement Term Loans of each Existing 2020 Replacement Term Lender that does not deliver an executed signature page to this Ninth Amendment (each such Lender, a “Non-Extending Lender”) shall continue as and shall be deemed to constitute 2020 Replacement Term Loans on and after the Ninth Amendment Closing Date.
(v) As of the Ninth Amendment Closing Date, after giving effect to the 2024 Extension and the cashless exchange described in sub-clause (i) Tenant above, (1) the aggregate outstanding principal amount of 2020 Replacement Term Loans (for the avoidance of doubt, which shall be held by Non-Extending Lenders that shall have no further right elected not to extend participate in the 2024 Extension) shall be $511,609,963.88 and (2) the aggregate outstanding principal amount of 2024 Extended Term Loans held by 2024 Extending Term Lenders shall be $954,138,264.82.
(vi) This Ninth Amendment shall constitute an Extension Request to the Existing 2020 Replacement Term Lenders and an Extension Amendment pursuant to Section 2.16 of the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market RentCredit Agreement.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.
Appears in 2 contracts
Samples: Term Loan Credit Agreement (BRP Inc.), Term Loan Credit Agreement (BRP Inc.)
Extension. Provided that(a) Notwithstanding anything to the contrary in this Agreement, at the time Tenant elects pursuant to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each one or more offers (each, an “Extended TermExtension Offer”). The Extended ) made from time to time by Company to all Term shall commence immediately following Lenders of Term Loans with a like maturity date or Revolving Lenders with Revolving Loan Commitments with a like maturity date, in each case on a pro rata basis (based on the end aggregate outstanding principal amount of the Original respective Term Loans or the first Extended TerraRevolving Loan Commitments with a like maturity date, as the case may be. All ) and on the same terms and conditions applicable during to each such Lender, on which Company proposes that such Extension shall be effective, Company is hereby permitted to consummate from time to time transactions with individual Lenders that accept the Original terms contained in such Extension Offers to extend the maturity date of each such Lender’s Term shall apply during each Loans and/or Revolving Loan Commitments (each, an “Extension”; any Extended Term including without limitation Loans shall constitute a separate tranche of Term Loans from the obligation to pay Operating Expenses tranche of Term Loans from which they were converted and Taxes except that any Extended Revolving Loan Commitments shall constitute a separate tranche of Revolving Loan Commitments from the tranche of Revolving Loan Commitments from which they were converted), so long as the following terms are satisfied:
(i) Tenant except as to final maturity and pricing (which shall have be determined by Company and set forth in the relevant Extension Offer), the Revolving Loan Commitment of any Revolving Lender that agrees to an extension with respect to such Revolving Loan Commitment extended pursuant to an Extension (an “Extended Revolving Loan Commitment”; and the Loans thereunder, “Extended Revolving Loans”), and the related outstandings, shall be a Revolving Loan Commitment (or related outstandings, as the case may be) and shall be identical to the terms in the original Revolving Loan Commitments (and related outstandings), except for such terms that are applicable after the maturity date of the non-extending Revolving Loan Commitments; provided that at no further right to extend the Term beyond the second time shall there be Revolving Loan Commitments hereunder (including Extended Term hereinabove providedRevolving Loan Commitments, any Incremental Revolving Loan Commitments and any original Revolving Loan Commitments) that constitute more than three different tranches;
(ii) Monthly Rent except as to pricing, amortization and final maturity date (which shall, subject to immediately succeeding clauses (iii) and (iv), be determined by Company and set forth in the relevant Extension Offer), the Term Loans of any Lender that agrees to an extension with respect to such Term Loans extended pursuant to any Extension (any such extended Term Loans, “Extended Term Loans”, together with Extended Revolving Loans, “Extension Loans”) shall have the same terms as the tranche of Term Loans subject to such Extension Offer, except for such terms that are applicable after the maturity date of the non-extending Term Loans;
(iii) the maturity date of any Extended Term Loans, Extended Revolving Loans or Extended Revolving Loan Commitments shall be no earlier than the Latest Maturity Date applicable to the Loans or Commitments being extended;
(iv) the weighted average life to maturity of any Extended Term Loans shall be no shorter than the remaining weighted average life to maturity of the Term Loans extended thereby;
(v) an Extension Offer shall be in writing, executed by Company and shall specify the date on which Company proposes that such Extension shall be effective, which date shall be prior to the applicable Latest Maturity Date;
(vi) the Specified Conditions shall be satisfied (or waived by the Administrative Agent); and
(vii) if the aggregate principal amount of Term Loans (calculated on the face amount thereof) or Revolving Loan Commitments, as provided hereinthe case may be, in respect of which Term Lenders or Revolving Lenders, as the case may be, shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Term Loans or Revolving Loan Commitments, as the case may be, offered to be extended by Company pursuant to such Extension Offer, unless Company otherwise agrees to increase the amount of the Extension Offer, then the Term Loans or Revolving Loans, as the case may be, of such Term Lenders or Revolving Lenders, as the case may be, shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Term Lenders or Revolving Lenders, as the case may be, have accepted such Extension Offer.
(b) With respect to all Extensions consummated by Company pursuant to this Section 2.13, (i) such Extensions shall not constitute voluntary or mandatory payments or prepayments or commitment reductions for purposes of Section 2.4, and (inii) Tenant the principal payment amounts (in so far as such amounts affect payments due to Lenders participating in the Extended Term Loans) set forth in Section 2.4(a) shall be adjusted to give effect to the Extension of the relevant Term Loan. The Administrative Agent and the Lenders hereby consent to the transactions contemplated by this Section 2.13 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Term Loans and/or Extended Revolving Loan Commitments on such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement (including Section 2.4) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section.
(c) No consent of any Lender shall be required to effectuate any Extension, other than (A) the consent of each Lender agreeing to such Extension with respect to one or more of its Term Loans and/or Revolving Loan Commitments (or a portion thereof) and (B) with respect to any Extension of the Revolving Loan Commitments (or a portion thereof), the consent of the Issuing Lender and Swing Line Lender, which consent shall not be entitled unreasonably withheld, delayed or conditioned; provided that any amendment required to Tenant’s Construction Allowance effectuate any such extension pursuant to Section 9.6 below shall also require the consent of the Administrative Agent, which consent shall not be unreasonably withheld, delayed or any other contribution by Landlord to the cost of improvements or alterations to the Premisesconditioned. Tenant shall exercise its option to extend this Lease for the All Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises Loans and Extended Revolving Loan Commitments and all obligations in respect thereof shall be irrevocableObligations under this Agreement and the other Loan Documents that are secured by the Collateral and guaranteed on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. Tenant The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with Company as may exercise its option be necessary in order to extend for each Extended establish new tranches in respect of Revolving Loan Commitments or Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to Loans so extended and such technical amendments as may be necessary or appropriate in the expiration date reasonable opinion of the then current term, time being Administrative Agent and Company in connection with the establishment of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Termsuch new tranches, in each case also referred on terms consistent with this Section 2.13. This Section 2.13 shall supersede any provisions of Section 9.1 and Section 9.6 to below collectively the contrary.
(d) In connection with any Extension, Company shall provide the Administrative Agent at least five Business Days’ (or such shorter period as “Fair Market Rent.” The computation can include appropriate annual increases during each year may be agreed by the Administrative Agent) prior written notice thereof, and shall agree to such procedures (including regarding timing, rounding and other adjustments and to ensure reasonable administrative management of the Extended Termcredit facilities hereunder after such Extension), if that is required any, as may be established by, or acceptable to, the Administrative Agent, in each case acting reasonably to arrive at fair market rent. Landlord accomplish the purposes of this Section 2.13 and shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice deliver or cause to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the delivered other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved documents reasonably requested by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on Administrative Agent in connection with such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselExtension.
Appears in 2 contracts
Samples: Credit Agreement (U.S. Silica Holdings, Inc.), Credit Agreement (U.S. Silica Holdings, Inc.)
Extension. Provided that(a) Tenant shall have the option to extend the initial period constituting the Term under this Lease for two (2) additional periods of five (5) years each (only), provided that Tenant gives Landlord notice of the exercise of each such option on or before the date that is twelve (12) months prior to the expiration of the then-existing period constituting the Term, and that at the time Tenant elects to exercise the option herein granted each such notice is given and at the time of on the commencement of the Extended Term (as hereinafter defined), extension term concerned:
(i) this Lease is in full force and effect, ;
(ii) no Tenant Default then exists; and
(iii) Tenant has not assigned this Lease or subleased all or any portion of the Premises under any then-existing sublease (excluding any Non-Consent Transfer), and such extension is not being made in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord connection with or for the purpose of facilitating any such assignment or sublease. Each such extension term shall commence at its sole discretion and may not be used by Tenant as a means to negate 12:01 a.m. on the effectiveness of Tenant’s exercise first day following the expiration of the option set forth herein)immediately preceding period constituting the Term.
(b) During each such extension term, Tenant shall have the option to extend the Term all provisions of this Lease shall apply (but as to this Paragraph 3.3, only with respect to any remaining options to extend, if any), except for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following any provision relating to the end improvement of the Original Term Premises by Landlord or the first Extended Terraat Landlord’s expense, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) amount of Basic Monthly Rent for each such extension term shall be as provided hereinnegotiated and determined by mutual agreement between the Parties, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair then-market rent for premises in the Project, based on comparable laboratory space in Cambridgelease transactions within the Project, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. which comparable lease transactions Landlord shall notify provide to Tenant reasonable evidence.
(c) If the Parties are able to agree on the amount of Landlord’s proposed Basic Monthly Rent and Parking Fee for the Extended Term either such extension term within thirty (30) days after Landlord’s receipt by Landlord of Tenant’s Notice notice of extension, the Parties shall promptly enter into an amendment to Extend, (but in no event prior to this Lease reflecting the last date for Tenant to give new Basic Monthly Rent and the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rentnew Expiration Date. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days Parties, after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rentusing their best efforts, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market amount of Basic Monthly Rent for either such extension term within said such thirty (30) day period30)-day period (as evidenced by the execution and delivery of an amendment to this Lease), then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s extend (i.e., Landlord’s and any subsequent option to extend) shall automatically terminate and be of no further force or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counseleffect.
Appears in 2 contracts
Samples: Lease Agreement (Vivint Solar, Inc.), Lease Agreement (Vivint Solar, Inc.)
Extension. Provided thatIf the Requisite Extending Lenders shall have consented to any such Extension Request, at then as of 5:00 p.m. New York time on the time Tenant elects date which is 30 days after the date of such Extension Request the Revolving Credit Maturity Date shall be deemed to exercise have been extended until, and shall be, the option date specified in the Extension Request, and if the Revolving Credit Maturity Date is so extended, the Competitive Bid Expiration Date and the Letter of Credit Maturity Date (as such dates may have been previously extended pursuant to this Section) shall be deemed to have been extended for the same period. Under all other circumstances neither the Revolving Credit Maturity Date, the Competitive Bid Expiration Date nor the Letter of Credit Maturity Date shall be extended. Notwithstanding anything herein granted and at to the time contrary, in no event shall any such extension of the commencement of Revolving Credit Maturity Date be effective as to any Nonextending Lender. To the Extended Term extent that any Nonextending Lender has not theretofor been replaced as described above, then on the Revolving Credit Maturity Date which is applicable to such Nonextending Lender (as hereinafter definedi.e., the Revolving Credit Maturity Date determined without giving effect to any extension thereof to which such Nonextending Lender has not consented), (i) this Lease is the Parent (or, as applicable, Other Borrowers) shall make indefeasible payment in full force to such Nonextending Lender of all amounts owed to it hereunder and effectunder the other Loan Documents, including all amounts owed under Section 4.08(c) hereof, (ii) Tenant is if the conditions set forth in Section 6.02 are then satisfied, the participation of such Nonextending Lender in all Letters of Credit shall terminate and each extending Lender shall be deemed to have acquired its pro rata (relative to Commitment Percentage) share of such participation and shall thereafter be liable to the Issuer in respect thereof and (iii) if the conditions set forth in Section 6.02 are not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate then satisfied, the effectiveness of Tenant’s exercise Parent shall deposit with the Administrative Agent for the account of the option set forth herein)Nonextending Lender cash in the amount of such Nonextending Lender’s LC Exposure, Tenant which shall have be held on the option to extend the Term of this Lease for two (2) extended terms of five Section 2.10(i); provided that (5A) years each amounts so deposited and interest thereon shall be applied exclusively to amounts for which such Nonextending Lender is or becomes liable to an Issuer pursuant to Section 2.10(d) and (each, an “Extended Term”). The Extended Term shall commence immediately following B) at such time as the end LC Exposure of the Original Term or the first Extended TerraNonextending Lender is zero, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent all such amounts shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord refunded to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market RentParent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Air Products & Chemicals Inc /De/), Revolving Credit Agreement (Air Products & Chemicals Inc /De/)
Extension. Provided that, at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond any applicable notice and cure period(s) grace periods hereunder (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s 's exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “"Extended Term”"). The Extended Term shall commence immediately following the end of the Original Term or following the end of the first Extended TerraTerm, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay its Pro Rata Share of Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly there shall be no Tenant Work Allowance and (iii) Base Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the each Extended Term by giving Landlord written notice of its election to extend (the “"Notice to Extend”"), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve fifteen (1215) months prior to the expiration date of the then current term, time being of the essenceTIME BEING OF THE ESSENCE. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Base Rent equal to 95 percent of the fair market rent for comparable comparably improved laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “"Fair Market Rent.” " The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s 's proposed Monthly Base Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s 's receipt of Tenant’s 's Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s 's proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s 's proposal for Fair Market RentRent (the "FMR Agreement Date"), then then, unless Tenant elects to rescind its Notice to Extend, which rescission notice shall be received by Landlord within thirty (30) days after the FMR Agreement Date, the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”)Counselors, the Society of Industrial and Office Realtors or a Certified Commercial Investment Member, or a successor organization to ASRECorganizations thereto (each, an "Approved Organization"). If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC an Approved Organization and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC an Approved Organization and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s 's estimate of Fair Market Rent or the Tenant’s 's estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s 's decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Base Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Base Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s 's estimate of Fair Market Rent for both the Monthly Base Rent and the Parking Fee, but shall have the option to select one party’s 's (i.e., Landlord’s 's or Tenant’s's) estimate of Fair Market Rent with respect to the Monthly Base Rent and the other party’s 's estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel. Base Rent for the Extended Term shall be payable in advance, on the first day of every calendar month during the Extended Term. In the event Base Rent and the Parking Fee applicable to the Extended Term is not determined by the first day of the Extended Term, Tenant shall pay the Base Rent and Parking Fee last payable under this Lease until such determination, subject to adjustment following the determination of Base Rent and the Parking Fee for the Extended Term.
Appears in 2 contracts
Samples: Lease (Archemix Corp.), Lease (Archemix Corp.)
Extension. Provided that(i) If the Requisite Extending Lenders shall have consented to any such Extension Request, at then as of 5:00 p.m. New York time on the time Tenant elects date which is 20 days after the date of such Extension Request the Revolving Credit Maturity Date shall be deemed to exercise have been extended until, and shall be, the option date specified in the Extension Request, and if the Revolving Credit Maturity Date is so extended, the Competitive Bid Expiration Date and the Letter of Credit Maturity Date (as such dates may have been previously extended pursuant to this Section) shall be deemed to have been extended for the same period. Under all other circumstances neither the Revolving Credit Maturity Date, the Competitive Bid Expiration Date nor the Letter of Credit Maturity Date shall be extended. Notwithstanding anything herein granted and at to the time contrary, in no event shall any such extension of the commencement of Revolving Credit Maturity Date be effective as to any Nonextending Lender. To the Extended Term extent that any Nonextending Lender has not theretofore been replaced as described above, then on the Revolving Credit Maturity Date which is applicable to such Nonextending Lender (as hereinafter definedi.e., the Revolving Credit Maturity Date determined without giving effect to any extension thereof to which such Nonextending Lender has not consented), (i) this Lease is the Parent (or, as applicable, Other Borrowers) shall make payment in full force in cash to such Nonextending Lender of all amounts owed to it hereunder and effectunder the other Loan Documents, including all amounts owed under Section 4.08(c) hereof, (ii) Tenant if the conditions set forth in Section 6.02 are then satisfied, the participation of such Nonextending Lender in all Letters of Credit shall terminate and each extending Lender shall be deemed to have acquired its pro rata (relative to Commitment Percentage) share of such participation and shall thereafter be liable to the Issuer in respect thereof and (iii) if the conditions set forth in Section 6.02 are not then satisfied, the Parent shall deposit with the Administrative Agent for the account of the Nonextending Lender cash in the amount of such Nonextending Lender’s LC Exposure, which shall be held on the terms of Section 2.11(i); provided that (A) amounts so deposited and interest thereon shall be applied exclusively to amounts for which such Nonextending Lender is not or becomes liable to an Issuer pursuant to Section 2.11(d) and (B) at such time as the LC Exposure of the Nonextending Lender is zero, all such amounts shall be refunded to the Parent.
(ii) Notwithstanding the foregoing, the Revolving Credit Maturity Date and the Commitment Termination Date (without taking into consideration any extension pursuant to this Section 4.01(c)), as such terms are used in default hereunder beyond applicable notice and cure period(s) (which default may be waived reference to any Swingline Lender or any Swingline Loans made by Landlord at its sole discretion and such Swingline Lender, may not be used by Tenant as a means extended without the prior written consent of such Swingline Lender (it being understood and agreed that, in the event such Swingline Lender shall not have consented to negate any such extension, (A) such Swingline Lender shall continue to have all the effectiveness of Tenant’s exercise rights and obligations of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended TerraSwingline Lenders, as applicable, hereunder through the case may be. All terms Revolving Credit Maturity Date in effect prior to giving effect to any extension pursuant to this Section 4.01(c) and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant thereafter shall have no further right obligation to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided hereinmake any Swingline Loan, and (inB) Tenant the Borrowers shall repay all Swingline Loans, and all accrued interest thereon, made by any Swingline Lender that shall not be entitled have consented to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not such extension no later than twelve (12) months prior the day on which such Swingline Loans would have been required to have been repaid in accordance with the expiration date terms hereof without giving effect to any effectiveness of the then current term, time being extension of the essence. If Tenant fails Revolving Credit Maturity Date pursuant to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Termparagraph (and, in each case also referred to below collectively as “Fair Market Rentany event, no later than the Revolving Credit Maturity Date)).” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.
Appears in 2 contracts
Samples: Revolving Credit Agreement (Air Products & Chemicals Inc /De/), Revolving Credit Agreement (Air Products & Chemicals Inc /De/)
Extension. Provided that, at the time Tenant elects to exercise the option herein granted and at the time If all of the commencement of Lenders consent in writing to any such request in accordance with Section 2.7(a), the Extended Term Maturity Date in effect at such time shall, effective as at such next Anniversary Date (as hereinafter definedthe “Extension Date”), be extended for one calendar year; provided that no such extension shall become effective under this sentence unless, (i) this Lease is on the applicable Extension Date, the conditions set forth in full force Sections 6.2(b) and effect, (c) shall be satisfied (or waived by Lenders holding more than 50% of the Loan Commitment) and the Administrative Agent shall have received a certificate to that effect dated such date and executed by the chief financial officer or treasurer of the Borrower and (ii) Tenant is the Administrative Agent shall have received documents consistent with those delivered on the Effective Date as to the corporate power and authority of the Borrower to borrow hereunder after giving effect to such extension. If Lenders holding more than 50% of the Loan Commitment, but less than all of the Lenders, consent in writing to any such request in accordance with Section 2.7(a), unless the Borrower shall deliver written notice to the Administrative Agent terminating such requested extension not less than ten Business Days prior to the proposed Extension Date (it being understood and agreed that any Extension Request issued in default hereunder beyond connection with any such terminated extension shall constitute an Extension Request for purposes of determining the then remaining available number of Extension Requests under Section 2.7(a)), the Maturity Date in effect at such time shall, effective as at the applicable notice and cure period(sExtension Date, be extended as to those Lenders that so consented (each a “Consenting Lender”) (which default may be waived by Landlord at its sole discretion and may but shall not be used by Tenant extended as to any other Lender (each a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended TermNon-Consenting Lender”). The Extended Term To the extent that the Maturity Date is not extended as to any Lender pursuant to this Section 2.7 and the Commitment of such Lender is not assumed in accordance with Section 2.7(c) on or prior to the applicable Extension Date, the Commitment of such Non-Consenting Lender shall commence immediately following automatically terminate in whole on such unextended Maturity Date without any further notice or other action by the end of Borrower, such Lender or any other Person and the Original Term or the first Extended TerraBorrower shall pay all Loans, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided hereintogether with accrued but unpaid interest thereon, and (in) Tenant all other amounts owing under this Credit Agreement to such Non-Consenting Lender on such unextended Maturity Date; provided that such Non-Consenting Lender shall not continue to be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”)benefits of, which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current termsubject to, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term those provisions of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent Credit Agreement and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs Credit Documents which survive payment of the arbitrator will be equally divided between Landlord Loans, Reimbursement Obligations and Tenantother obligations of the Borrower hereunder and termination of the applicable agreement. Any fees of It is understood and agreed that no Lender shall have any counsel engaged by Landlord or Tenant, however, shall be borne obligation whatsoever to agree to any request made by the party that retained such counselBorrower for any requested extension of the Maturity Date.
Appears in 2 contracts
Samples: Five Year Credit Agreement (Dominion Resources Inc /Va/), Five Year Credit Agreement (Dominion Resources Inc /Va/)
Extension. Provided that, at (a) Extension Company may by prior written notice to Administrative Agent elect to request the time Tenant elects to exercise the option herein granted and at the time extension of the commencement final maturity of the Extended Loans or the Incremental Term (Loans. Company and any Lender or Incremental Term Lender, as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default the case may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended TermExtending Lender”) may agree to extend the maturity date and otherwise modify the terms of such Lender’s or Incremental Lender’s Loans or Incremental Term Loans, as the case may be (each such transaction, an “Extension”); provided that the aggregate principal amount of the Extension made at any one time under this Section 2.11 shall be not less than $20,000,000. Such notice shall specify (i) the date (the “Extension Effective Date”) on which Company proposes that the Extension shall be effective, which shall be a date not less than 5 Business Days after the date on which such notice is delivered to Administrative Agent and (ii) the proposed final maturity date of the extended Loans and/or Incremental Term Loans (the “Extension Loans”). The Extended Term Extension shall commence immediately following the end become effective, as of the Original Extension Effective Date; provided that (A) Company shall have offered to all Lenders the opportunity to participate in such Extension on a pro rata basis with respect to the Loans and all Incremental Lenders the opportunity to participate in such Extension on a pro rata basis with respect to Incremental Term Loans and on the same terms and conditions to each such Lender or the first Extended TerraIncremental Lender, as the case may be. All terms , and conditions applicable during any Lender or Incremental Lender, as the Original Term shall apply during each Extended Term including without limitation the obligation case may be, may elect to pay Operating Expenses and Taxes except that agree or to decline, in its sole discretion (iB) Tenant no Potential Event of Default or Event of Default shall have no further right occurred and be continuing on the Extension Effective Date; (C) both before and after giving effect to extend the Term beyond Extension, each of the second Extended Term hereinabove provided, (ii) Monthly Rent representations and warranties contained in this Agreement and in the other Loan Documents shall be as provided herein, true and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises correct in all material respects on and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal Extension Effective Date to the fair market parking fees, projected same extent as though made on and as of that date, except to the commencement of the Extended Termextent such representations and warranties specifically relate to an earlier date, in each which case also referred such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided that if a representation and warranty is qualified as to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of materiality, the Extended Term, if that is required to arrive at fair market rent. Landlord materiality qualifier set forth above shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent be disregarded with respect to such representation and warranty for purposes of this condition; (D) the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent Extensions shall be determined as provided below. If Landlord effected pursuant to one or more extension agreements in form and Tenant are unable substance reasonably satisfactory to agree on the Fair Market Rent within said thirty Administrative Agent (30an “Extension Agreement”) day periodexecuted and delivered by Company, then within five (5) days thereaftereach other Loan Party, Landlord each Extending Lender and Tenant shall Administrative Agent, and each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent which shall be recorded in the average of the two estimates. If the matter is not resolved Register; and (E) Company shall deliver or cause to be delivered documents reasonably requested by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on Administrative Agent in connection with any such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counseltransaction.
Appears in 2 contracts
Samples: Credit Agreement (U.S. Silica Holdings, Inc.), Credit Agreement (U.S. Silica Holdings, Inc.)
Extension. Provided that, at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) Notwithstanding anything to the contrary in this Lease is in full force and effectAgreement, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means pursuant to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each one or more offers (each, an “Extended TermExtension Offer”) made from time to time by the Borrower to all Lenders holding Term Loans with a like maturity date or all Lenders having Revolving Credit Commitments with a like commitment termination date, in each case on a pro rata basis (based on the aggregate outstanding principal amount of such respective Term Loans or amounts of Revolving Credit Commitments) and on the same terms to each such Lender, the Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date and/or commitment termination of each such Lender’s Term Loans and/or Revolving Credit Commitments of such class, and, subject to the terms hereof, otherwise modify the terms of such Term Loans and/or Revolving Credit Commitments pursuant to the terms of the relevant Extension Offer (including by increasing the interest rate and/or fees payable in respect of such Term Loans and/or Revolving Credit Commitments (and related outstandings) and/or modifying the amortization schedule in respect of such Lender’s Term Loans) (each, an “Extension” and each group of Term Loans or Revolving Credit Commitments, as applicable, in each case as so extended, as well as the original Term Loans and the original Revolving Credit Commitments (in each case not so extended), being a separate “tranche”). The , so long as the following terms are satisfied:
(1) no Default or Event of Default will have occurred and be continuing at the time the Extension Offer is delivered to the Lenders or at the time of such Extension;
(2) except as to interest rates, fees and final commitment termination date (which will be determined by the Borrower and set forth in the relevant Extension Offer, subject to acceptance by the applicable Lenders), the Revolving Credit Commitment of any Lender that agrees to an Extension with respect to such Revolving Credit Commitment extended pursuant to an Extension (an “Extended Term shall commence immediately following Revolving Credit Commitment”) and the end of the Original Term related outstandings will be a Revolving Credit Commitment (or the first Extended Terrarelated outstandings, as the case may be. All ) with the same terms (or terms not less favorable to existing Lenders holding Revolving Credit Commitments) as the original Revolving Credit Commitments (and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except related outstandings); provided that (i1) Tenant shall have no further right to extend the Term beyond the second borrowing and payments (except for (A) payments of interest and fees at different rates on Extended Term hereinabove providedRevolving Credit Commitments (and related outstandings), (iiB) Monthly Rent shall be as provided herein, repayments required upon the commitment termination date of the non-extending tranche of Revolving Credit Commitments and (inC) Tenant shall not repayment made in connection with a permanent repayment and termination of commitments) of Revolving Loans with respect to Extended Revolving Credit Commitments after the applicable Extension date will be entitled made on a pro rata basis with all other Revolving Credit Commitments, (2) subject to Tenant’s Construction Allowance or any other contribution Section 10.5(c), all Swing Line Loans and Letters of Credit will be participated in on a pro rata basis by Landlord all Lenders with Revolving Credit Commitments (including Extended Revolving Credit Commitments) in accordance with their percentage of the Revolving Credit Commitments, (3) assignments and participations of Extended Revolving Credit Commitments and related Revolving Loans will be governed by the same assignment and participation provisions applicable to the cost of improvements or alterations other Revolving Credit Commitments and Revolving Loans and (4) at no time will there be Revolving Credit Commitments hereunder (including Extended Revolving Credit Commitments and any existing Revolving Credit Commitments) which have more than two (2) different maturity dates;
(3) except as to interest rates, fees, amortization, final maturity date, premium, required prepayment dates and participation in prepayments (which will, subject to the Premises. Tenant shall exercise its option immediately succeeding clauses (4), (5) and (6), be determined by the Borrower and set forth in the relevant Extension Offer, subject to extend this Lease for acceptance by the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”Lenders), which notice shall apply the Term Loans of any Lender that agrees to the entire Premises and shall be irrevocable. Tenant may exercise its option an Extension with respect to extend for each such Term Loans owed to it (an “Extended Term by giving Landlord a Notice Lender”) extended pursuant to Extend not later than twelve any Extension (12“Extended Term Loans”) months prior will have the same terms as the tranche of Term Loans subject to such Extension Offer (except for covenants or other provisions contained therein or other provisions contained therein applicable only to periods after the expiration then Latest Term Loan Maturity Date);
(4) the final maturity date of any Extended Term Loans will be no earlier than the then current term, time being Latest Term Loan Maturity Date of the essence. If Tenant fails Term Loans extended thereby;
(5) the Weighted Average Life to give a timely Notice Maturity of any Extended Term Loans will be no shorter than the Weighted Average Life to Extend within the time provided above, this Lease shall automatically expire at the end Maturity of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Loans extended thereby;
(6) any Extended Term by delivering Loans may participate on a pro rata basis or a less than pro rata basis (but not greater than a pro rata basis except for prepayments with the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent proceeds of the fair market rent for comparable laboratory space Credit Agreement Refinancing Indebtedness and in Cambridge, Massachusetts, projected as respect of the commencement an earlier maturing tranche) with non-extending tranches of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended TermTerm Loans in any voluntary or mandatory prepayments hereunder, in each case also referred as specified in the respective Extension Offer;
(7) there will be no more than three (3) Extended Term Loan tranches at any time during the term of this Agreement; and
(ii) if the aggregate principal amount of Term Loans (calculated on the outstanding principal amount thereof) or Revolving Credit Commitments in respect of which a Lender will have accepted the relevant Extension Offer will exceed the maximum aggregate principal amount of Term Loans or Revolving Credit Commitments offered to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year be extended by the Borrower pursuant to such Extension Offer, then the Term Loans or Revolving Credit Commitments of such Lender will be extended ratably up to such maximum amount based on the Extended Termrespective principal or commitment amounts with respect to which such Lender have accepted such Extension Offer. With respect to all Extensions consummated by the Borrower pursuant to this Section, if that (i) such Extensions will not constitute voluntary or mandatory payments or prepayments for purposes of Sections 2.13 or 2.14 and (ii) no Extension Offer is required to arrive be in any minimum amount or any minimum increment; provided that the Borrower may at fair market rentits election specify as a condition to consummating any such Extension that a minimum amount (to be determined and specified in the relevant Extension Offer in the Borrower’s sole discretion and may be waived by the Borrower) of Term Loans or Revolving Credit Commitments (as applicable) of any or all applicable tranches be tendered. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent The Administrative Agent, the Collateral Agent, the Issuing Banks, the Swing Line Lenders and Parking Fee the Lenders hereby consent to the transactions contemplated by this Section (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Term within thirty Loans and/or Extended Revolving Credit Commitments on the such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement or any other Credit Document that may otherwise prohibit or conflict with any such Extension or any other transaction contemplated by this Section.
(30iii) days No consent of any Lender, any Issuing Bank, any Swing Line Lender, the Collateral Agent or the Administrative Agent will be required to effectuate any Extension, other than (A) the consent of each Lender agreeing to such Extension with respect to one or more of its Term Loans and/or Revolving Credit Commitments (or a portion thereof) and (B) with respect to any Extension of the Revolving Credit Commitments, the consent of the Issuing Banks and the Swing Line Lenders. All Extended Term Loans, Extended Revolving Credit Commitments and all obligations in respect thereof will be Obligations under this Agreement and the other Credit Documents and secured by the same Liens on the Collateral that secure all other applicable Obligations. The Lenders hereby irrevocably authorize the Administrative Agent and the Collateral Agent to enter into amendments to this Agreement and the other Credit Documents with the Borrower (on behalf of all Credit Parties) as may be necessary in order to establish new tranches or sub-tranches in respect of Term Loans or Revolving Credit Commitments so extended and such technical amendments as may be necessary in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section (any such amendment, an “Extension Amendment”). In addition, if so provided in such amendment and with the consent of the Issuing Banks, participations in Letters of Credit expiring on or after Landlord’s the applicable commitment termination date will be re-allocated from Lenders holding non-extended Revolving Credit Commitments to Lenders holding Extended Revolving Credit Commitments in accordance with the terms of such amendment; provided, however, that such participation interests will, upon receipt thereof by the relevant Lenders holding Revolving Credit Commitments, be deemed to be participation interests in respect of Tenant’s Notice such Revolving Credit Commitments and the terms of such participation interests will be adjusted accordingly. Without limiting the foregoing, in connection with any Extensions the applicable Credit Parties will (at their expense) amend (and the Collateral Agent is hereby directed by the Lenders to Extend, (but in no event amend) any Mortgage that has a maturity date prior to the last then latest maturity date for Tenant so that such maturity date referenced therein is extended to give the applicable Notice then latest maturity date (or such later date as may be advised by local counsel to Extendthe Collateral Agent). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent The Administrative Agent will promptly notify each Lender of the effectiveness of each such Extension Amendment.
(iv) In connection with respect to any Extension, the Extended Term, Landlord and Tenant shall commence negotiations to agree upon Borrower will provide the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within Administrative Agent at least five (5) days thereafterBusiness Days (or such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, Landlord and Tenant shall will agree to such procedures (including regarding timing, rounding and other adjustments and to ensure reasonable administrative management of the credit facilities hereunder after such Extension), if any, as may be established by, or acceptable to, the Administrative Agent, in each simultaneously submit case acting reasonably to accomplish the purposes of this Section 10.5(g). This Section 10.5(g) will supersede any provisions of this Section 10.5 or Section 2.17 or 10.4 to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselcontrary.
Appears in 2 contracts
Samples: Credit and Guaranty Agreement (Bioventus Inc.), Credit and Guaranty Agreement (Bioventus Inc.)
Extension. Provided that, at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (ia) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant Subtenant shall have the option to extend the initial period constituting the Sublease Term under this Sublease for three (3) additional periods of this Lease for two one (21) extended terms of five (5) years year each (eachonly), an “Extended Term”). The Extended Term shall commence immediately following the end provided that Subtenant gives Sublandlord and Landlord notice of the Original Term exercise of each such option on or before the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except date that is six (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (126) months prior to the expiration date of the then-existing period constituting the Sublease Term, and that at the time each such notice is given and on the commencement of the extension term concerned:
(i) this Sublease is in full force and effect;
(ii) no default by Subtenant beyond any applicable notice and cure period given in this Sublease then current exists; and
(iii) Subtenant has not assigned this Sublease or further subleased all or any portion of the Subleased Premises under any then-existing sublease, and such extension is not being made in connection with or for the purpose of facilitating any such assignment or sublease. Each such extension term shall commence at 12:01 a.m. on the first day following the expiration of the immediately preceding period constituting the Sublease Term.
(b) During each such extension term, all provisions of this Sublease shall apply (but as to this Paragraph 2.3, only with respect to any remaining options to extend, if any), except for any provision relating to the improvement of the Subleased Premises.
(c) If Subtenant exercises any such option in a timely manner, the Parties shall promptly enter into an amendment to this Sublease reflecting the new Sublease Expiration Date, and provide to Landlord a photocopy thereof. If any of the conditions set forth in the foregoing portion of this Paragraph are not satisfied in a timely manner (time being of the essence. If Tenant fails to give a timely Notice to Extend within ), the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its relevant option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, (and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the subsequent option to select one party’s (i.e., Landlord’s extend) shall automatically terminate and be of no further force or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counseleffect.
Appears in 2 contracts
Samples: Sublease (Vivint Solar, Inc.), Sublease (Vivint Solar, Inc.)
Extension. Provided On not more than two occasions following the Closing Date during the term of this Agreement, and no more than once in any 12-month period, the Borrower may, by written notice to the Administrative Agent (which shall promptly deliver a copy to each of the Lenders) not less than 30 days and not more than 60 days prior to the proposed effective date of an extension (such date of effectiveness, an “Extension Date”), request that the Lenders extend the Stated Maturity Date and the Commitments for a period of one year from the Stated Maturity Date then in effect hereunder (the then “Existing Stated Maturity Date”). Each Lender shall, by notice to the Borrower and the Administrative Agent, given no later than 15 days (or such other date specified by the Borrower in such written notice delivered pursuant to the immediately preceding sentence or any supplement thereto) after such written notice is delivered to the Administrative Agent, advise the Borrower whether or not it agrees to the requested extension (each Lender agreeing to a requested extension, a “Consenting Lender” and each Lender declining to agree to a requested extension, a “Declining Lender”). Any Lender that has not so advised the Borrower and the Administrative Agent by the applicable deadline shall be deemed to have declined to agree to such extension and shall be a Declining Lender (unless such Lxxxxx subsequently agrees to such requested extension and the Borrower elects in its sole discretion to treat such Lender as a Consenting Lender). If Lenders constituting the Required Lenders shall have agreed to any such extension request, then the Stated Maturity Date shall, as to the Consenting Lenders and any Lender replacing a Declining Lender, be extended on the Extension Date to the date that is one year after the then Existing Stated Maturity Date. The decision to agree or withhold agreement to any Stated Maturity Date extension request shall be at the sole discretion of each Lender. The Commitment of any Declining Lender shall terminate on the Existing Stated Maturity Date applicable to such Declining Lender. The principal amount of any outstanding Loans made by Declining Lenders, together with any accrued interest thereon and any accrued fees and other amounts payable to or for the accounts of such Declining Lenders hereunder, shall be due and payable on the Existing Stated Maturity Date applicable to such Declining Lenders, and on the Existing Stated Maturity Date applicable to such Declining Lenders, the Borrower shall also make such other prepayments of Loans as shall be required in order that, at after giving effect to the time Tenant elects to exercise the option herein granted and at the time termination of the commencement Commitments of, and all payments to, Declining Lenders pursuant to this sentence, the sum of the Extended Term Aggregate Outstanding Credit Exposure shall not exceed the Aggregate Commitments. Notwithstanding the foregoing provisions of this paragraph, the Borrower shall have the right, pursuant to and in accordance with the requirements of Section 12.01, at any time prior to any Existing Stated Maturity Date, to cause a Declining Lender to assign its interests, rights and obligations hereunder to a Lender or (as hereinafter definedsubject to the consent of the Administrative Agent (such consent not to be unreasonably withheld, conditioned or delayed), solely to the extent such consent would be required for an assignment pursuant to Section 12.01) other Eligible Assignee that agrees to a request for the extension of the Existing Stated Maturity Date, and any such assignee shall for all purposes constitute a Consenting Lender. Notwithstanding the foregoing, no extension of the Stated Maturity Date pursuant to this paragraph shall become effective unless (i) this Lease on the applicable Extension Date, no Unmatured Default or Default has occurred and is in full force and effectcontinuing, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise each of the option representations and warranties set forth herein)in Article 5 of this Agreement is true and correct in all material respects (except to the extent such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, Tenant in which case such representations and warranties are true and correct in all respects) as of such Extension Date, except to the extent any such representation or warranty is stated to relate solely to an earlier date, in which case such representation or warranty shall have been true and correct in all material respects (except to the option to extend extent such representations and warranties are qualified with “materiality” or “Material Adverse Effect” or similar terms, in which case such representations and warranties shall have been true and correct in all respects) on and as of such earlier date, (iii) the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end remaining maturity of the Original Term or Commitments, after giving effect to such extension, does not exceed five years from the first Extended Terraapplicable Extension Date and (iv) the Administrative Agent shall have received an officer’s certificate, as signed by an Authorized Officer of the case may be. All terms and Borrower, certifying that the foregoing conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, and (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected are satisfied as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rentapplicable Extension Date.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.
Appears in 2 contracts
Samples: Credit Agreement (GXO Logistics, Inc.), Credit Agreement (RXO, Inc.)
Extension. Provided that, at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall will have the option (the "Extension Option") to extend the Initial Term for one (1) period of this Lease for two ten (2) extended terms of five (510) years each (eachthe "Extension Period") upon the same terms, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms covenants and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes as herein contained, except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, Base Rent for any such Extension Period will be increased as provided in Section 3.01; and (ii) Monthly Rent there shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to no further extension options at the cost end of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocablesuch ten-year period. Tenant may exercise its such option to extend for each Extended Term by giving written notice to Landlord a Notice to Extend not later than twelve (12"Exercise Notice") at least nine (9) months prior before the expiration of the Initial Term. Upon Tenant's giving such Exercise Notice, the Initial Term of this Lease will be automatically extended for the applicable Extension Period without the execution of an extension or renewal lease.
(a) The Extension Option may be exercised only by written notice delivered by Tenant to Landlord as provided in this Section 2.02(a) and only if, as of the date of delivery of the notice, Tenant is not in Default under this Lease.
(b) The rights contained in this Section 2.02 may be exercised by the originally named Tenant or by any assignee of Tenant's interest in this Lease if the assignment has been approved or deemed approved by Landlord in accordance with Section 8.01.
(c) If Tenant properly exercises the Extension Option and Tenant is not in Default under this Lease on the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Initial Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee extended for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselExtension Period.
Appears in 2 contracts
Samples: Lease Agreement (Churchill Downs Inc), Lease Agreement (Pinnacle Entertainment Inc)
Extension. Provided thatCSC shall notify Sears in writing whether it desires to renew each Exhibit, at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force proposed prices and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All other terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that govern such renewal, not less than eighteen (i18) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord months prior to the cost expiration of improvements or alterations the applicable Exhibit Term. If CSC so notifies Sears that it desires to the Premises. Tenant renew such Exhibit, Sears shall exercise its option inform CSC in writing whether it also desires to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend renew such Exhibit not later less than twelve (12) months prior to the expiration date of the then current termapplicable Exhibit Term, whereupon CSC shall promptly meet with Sears to agree upon the prices and other terms and conditions for such renewal. Failure by either CSC or Sears to provide notice at the time being specified above shall be deemed to be notice of intent not to extend such Exhibit, subject to the essenceother rights of Sears under this Agreement. If Tenant fails either Sears or CSC does not wish to give a timely Notice to Extend within the time provided aboverenew such Exhibit, this Lease such Exhibit shall automatically expire at the end of the then current termapplicable Exhibit Term. IF BOTH CSC AND SEARS DESIRE TO RENEW SUCH EXHIBIT BUT ARE UNABLE TO AGREE IN WRITING UPON RENEWAL PRICES AND OTHER TERMS AND CONDITIONS AT LEAST SIX (6) MONTHS PRIOR TO THE EXPIRATION OF THE APPLICABLE EXHIBIT TERM, unless sooner terminated as provided hereinSEARS MAY, UPON NOTICE TO CSC, ELECT TO EXTEND SUCH EXHIBIT TERM FOR ONE (1) YEAR AT THE PRICES, TERMS AND CONDITIONS IN EFFECT DURING THE LAST YEAR OF THE THEN-CURRENT APPLICABLE EXHIBIT TERM. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, CSC and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant Sears are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day renewal during such extension period, then within five (5) days thereafterif any, Landlord and Tenant such Exhibit shall each simultaneously submit to expire at the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher end of such estimates is not more than one hundred five percent (105%) of extension period unless earlier terminated in accordance with the lower terms and conditions of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”)Exhibit or this Master Agreement, or a successor organization further extended pursuant to ASREC. If the parties cannot agree on such person, then within a second period Section 25.1(b) (Extension of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselServices).
Appears in 2 contracts
Samples: Master Services Agreement (Sears Roebuck & Co), Master Services Agreement (Sears Roebuck & Co)
Extension. Provided that(a) In connection with this Agreement and the transactions contemplated hereby, at on August 14, 2019, the time Tenant elects to exercise Purchaser filed with the option herein granted and at the time SEC a Proxy Statement calling a special meeting of the commencement Purchaser Common Stockholders (the “Extension Stockholders Meeting”), to be held prior to November 21, 2019, seeking the approval of the Extended Term (as hereinafter defined), Purchaser Common Stockholders to (i) this Lease is amend the Existing Charter (the “Existing Charter Amendment”) to extend the date by which the Purchaser has to consummate a “Business Combination” through May 20, 2020, provided that such extension shall initially be through January 21, 2020 (the “Initial Extension Date”) and thereafter it shall be extended by the Purchaser in full force accordance with the Seller’s request for additional 30 days periods ending on May 20, 2020 (such Initial Extension Date and effectany subsequent 30 days periods, the “Outside Extended Date”), (ii) Tenant is not in default hereunder beyond applicable notice and cure period(samend the Trust Agreement (the “Extension Trust Amendment”) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term date on which to commence liquidating the Trust Account in the event Purchaser has not consummated a “Business Combination” by the extended date and to make any other amendments as may be necessary and (iii) any other matters that would be required to be presented at the Extension Stockholders Meeting (such proposals being an “Extension”). The Purchaser shall file such proxy statement sufficiently in advance to ensure that the Extension Stockholders Meeting is held at such time to allow the Extension.
(b) In the event that the Extension is approved by the Purchaser Common Stockholders pursuant to Section 6.22(a), the Seller shall provide a loan (the “Initial Loan”) to the Purchaser in an amount equal to (i) the product of this Lease (A) up to $0.10, and if lower than $0.10, as determined by the Purchaser in good faith consultation with the Seller, multiplied by (B) the number of Purchaser Class A Common Shares outstanding on the date of the Initial Loan that were not redeemed prior to such date, plus (ii) the loan amount specified in a certificate to the Seller signed by the Chief Executive Officer of the Purchaser (the “CEO Certificate”), certifying that the Purchaser has reasonably determined that such loan amount is necessary to be loaned from the Seller to the Purchaser for two it to be able to pay any further costs and expenses and continue operations through the earlier of the Closing or the Outside Extended Date, taking into account all cash resources available to the Purchaser at the relevant time from any source, including any amounts available from the Trust Fund and any interest payments available in connection therewith, which loan amount shall not exceed $300,000.
(2c) extended terms of five (5) years each In the event that after the Initial Loan the Seller requests that the Purchaser extend the then-current Outside Extended Date by an additional 30 days in accordance with Section 6.22(a), then the Purchaser shall so extend the Outside Extended Date and the Seller shall provide a loan (each, an “Additional Loan” and together with the Initial Loan and any other Additional Loans, the “Seller Loans”) to the Purchaser in an amount not to exceed one million dollars (US$ 1,000,000), provided that the Purchaser delivered to the Seller a CEO Certificate, which CEO Certificate shall be delivered by the Purchaser to the Seller prior to the Seller’s determination whether or not to request extension of the then-current Outside Extended Term”)Date. The Extended Term shall commence immediately following Seller Loans will be repayable by the end Purchaser at the Closing or upon consummation of any initial business combination. The Seller Loans will be forgiven by the Original Term or Seller if the first Extended TerraClosing does not occur and the Trust Account liquidates, as except to the case may be. All terms and conditions applicable during extent of any funds that are available to the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that Purchaser (i) Tenant shall have no further right to extend after such liquidation in accordance with the Term beyond the second Extended Term hereinabove providedTrust Agreement, or (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or from any other contribution by Landlord to source.
(d) If the cost of improvements or alterations to Purchaser Common Stockholders approve the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire Extension at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimatesExtension Stockholders Meeting, the parties hereto shall selectmake any and all necessary amendments to this Agreement to reflect the Extension, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization subject to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselSection 11.2.
Appears in 1 contract
Samples: Share Exchange Agreement (Legacy Acquisition Corp.)
Extension. Provided that, Lessor shall notify Lessee at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term least six (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (126) months prior to the expiration date of the then current term, time being Initial Term whether or not Lessor intends to sell or redevelop the Premises after expiration of the essenceInitial Term. If Tenant fails Lessor does not intend to give a timely Notice sell or redevelop the Premises at the expiration of the Initial Term, Lessee shall be entitled to Extend within extend the time provided above, term of this Lease shall automatically expire for an additional ten (10) years commencing at the end of the then current termInitial Term (the “Extension Term”). The Extension Term shall be on the terms and conditions set forth in this Lease, unless sooner terminated as provided herein. If Tenant exercises its option to extend except that during the Extension Term of (i) Lessor may cancel this Lease on at least twelve (12) months advance notice if Lessor decides to redevelop the Premises, and (ii) during the Extension Term Lessee shall pay Lessor rent for the Extended Term by delivering Premises determined as follows: Upon Lessor’s notice that it does not intend to redevelop or sell the Notice to Extend, Tenant covenants to pay to Landlord, during Premises at the Extended end of the Initial Term, Monthly Rent equal to 95 percent Lessor and Lessee shall negotiate in good faith for a period of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, reach agreement on the rental that shall be payable during the Extension Term (but in no event prior the “Extension Term Rent”). The Extension Term Rent shall be a fair market rent for the Premises and any land subject at that time to the last date for Tenant to give Grant of Golf Academy Easement between the parties that is dated concurrently herewith (the “Grant of Golf Academy Easement”) based on its permitted use under this Lease or said Grant as applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rentnot its highest and best use. If Landlord and Tenant the parties reach agreement, the Extension Term Rent shall be documented in an amendment to this Lease. If the parties are unable to reach agreement on the Fair Market Extension Term Rent within thirty (the 30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) -day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to either party may send the other in a sealed envelope its good faith estimate of notice (“Arbitration Note”) that it elects to have the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Extension Term Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter providedfollows (the “Arbitration”). Within seven The Arbitration shall be determined by a single arbitrator mutually selected by the parties. If the parties fail to agree upon a single arbitrator within ten (710) days after of the exchange Arbitration Notice, either party may petition a judge of estimates, the parties Second Circuit Court of the State of Hawaii to appoint an arbitrator meeting the qualifications of this Section and the person thus appointed shall select, as an arbitrator, determine the Extension Term Rent. The arbitrator must be a mutually acceptable recognized Hawaii real estate appraiser who is a member of the American Institute of Real Estate Appraisers (MAI) or Society of Real Estate Counselors (“ASREC”)Appraisers or any similar appraisal organization and shall have all of the powers and duties prescribed by Chapter 658A, or a successor organization to ASRECas amended. If In determining the parties cannot agree on such personExtension Term Rent, then within a second period of seven (7) days, each shall the arbitrator must select a member fair market rent for the Premises and any land subject at that time to the Grant of ASREC Golf Academy Easement based on its permitted use under this Lease and within a third period of seven (7) dayssaid Grant and not its highest and best use, the two appointed persons shall select a third member of ASREC and the third person selected rental may be either fixed periodic rents or percentage rent. The Arbitration shall be commence as soon as practicable after selection of the arbitrator and the arbitrator. If one party shall fail to make such appointment ’s determination must be issued within said second seven sixty (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (1460) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedingsselection. The arbitrator’s determination of decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final final, conclusive and binding upon them both parties, subject to the minimum limitations stated in this Arbitration provision, unless such decision and award shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Feevacated, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Feemodified or corrected, but shall have the option to select one party’s (i.e.all as provided in Chapter 658A, Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking FeeHawaii Revised Statutes, as amended. The costs cost of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, such Arbitration shall be borne equally by the parties, except that each party that retained such counselshall bear its own costs for attorneys’ fees and witness fees.
Appears in 1 contract
Samples: Lease (Maui Land & Pineapple Co Inc)
Extension. Provided thatSublessor may, at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means election, give notice to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than Sublessee at least twelve (12) months prior to the expiration date Expiration Date, of Sublessor's good faith determination that all or a substantial portion of the then current termSubleased Premises is or will be needed by Sublessor within the two (2) years following the Expiration Date for actual occupancy by Sublessor or one or more of its affiliates. Unless Sublessor shall give timely such notice, Sublessee shall have the option, by notice to Sublessor at least nine (9) months' prior to the Expiration Date, to extend the Term of this Sublease for one (1) period of two (2) years. If Sublessee fails to give timely such notice of extension, Sublessee's extension option shall be conclusively deemed waived and of no further force or effect, time being of the essence. If Tenant fails Said extension option is further subject to give the conditions that Sublessee shall not then (x) have assigned this Sublease or sublet more than twenty-five (25%) percent of the Subleased Premises other than a timely Notice permitted assignment pursuant to Extend within Paragraph 16 (3) or (y) be in default under this Sublease beyond such grace or cure period, if any, as may be applicable to such default. The rate of Fixed Rent payable by Sublessee during such two-year extension period shall be the time provided above, this Lease shall automatically expire at higher of (i) the end of Fixed Rent and Additional Rent payable during the then current term, unless sooner terminated as provided herein. If Tenant exercises its option lease year immediately proceeding such two-year extension period or (ii) Fixed Rent determined pursuant to extend the Term method for determining "Base Rent" set forth in subsection (c) (but not subsection (d)) of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent Section 2.3 of the fair market rent for comparable laboratory space in CambridgeLease, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if except that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel."
Appears in 1 contract
Samples: Sublease Agreement (Netegrity Inc)
Extension. Provided that(i) If the Requisite Extending Lenders shall have consented to any such Extension Request, at then as of 5:00 p.m. New York time on the time Tenant elects date which is 20 days after the date of such Extension Request the Revolving Credit Maturity Date shall be deemed to exercise have been extended until, and shall be, the option date specified in the Extension Request, and if the Revolving Credit Maturity Date is so extended, the Competitive Bid Expiration Date and the Letter of Credit Maturity Date (as such dates may have been previously extended pursuant to this Section) shall be deemed to have been extended for the same period. Under all other circumstances neither the Revolving Credit Maturity Date, the Competitive Bid Expiration Date nor the Letter of Credit Maturity Date shall be extended. Notwithstanding anything herein granted and at to the time contrary, in no event shall any such extension of the commencement of Revolving Credit Maturity Date be effective as to any Nonextending Lender. To the Extended Term extent that any Nonextending Lender has not theretofore been replaced as described above, then on the Revolving Credit Maturity Date which is applicable to such Nonextending Lender (as hereinafter definedi.e., the Revolving Credit Maturity Date determined without giving effect to any extension thereof to which such Nonextending Lender has not consented), (i) this Lease is the Parent (or, as applicable, Other Borrowers) shall make payment in full force in cash to such Nonextending Lender of all amounts owed to it hereunder and effectunder the other Loan Documents, including all amounts owed under Section 4.08(c) hereof, (ii) Tenant if the conditions set forth in Section 6.02 are then satisfied, the participation of such Nonextending Lender in all Letters of Credit shall terminate #89365364v21 and each extending Lender shall be deemed to have acquired its pro rata (relative to Commitment Percentage) share of such participation and shall thereafter be liable to the Issuer in respect thereof and (iii) if the conditions set forth in Section 6.02 are not then satisfied, the Parent shall deposit with the Administrative Agent for the account of the Nonextending Lender cash in the amount of such Nonextending Lender’s LC Exposure, which shall be held on the terms of Section 2.11(i); provided that (A) amounts so deposited and interest thereon shall be applied exclusively to amounts for which such Nonextending Lender is not or becomes liable to an Issuer pursuant to Section 2.11(d) and (B) at such time as the LC Exposure of the Nonextending Lender is zero, all such amounts shall be refunded to the Parent.
(ii) Notwithstanding the foregoing, the Revolving Credit Maturity Date and the Commitment Termination Date (without taking into consideration any extension pursuant to this Section 4.01(c)), as such terms are used in default hereunder beyond applicable notice and cure period(s) (which default may be waived reference to any Swingline Lender or any Swingline Loans made by Landlord at its sole discretion and such Swingline Lender, may not be used by Tenant as a means extended without the prior written consent of such Swingline Lender (it being understood and agreed that, in the event such Swingline Lender shall not have consented to negate any such extension, (A) such Swingline Lender shall continue to have all the effectiveness of Tenant’s exercise rights and obligations of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended TerraSwingline Lenders, as applicable, hereunder through the case may be. All terms Revolving Credit Maturity Date in effect prior to giving effect to any extension pursuant to this Section 4.01(c) and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant thereafter shall have no further right obligation to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided hereinmake any Swingline Loan, and (inB) Tenant the Borrowers shall repay all Swingline Loans, and all accrued interest thereon, made by any Swingline Lender that shall not be entitled have consented to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not such extension no later than twelve (12) months prior the day on which such Swingline Loans would have been required to have been repaid in accordance with the expiration date terms hereof without giving effect to any effectiveness of the then current term, time being extension of the essence. If Tenant fails Revolving Credit Maturity Date pursuant to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Termparagraph (and, in each case also referred to below collectively as “Fair Market Rentany event, no later than the Revolving Credit Maturity Date)).” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.
Appears in 1 contract
Samples: Revolving Credit Agreement (Air Products & Chemicals Inc /De/)
Extension. Provided that(a) Notwithstanding anything to the contrary in this Agreement, at the time Tenant elects pursuant to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each one or more offers (each, an “Extension Offer”) made from time to time by the Borrowers to all Lenders (including any Lender in its separate capacity as an Issuing Bank) having Revolving Commitments with a like Revolving Termination Date on a pro rata basis and on the same terms to each such Lender, the Borrowers are hereby permitted to consummate from time to time transactions with individual Lenders and Issuing Banks that accept the terms contained in such Extension Offers to extend the then effective Revolving Termination Date in respect of each such Lender’s Revolving Commitments (and, if applicable, any such Lender’s obligation to issue Letters of Credit pursuant to such extended Revolving Commitments) and otherwise modify the terms of such Revolving Commitments pursuant to the terms of the relevant Extension Offer (including by increasing the interest rate or fees payable in respect of such Revolving Commitments (and related outstandings)) (each, an “Extension”, and each group of Revolving Commitments, as applicable, in each case as so extended, as well as the original Revolving Commitments (in each case not so extended), being a “tranche”; any Extended TermRevolving Commitments shall constitute a separate tranche of Revolving Commitments from the tranche of Revolving Commitments from which they were converted), so long as the following terms are satisfied: (i) no Event of Default shall have occurred and be continuing at the time the offering document in respect of an Extension Offer is delivered to the Lenders or as of the effective date of any such Extension, (ii) except as to interest rates, fees and extended final maturity (which shall be determined by the Borrowers and set forth in the relevant Extension Offer), the Revolving Commitment of any Lender that agrees to an Extension (an “Extending Revolving Lender”) with respect to all or a portion of such Revolving Commitment extended (an “Extended Revolving Commitment”). The , and the related outstandings (“Extended Term Revolving Loans”), shall commence immediately following the end of the Original Term be a Revolving Commitment (or the first Extended Terrarelated outstandings, as the case may be. All ) with substantially the same terms as the original Revolving Commitments (and conditions related outstandings); provided that (1) the Borrowing and repayment (except for (A) payments of interest and fees at different rates on Extended Revolving Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date applicable during to any non-extending Revolving Commitments and (C) repayments made in connection with a permanent repayment and termination of commitments) of Revolving Loans with respect to Extended Revolving Commitments after the Original Term effective date of any Extension shall apply during each be made on a pro rata basis with all other Revolving Commitments, (2) subject to the provisions of clauses (e) and (f) below to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after any Revolving Termination Date when there exists Extended Term including Revolving Commitment with a later Revolving Termination Date, all Swing Line Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Commitments in accordance with their percentage of the Revolving Commitments (and except as provided in clauses (e) and (f) below, without limitation giving effect to changes thereto on an earlier Revolving Termination Date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the obligation to pay Operating Expenses permanent repayment of Revolving Commitments with respect to, and Taxes termination of, Extended Revolving Commitments after the applicable Extension date shall be made on a pro rata basis with all other Revolving Commitments, except that the Borrowers shall be permitted to permanently repay and terminate commitments of any such tranche of Revolving Commitments on a better than pro rata basis as compared to any other tranche of Revolving Commitments with a later Revolving Termination Date than such tranche of Revolving Commitments, (4) assignments and participations of Extended Revolving Commitments shall be governed by the same assignment and participation provisions applicable to the Revolving Commitments and (5) at no time shall there be Revolving Commitments hereunder (including Extended Revolving Commitments) which have more than three different Revolving Termination Dates, (iii) if the aggregate principal of Revolving Commitments in respect of which Lenders shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Revolving Commitments, as the case may be, offered to be extended by the Borrowers pursuant to such Extension Offer, then the Revolving Commitments, as the case may be, of such Lenders shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Lenders have accepted such Extension Offer, (iv) all documentation in respect of such Extension shall be consistent with the foregoing, (v) any applicable Minimum Extension Condition (as defined below) shall be satisfied unless waived by the applicable Borrower, and (vi) each of the Administrative Agent and each Issuing Bank (to the extent such Issuing Bank elects in its sole discretion to continue as an Issuing Bank pursuant to such Extension) shall have consented to such Extension.
(b) With respect to all Extensions consummated by the Borrowers pursuant to this Section 2.17, (i) Tenant such Extensions shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, not constitute voluntary or mandatory payments or prepayments for purposes of Section 2.07 and (ii) Monthly Rent an Extension Offer is required to be in a minimum amount of $200,000,000, provided that the Borrowers may at their election specify as a condition (a “Minimum Extension Condition”) to consummating any such Extension that a greater minimum amount of Revolving Commitments of any or all applicable tranches be tendered. The Administrative Agent and the Lenders hereby consent to the transactions contemplated by this Section 2.17 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Revolving Commitments on such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement (including Sections 3.02, 3.03 and 12.07, but excluding this Section 2.17) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section 2.17; provided that in no event shall any such waiver be deemed to apply to any Event of Default that shall have occurred and is continuing.
(c) Except to the extent set forth in clause (a)(vi) above, no consent of any Lender, any Issuing Bank or the Administrative Agent shall be required to effectuate any Extension, other than the consent of each Lender agreeing to such Extension with respect to one or more of its Revolving Commitments (or a portion thereof); provided that no Issuing Bank shall have any obligation to issue, amend, modify, renew or extend any Letter of Credit pursuant to any Extended Revolving Commitment unless it shall have expressly consented thereto in its capacity as an Issuing Bank. All Extended Revolving Commitments and all obligations in respect thereof shall be Obligations and Secured Obligations under this Agreement and the other Loan Documents that are secured by the Collateral (if any) on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of the Revolving Commitments so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrowers in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.17, including any modification of the definition of “Revolving Termination Date”. In addition, if so provided hereinin such amendment, participations in Letters of Credit expiring on or after the Revolving Termination Date shall be re-allocated from the Lenders holding Revolving Commitments to the Lenders holding Extended Revolving Commitments in accordance with the terms of such amendment; provided, however, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Revolving Commitments, be deemed to be participation interests in respect of such Extended Revolving Commitments and the terms of such participation interests (including the fees applicable thereto) shall be adjusted accordingly. The effective date of any Extension, which shall be subject to the satisfaction of the conditions set forth in clause (a) above, shall be set forth in any such amendment.
(d) In connection with any Extension, the Borrowers shall provide the Administrative Agent at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior written notice thereof
(e) If the Revolving Termination Date in respect of any tranche of Revolving Commitments occurs at a time when another tranche or tranches of Revolving Commitments is or are in effect with a later Revolving Termination Date, then on the earliest occurring Revolving Termination Date all then outstanding Swingline Loans shall be repaid in full on such date (and there shall be no adjustment to the participations in such Swingline Loans as a result of the occurrence of such Revolving Termination Date); provided, however, that if on the occurrence of such earliest Revolving Termination Date (after giving effect to any repayments of Loans and any reallocation of Letter of Credit participations as contemplated in Section 2.02), there shall exist sufficient unutilized Extended Revolving Commitments so that the respective outstanding Swingline Loans could be incurred pursuant the Extended Revolving Commitments which will remain in effect after the occurrence of such Revolving Termination Date, then there shall be an automatic adjustment on such date of the participations in such Swingline Loans and the same shall be deemed to have been incurred solely pursuant to the relevant Extended Revolving Commitments as of the effective date of the applicable Extension, and (in) Tenant such Swingline Loans shall not be entitled so required to Tenant’s Construction Allowance or be repaid in full on such earliest Revolving Termination Date.
(f) If the Revolving Termination Date in respect of any other contribution by Landlord to the cost tranche of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months Revolving Commitments occurs prior to the expiration date of any Letter of Credit, then (i) if one or more other tranches of Revolving Commitments in respect of which the Revolving Termination Date shall not have occurred are then in effect, such Letters of Credit shall, solely to the extent the applicable Issuing Bank in respect of such Letter of Credit shall have consented to such Extension in its capacity as an Issuing Bank, automatically be deemed to have been issued (including for purposes of the then current term, time being obligations of the essence. If Tenant fails Lenders to give a timely Notice purchase participations therein and to Extend within make Loans and payments in respect thereof pursuant to Section 2.02 under (and ratably participated in by the time provided above, this Lease shall automatically expire at Lenders pursuant to) the end Revolving Commitments in respect of such non-terminating tranches up to an aggregate amount not to exceed the aggregate principal amount of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term unutilized Revolving Commitments thereunder at such time (it being understood that no partial face amount of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent any Letter of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, Credit may be so reallocated)) and a Parking Fee for the Parking Spaces equal (ii) to the fair market parking feesextent not reallocated pursuant to immediately preceding clause (i), projected as the Borrowers shall Cash Collateralize any such Letter of Credit. Commencing with the commencement Revolving Termination Date of any tranche of Revolving Commitments, the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year sublimit for Letters of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent Credit shall be determined as provided below. If Landlord and Tenant are unable to agree on agreed with the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC Lenders and the third person shall be Issuing Banks consenting thereto under the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselextended tranches.
Appears in 1 contract
Extension. Provided If the Seller shall be unable to give title to any Facility and the applicable portion of the Leased Property relating thereto on the applicable Closing Date, subject only to the Permitted Exceptions relating to such Facility (and the applicable portion of the Leased Property relating thereto), or if all of the applicable Closing Conditions precedent to the Buyer's obligation to consummate the applicable acquisition shall not have been satisfied on or before such Closing Date, the Buyer shall so notify the Seller on or prior to such Closing Date; whereupon, in order to allow the Seller to so perform or for such Closing Conditions to be satisfied, such Closing Date shall be extended for a period not to exceed thirty (30) days. During such extended period of time, the Seller shall use diligent efforts to remove any defects in title and the parties hereto shall use diligent efforts to cause such Closing Conditions to be satisfied. At either the original or extended time for performance, the Buyer shall have the election to accept such title to such Facility (and the applicable portion of the Leased Property relating thereto) as the Seller can deliver (in its then condition) and/or to waive any unsatisfied Closing Conditions and to pay the applicable Facility Purchase Price for such Facility (and the applicable portion of the Leased Property relating 31 thereto) without deduction; in which case, subject to the provisions of Section 9 hereof, the Seller shall convey such title to such Facility (and the applicable portion of the Leased Property relating thereto) as it can deliver and the applicable Closing shall be consummated in accordance with the terms hereof. In the event that, at the extended time Tenant elects for performance, (a) the Seller shall be unable to exercise give title to such Facility )and the option herein granted and at the time applicable portion of the commencement Leased Property relating thereto), subject only to the Permitted Exceptions relating to such Facility (and the applicable portion of the Extended Term Leased Property relating thereto) and the Buyer does not elect to accept such title to such Facility (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond the applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise portion of the option set forth herein), Tenant shall have Leased Property relating thereto) as the option Seller can deliver and/or (b) the Closing Conditions precedent to extend the Term Buyer's obligation to consummate the acquisition of this Lease for two such Facility (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following and the end applicable portion of the Original Term Leased Property relating thereto) have not been satisfied or waived, then, the first Extended Terra, as Buyer's option relating to such Facility and the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date portion of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease Leased Property relating thereto shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected terminate as of the commencement of the Extended Termapplicable Closing Date, and a Parking Fee for the Parking Spaces equal as so extended, without recourse to the fair market parking feesparties, projected except as of the commencement of the Extended Term, in each case also referred otherwise provided herein to below collectively as “Fair Market Rentsurvive such termination.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.
Appears in 1 contract
Extension. Provided that(a) If a Pay Out Event has not occurred or has occurred but has been remedied on or before the 30th Business Day preceding the Extension Date, the Transferor, in its sole discretion, may deliver to the Trustee on or before such date a notice substantially in the form of Exhibit B (the "Extension Notice") to this Variable Funding Supplement. The Trustee shall mail a copy of the Extension Notice and all documents annexed thereto to the Investor Certificateholders of record on the date of receipt thereof. The Transferor shall state in the Extension Notice that it intends to extend the Revolving Period until the later Amortization Period Commencement Date set forth in the Extension Notice. The Extension Notice shall also set forth the next Extension Date. The following documents shall be annexed to the Extension Notice: (i) a form of the Opinion of Counsel addressed to the Transferor and the Trustee to the effect that despite the Extension the Transferor will not be treated as an association taxable as a corporation (the "Extension Tax Opinion"); (ii) a form of the Opinion of Counsel addressed to the Transferor and the Trustee (the "Extension Opinion") to the effect that (A) the Transferor has the corporate power and authority to effect the Extension, (B) the Extension has been duly authorized by the Transferor, and (C) all conditions precedent to the Extension required by this Section 6.16 have been fulfilled; and (iii) a form of Investor Certificateholder Election Notice substantially in the form of Exhibit C (the "Election Notice") to this Variable Funding Supplement. In addition, the Extension Notice shall state that any Investor Certificateholder electing to approve the Extension must do so on or before the Election Date (as defined below) by returning the annexed Election Notice properly executed to the Trustee in the manner described below. The Extension Notice shall also state that an Investor Certificateholder may withdraw any such election in whole or in part on or before the Election Date, and the Transferor, in its sole discretion, may, prior to the Election Date, withdraw its election to extend the Revolving Period. Any Holder that elects to approve an Extension hereunder shall deliver a duly executed Election Notice to the Trustee at the time Tenant elects address designated in the Extension Notice on or before 3:00 p.m., New York City time, on or before the fifth Business Day preceding the Extension Date (such Business Day constituting the "Election Date").
(b) No Extension shall occur until prior satisfaction of the following conditions at the close of business on the Election Date: (i) no Pay Out Event shall have occurred and be continuing, (ii) there shall have been delivered to exercise the option herein granted Trustee (A) the Extension Tax Opinion and the Extension Opinion, each addressed to the Transferor and the Trustee and (B) written confirmation from each Rating Agency rating the Class A Certificates or the Class B Certificates or providing informal ratings on such Series 1999-1 Variable Funding Certificates for the benefit of a Class A Certificateholder or Class B Certificateholder that the Extension will not cause such Rating Agency to lower its then current rating or informal rating or withdraw its ratings or informal ratings of such Investor Certificates, (iii) each holder of Class A Certificates and each holder of Class B Certificates shall have elected to approve the Extension by returning to the Trustee on or before the Election Date the executed Election Notice annexed to the Extension Notice delivered to such Class A Certificateholders and Class B Certificateholders pursuant to subsection 6.16(a) of the Agreement, (iv) if provided for by the Transferor, in its sole discretion, in the Extension Notice, the holders of a specified minimum amount of outstanding Class C Certificates shall have elected to approve of the Extension by returning to the Trustee on or before the Election Date the executed form of Election Notice annexed to the Extension Notice delivered to such Class C Certificateholders pursuant to subsection 6.16(a) of the Agreement and (v) the Transferor shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each to the effect that all conditions precedent in this subparagraph (b) have been satisfied. If, by the close of business on the Election Date, all of the conditions stated in this subsection 6.16(b) of the Agreement have not been satisfied and all such documents delivered to the Trustee pursuant to this subsection 6.16(b) of the Agreement are not in form satisfactory to it, or if the Transferor has notified the Trustee, prior to the Election Date, that the Transferor has exercised its right to withdraw its election of an Extension, no Extension shall occur.
(c) The execution by the required number of Investor Certificateholders of the applicable Election Notice and return thereof to the Trustee by the required date and time, the continued election by the Transferor to extend the Revolving Period at the Election Date, and the compliance with all of the provisions of this Section 6.16, shall evidence an extension or renewal of the obligations represented by the Investor Certificates delivered in exchange therefor, and not a novation or extinguishment of such obligations or a substitution with respect thereto.
(d) To the extent required by applicable laws and regulations, as evidenced by an Opinion of Counsel delivered by the Transferor to the Trustee, the provisions of this Section 6.16 shall or may be modified to comply with all applicable laws and regulations in effect at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rentprepared Extension.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.
Appears in 1 contract
Samples: Series 1999 1 Variable Funding Supplement (Federated Department Stores Inc /De/)
Extension. A. Provided thatthat a default has not occurred hereunder, at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant Sublessee shall have one option (the option "Option") to extend the Term term of this Lease Sublease for an additional term of forty-two (242) extended terms of five (5) years each (eachmonths, an “Extended Term”). The Extended Term shall commence immediately following commencing when the end of initial term expires and terminating March 31, 2006, upon the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premisesset forth in this section. Tenant shall Sublessee may exercise its such option to extend this Lease for the Extended Term by giving Landlord Sublessor written notice of its election to extend intention not less than nine (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later 9) months nor more than twelve (12) months prior to the expiration date of the initial term of this Sublease. The Option is personal to PlaceWare, Inc. or a corporate affiliate of PlaceWare, Inc., and may be not exercised following an assignment of this Sublease or a sublease of all or any portion of the Subleased Premises.
B. If the Option is exercised, the base rent for the Subleased Premises shall become the greater of Ninety-Eight Thousand Dollars ($98,000) per month and the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease fair market monthly rent ("FMR") for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected Subleased Premises as of the commencement date of the Extended Termextended term, and a Parking Fee for shall be subject to rent escalations, if appropriate, as determined by the Parking Spaces equal agreement of the parties or, if the parties cannot agree within sixty (60) days prior to the fair market parking fees, projected as of the commencement of the Extended Termextended term, then by an appraisal. All other terms and conditions contained in each case also referred this Sublease shall remain in full force and effect and shall apply during the Option term. If it becomes necessary to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year determine the FMR by appraisal, real estate appraiser(s), all of whom shall be Members of the Extended TermAppraisal Institute and shall have at least five (5) years experience appraising comparable space located in the vicinity of the Subleased Premises, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. appointed and shall act in accordance with the following procedures:
(i) If Landlord and Tenant the parties are unable to agree on the Fair Market Rent FMR within said thirty the allowed time, either party may demand an appraisal by giving written notice to the other party, which demand to be effective must state the name, address and qualifications of an appraiser selected by the party demanding an appraisal (30the "Notifying Party"). Within ten (10) days following the Notifying Party's appraisal demand, the other party (the "Non-Notifying Party") shall either approve the appraiser selected by the Notifying Party or select a second properly qualified appraiser by giving written notice of the name, address and qualification of such appraiser to the Notifying Party. If the Non-Notifying Party fails to select an appraiser within the ten (10) day period, then within five (5) days thereafterthe appraiser selected by the Notifying Party shall be deemed selected by both parties and no other appraiser shall be selected. If two appraisers are selected, Landlord and Tenant they shall each simultaneously submit to the other in select a sealed envelope its good faith estimate of the Fair Market Rentthird appropriately qualified appraiser. If the higher two appraisers fail to select a third qualified appraiser, the third appraiser shall be appointed by the then presiding judge of the county where the Subleased Premises are located upon application by either party.
(ii) If only one appraiser is selected, that appraiser shall notify the parties in simple letter form of its determination of the FMR within fifteen (15) days following his selection, which appraisal shall be conclusively determinative and binding on the parties as the appraised FMR. If multiple appraisers are selected, the appraisers shall meet not later than ten (10) days following the selection of the last appraiser. At such estimates is not meeting the appraisers shall attempt to determine the FMR as of the commencement date of the extended term by the agreement of at least two (2) of the appraisers. If two (2) or more of the appraisers agree on the FMR at the initial meeting, such agreement shall be determinative and binding upon the parties hereto and the agreeing appraisers shall, in simple letter form executed by the agreeing appraisers, forthwith notify both Sublessor and Sublessee of the amount set by such agreement. If multiple appraisers are selected and two (2) appraisers are unable to agree on the FMR, all appraisers shall submit to Sublessor and Sublessee an independent appraisal of the FMR in simple letter form within twenty (20) days following appointment of the final appraiser. The parties shall then determine the FMR by averaging the appraisals; provided that any high or low appraisal, differing from the middle appraisal by more than one hundred five ten percent (10510%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, howevermiddle appraisal, shall be borne by disregarded in calculating the average.
(iii) If only one appraiser is selected, then each party shall pay one-half of the fees and expenses of that retained such counselappraiser. If three appraisers are selected, each party shall bear the fees and expenses of the appraiser it selects and one-half of the fees and expenses of the third appraiser.
Appears in 1 contract
Samples: Sublease (Placeware Inc)
Extension. Provided that(a) The Borrower shall, at if it wishes to extend the time Tenant elects to exercise the option herein granted and at the time Maturity Date of the commencement Credit, make a request to each Lender by written notice given to the Agent not earlier than 90 days prior to the anniversary date of the Extended Term Effective Date and not later than 60 days prior to the anniversary date of the Effective Date; provided that no such notice shall be effective unless each of the Borrowers (as hereinafter defineddefined in the Hudbay ARCA) has delivered a written notice pursuant to Section 2.5 of the Hudbay ARCA that it wishes to extend the "Maturity Date" (as defined in the Hudbay ARCA). Each Lender shall provide a written response to that request to the Agent within 30 days; provided that no such response shall be effective unless such Lender has provided the same response (accepting or declining the proposed extension under the Hudbay ARCA) and if such notices are not the same such Lender shall be deemed to have declined such extension request under both this Agreement and the Hudbay ARCA. Promptly thereafter, the Agent shall notify the Borrower of the response of the Lenders, and shall include the names of all Declining Lenders (such notice, the "Accepting Lender Notice").
(b) If all of the Lenders agree to extend the Maturity Date, the Maturity Date shall be extended by 365 days from the then applicable Maturity Date.
(c) If the aggregate amount of the Commitments of the Accepting Lenders is less than 662/3% of the aggregate Commitments of all Lenders then in effect, the Maturity Date shall not be extended.
(d) If the aggregate amount of the Commitments of the Accepting Lenders are equal to or greater than 662/3% but less than 100% of the aggregate Commitments of all Lenders, unless the Borrower elects not to extend the Maturity Date by giving a further written notice to the Agent to that effect within 10 days after the Agent notifies the Borrower of the Lenders' response, the Maturity Date shall be extended by one year from the then applicable Maturity Date provided that the Borrower has, before the then applicable Maturity Date, replaced or cancelled the Commitments of all Declining Lenders in the following manner:
(i) this Lease is in full force and effectThe Borrower may, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate any time on or before the effectiveness of Tenant’s exercise 10th Banking Day following the receipt of the option set forth herein)Accepting Lender Notice, Tenant shall have by written request to the option to extend the Term of this Lease for two (2) extended terms of five (5) years each Agent (each, an “Extended Term”"Acquisition Request Notice"), a copy which shall be provided by the Agent to each Lender within one Banking Day of the Agent receiving same, request that the rights and obligations of the Declining Lenders be assigned in accordance with this Section 2.4 and the following shall apply:
(A) Any Accepting Lender may, at its option, acquire all or any portion of the rights and obligations of the Declining Lenders under the Loan Documents (all of such rights and obligations being herein called the "Available Amount") by giving written notice to the Agent (an "Acquisition Notice") of the portion of the Available Amount which it is prepared to acquire (the "Desired Acquisition Amount") provided that it has provided an identical Acquisition Notice (as defined in the Hudbay ARCA) under Section 2.5 of Hudbay ARCA. Such Acquisition Notice shall be given within 10 days following the giving of the Acquisition Request Notice by the Borrower to the Agent (such deadline being herein called the "Acquisition Deadline"). The Extended Term If only one Accepting Lender gives an Acquisition Notice to the Agent or if more than one Accepting Lender gives an Acquisition Notice to the Agent but the aggregate of their Desired Acquisition Amounts is less than or equal to the Available Amount, then each such Accepting Lender shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise acquire its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date Desired Acquisition Amount of the then current term, time being rights and obligations of the essenceDeclining Lenders under the Loan Documents. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) Accepting Lender gives an Acquisition Notice to the Agent and the aggregate of the lower Desired Acquisition Amounts is greater than the Available Amount, then each such Accepting Lender shall be entitled to acquire a pro rata share of the rights and obligations of the Declining Lenders under the Loan Documents, such pro rata share being determined based on the relative Desired Acquisition Amount of each such Accepting Lender.
(B) Promptly following the Acquisition Deadline, the Agent shall give to the Borrower and each Lender a written notice identifying the Available Amount of each Declining Lender and the portion thereof to be acquired by each Accepting Lender. Each of such estimates, then the Fair Market Rent acquisitions shall be completed on the average date which is five Banking Days following the Acquisition Deadline, in accordance with the procedures set out in Section 11.2.
(C) If the Available Amount is not completely acquired by the Accepting Lenders, the Borrower may locate New Lenders, to acquire all or a portion of the two estimates. If balance of the matter rights and obligations of the Declining Lenders under the Loan Documents on the date which is 20 Banking Days following the Acquisition Deadline, in accordance with the procedures set out in Section 11.2.
(D) Any outstanding Commitment of the Declining Lenders which is not resolved acquired by Accepting Lenders or New Lenders under Sections 2.5(d)(i)(B) or 2.5(d)(i)(C) shall be repaid by the exchange Borrower on the then applicable Maturity Date, and the Commitments of estimates, then Fair Market Rent the Declining Lenders not so acquired shall be determined by arbitration as hereinafter provided. Within seven (7) days after cancelled on the exchange of estimates, then applicable Maturity Date and the parties shall select, as an arbitrator, a mutually acceptable member amount of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each Credit shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall thereupon be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen reduced by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs aggregate of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or TenantCommitments so cancelled, however, shall be borne by the party that retained such counselif any.
Appears in 1 contract
Extension. Provided that(i) Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time to time by the Borrower to all Lenders holding Term Loans (other than Term C Loans) with a like maturity date, in each case on a pro rata basis (based on the aggregate outstanding principal amount of such respective Term Loans) and on the same terms to each such Lender, the Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date and/or commitment termination of each such Lender’s Term Loans of such class, and, subject to the terms hereof, otherwise modify the terms of such Term Loans pursuant to the terms of the relevant Extension Offer (including by increasing the interest rate and/or fees payable in respect of such Term Loans (and related outstandings) and/or modifying the amortization schedule in respect of such Lender’s Term Loans) (each, an “Extension” and each group of Term Loans, in each case as so extended, as well as the original Term Loans, being a separate “tranche”), so long as the following terms are satisfied:
(1) no Default or Event of Default will have occurred and be continuing at the time Tenant elects the Extension Offer is delivered to exercise the option herein granted and Lenders or at the time of such Extension;
(2) except as to interest rates, rate floors, fees, amortization, final maturity date, Weighted Average Life to Maturity, premium, required prepayment dates and participation in prepayments (which will, subject to the commencement of immediately succeeding clauses (3), (4), and (5), be determined by the Borrower and set forth in the relevant Extension Offer, subject to acceptance by the Extended Term Lenders), the Term Loans of any Lender that agrees to an Extension with respect to such Term Loans owed to it (an “Extended Term Lender”) extended pursuant to any Extension (“Extended Term Loans”) will have the same terms as hereinafter definedthe tranche of Term Loans subject to such Extension Offer (except for covenants or other provisions contained therein or other provisions contained therein applicable only to periods after the then Latest Term Loan Maturity Date);
(3) the final maturity date of any Extended Term Loans will be no earlier than the Latest Term Loan Maturity Date of the Term Loans extended thereby;
(4) the Weighted Average Life to Maturity of any Extended Term Loans will be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans extended thereby;
(5) any Extended Term Loans may participate on a pro rata basis, a less than pro rata basis or a greater than pro rata basis (except that such Extended Term Loans may not participate on a greater than pro rata basis as compared to any earlier or equivalent maturing Class of Term Loans (other than pursuant to a refinancing)) with non-extending tranches of Term Loans in any mandatory prepayments hereunder, in each case as specified in the respective Extension Offer;
(6) there will be no more than three (3) Extended Term Loan tranches at any time during the term of this Agreement; and
(ii) if the aggregate principal amount of Term Loans (calculated on the outstanding principal amount thereof) in respect of which a Lender will have accepted the relevant Extension Offer will exceed the maximum aggregate principal amount of Term Loans offered to be extended by the Borrower pursuant to such Extension Offer, then the Term Loans of such Lender will be extended ratably up to such maximum amount based on the respective principal or commitment amounts with respect to which such Lender have accepted such Extension Offer. With respect to all Extensions consummated by the Borrower pursuant to this Section 10.5(g), (i) this Lease is in full force such Extensions will not constitute voluntary or mandatory payments or prepayments for purposes of Sections 2.13 or 2.14 and effect, (ii) Tenant no Extension Offer is not required to be in default hereunder beyond applicable notice any minimum amount or any minimum increment; provided that the Borrower may at its election specify as a condition to consummating any such Extension that a minimum amount (to be determined and cure period(s) (which default specified in the relevant Extension Offer in the Borrower’s sole discretion and may be waived by Landlord the Borrower) of Term Loans of any or all applicable tranches be tendered. The Administrative Agent, the Collateral Agent and the Lenders hereby consent to the transactions contemplated by this Section (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Term Loans on such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement or any other Credit Document that may otherwise prohibit or conflict with any such Extension or any other transaction contemplated by this Section.
(iii) No consent of any Lender, the Collateral Agent or the Administrative Agent will be required to effectuate any Extension, other than the consent of each Lender agreeing to such Extension with respect to one or more of its Term Loans (or a portion thereof). All Extended Term Loans and all obligations in respect thereof will be Obligations under this Agreement and the other Credit Documents and secured by the same Liens on the Collateral that secure all other applicable Obligations. The Lenders hereby irrevocably authorize the Administrative Agent and the Collateral Agent to enter into amendments to this Agreement and the other Credit Documents with the Borrower (on behalf of all Credit Parties) as may be necessary in order to establish new tranches or sub-tranches in respect of Term Loans so extended and such technical amendments as may be necessary in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section (any such amendment, an “Extension Amendment”). Without limiting the foregoing, in connection with any Extensions the applicable Credit Parties will (at its sole discretion their expense) amend (and the Collateral Agent is hereby directed by the Lenders to amend) any Mortgage that has a maturity date prior to the then latest maturity date so that such maturity date referenced therein is extended to the then latest maturity date (or such later date as may not be used advised by Tenant as a means local counsel to negate the Collateral Agent). The Administrative Agent will promptly notify each Lender of the effectiveness of Tenant’s exercise of each such Extension Amendment.
(iv) In connection with any Extension, the option set forth herein), Tenant shall have Borrower will provide the option to extend the Term of this Lease for two (2) extended terms of Administrative Agent at least five (5) years each Business Days (eachor such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, an “Extended Term”). The Extended Term shall commence immediately following the end and will agree to such procedures (including regarding timing, rounding and other adjustments and to ensure reasonable administrative management of the Original Term or the first Extended Terracredit facilities hereunder after such Extension), if any, as may be established by, or acceptable to, the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended TermAdministrative Agent, in each case also referred acting reasonably to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year accomplish the purposes of the Extended Term, if that is required to arrive at fair market rentthis Section 10.5(g). Landlord shall notify Tenant This Section 10.5(g) will supersede any provisions of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior this Section 10.5 or Section 2.17 or 10.4 to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.contrary
Appears in 1 contract
Extension. Provided thatNo earlier than 90 days and no later than 60 days prior to the Maturity Date (the unextended Maturity Date, at the time Tenant elects as applicable, being referred to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (eachSection 2.6 as, an “Extended TermExtension Date”), the Borrower may, subject to satisfaction of the conditions precedent for a Borrowing set forth in Sections 4.2(a) and 4.2(b), deliver to the Administrative Agent a request for an extension of the Extension Date for a period of up to 365 days after the then applicable Extension Date (the “Extension Request”); provided that the Borrower may withdraw an Extension Request, even if the Required Lenders have already consented to such Extension Request, by notice in writing delivered to the Administrative Agent not later than the close of business on the third Business day prior to the Extension Date. The Extended Term Administrative Agent shall commence immediately following promptly notify the end Lenders of its receipt of any Extension Request, with particulars thereof. Within 30 days after the Original Term or Administrative Agent has notified a Lender of its receipt of an Extension Request, such Lender shall notify the first Extended Terra, as Borrower and the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice Administrative Agent of its election to extend or not extend the Extension Date as requested in such Extension Request (which election to extend or not extend shall be made by each such Lender in its sole and absolute discretion). Any failure by any Lender to notify the Borrower and the Administrative Agent of its election to extend or not extend the Extension Date as requested in such Extension Request shall be deemed to be a refusal to extend the Extension Date. Unless the Extension Request has been withdrawn by the Borrower in accordance with the proviso above, if the Required Lenders approve in writing the extension of the Extension Date requested in such Extension Request, the Extension Date shall automatically and without any further action by any Person be extended for the period specified in such Extension Request; provided that each such extension shall be for a maximum of 365 days, and if an Extension Request has been made, but there are one or more Lenders which do not consent in writing to the Extension Request within 35 days after receipt of the notice of the Extension Request from the Administrative Agent (a “Notice to ExtendNon-Extending Lender”), which notice shall apply to then the entire Premises and Borrower shall be irrevocable. Tenant may exercise entitled to choose one of the following options, and the Borrower shall notify the Administrative Agent of its option to extend for each Extended Term by giving Landlord a Notice to Extend choice not later than twelve (12) months 10 days prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.Extension Date:
Appears in 1 contract
Samples: Credit Agreement (SSR Mining Inc.)
Extension. Provided thatTenant shall have the right, at subject to the time Tenant elects provisions hereinafter provided, to extend the term of this Lease for one period of five (5) years on the terms and provisions of this Article. Such extension period shall herein be referred to as the "Extension Term". The conditions to Tenant's exercise of such right and to the option herein granted and at the time of the commencement of the Extended Extension Term shall be as follows:
(as hereinafter defined), (ia) That this Lease is in full force and effect, (ii) effect and Tenant is not in default hereunder beyond applicable notice in the performance of any of the terms, covenants and cure period(s) (which default may be waived by conditions herein contained at the time of exercise of the right of extension or at the commencement of the Extension Term, but Landlord shall have the right at its sole discretion to waive in writing the non-default conditions herein.
(b) That such Extension Term shall be on the same terms, covenants and may conditions as in this Lease; provided, however, the Base Rent for the initial twelve (12) month period of the Extension Term shall be an amount equal to the fair market base rent for the Premises as of the Base Rent Determination Date (as hereinafter defined) for a five-year term and the Base Rent for the remainder of the Extension Term shall be determined by applying the fair market rate and schedule of escalations, as of the Base Rent Determination Date, to said fair market base rent. The determination of such fair market base rent for the Premises and the fair market rate and schedule of escalations thereof (collectively, the "Extension Term FMV Base Rent") shall be made by Landlord and Tenant, each acting in good faith, no later than the date that is eight (8) months prior to commencement of the Extension Term (the "Base Rent Determination Date"), and if Landlord and Tenant do not timely agree upon the Extension Term FMV Base Rent, the same shall be used determined pursuant to the immediately succeeding Article of this Lease. Notwithstanding anything to the contrary contained in this Article, in no event shall the Base Rent, on a per rentable square foot basis, for said initial twelve-month period be less than the annual Base Rent, on a per rentable square foot basis, payable by Tenant as a means to negate under the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term terms of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following prior to the end commencement of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that Extension Term.
(ic) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. That Tenant shall exercise its option right to extend this Lease for the Extended Extension Term provided herein, if at all, by giving notifying Landlord written notice in writing of its election to extend (exercise the “Notice right to Extend”), which notice shall apply to renew the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not term of this Lease no later than twelve nine (129) months prior to the expiration date of the Initial Term.
(d) That neither the tenant (the "FFIC Tenant") under that certain Lease Agreement by and between Landlord and Fireman's Fund Insurance Company, nor any tenant leasing a number of rentable square footage in the Building greater than the initial Premises RSF set forth in Section 1.1(A) of this Lease plus any additional space in the Building then current termleased by Tenant from Landlord having any expansion rights, time being rights of first refusal, or similar rights with respect to any portion of the essencePremises (a "Qualifying Tenant"), has elected or agreed to lease or otherwise occupy the Premises or any portion thereof. If Notwithstanding anything to the contrary contained in this Lease, in the event Tenant fails elects to give exercise its right to an Extension Term, and either the FFIC Tenant or a timely Notice Qualifying Tenant then having any expansion rights, rights of first refusal, or similar rights with respect to Extend within the time provided above, this Lease shall automatically expire at the end any portion of the then current termPremises elects, unless sooner terminated as provided herein. If or has elected, to lease or otherwise occupy the Premises or any portion thereof, Landlord may cancel such exercise by Tenant exercises its option by furnishing written notice thereof to extend Tenant on or before the date that is four (4) months prior to the date on which such Extension Term would have commenced absent such cancellation, in which event Tenant's election with respect to such Extension Term shall be null and void, and the Term of this Lease for shall expire upon the Extended Term by delivering expiration of the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Initial Term, Monthly Rent equal subject to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected earlier termination as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rentherein provided.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.
Appears in 1 contract
Samples: Lease Agreement (Viryanet LTD)
Extension. Provided that(a) Upon written notice from Borrower to Bank, at received no earlier than 60 days and no later than 30 days prior to the Maturity Date, Borrower may request an extension of the Advance (in the Currency only) for another period of 364-days and, PROVIDED no Event of Default or default which, with notice or the lapse of time Tenant elects would become an Event of Default, shall then have occurred and be continuing, if the Bank in its sole discretion agrees to exercise such an extension, the option herein granted extended Maturity Date shall be the date which is 364 days from the Maturity Date in effect prior to such extension, subject to the payment of such administrative fees and expenses as Bank may require. For the avoidance of all doubt, it is hereby confirmed, acknowledged and agreed by Borrower that the Bank shall have entire and sole discretion at the time of the commencement of the Extended Term (any extension request as hereinafter defined), (i) this Lease is in full force provided herein to agree or not to agree to such extension and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term upon such additional or the first Extended Terra, as the case may be. All different terms and conditions applicable during as Bank may deem appropriate at such time and under such circumstances, notwithstanding anything to the Original Term contrary herein or otherwise.
(b) Any extended Maturity Date may be extended for a further period of 364 days upon the Borrower's request, subject to the conditions set forth in paragraph (a) preceding, if the Bank, in its sole discretion, shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except agree; PROVIDED, HOWEVER, that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent such extended Maturity Date shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months 6 days prior to the expiration date anniversary of the then current term, time being initial Maturity Date in the year 2004.
(c) Not in derogation but in furtherance of the essence. If Tenant fails Bank's sole discretion to give agree to any such extension, no such extension shall be made unless there shall be a timely Notice Letter of Credit in an amount and for a term at least coextensive with such extension.
(x) At the initial Maturity Date provided herein and on every Maturity Date as extended hereunder, the entire Advance shall be due and payable in full together with accrued interest, fees and any other expenses hereunder unless extended; PROVIDED, if the Bank shall agree to Extend within any such extension, there shall be a mandatory prepayment on the time provided aboveMaturity Date prior to extension, this Lease shall automatically expire at in the end amount which is the lesser of the amount set forth below for such Maturity Date and the entire amount then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, outstanding and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall selectdue, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization condition to ASREC. If the parties cannot agree on any such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.extension: Maturity Date 2000: C$ 500,000 Maturity Date 2001: C$1,000,000 Maturity Date 2002: C$1,500,000 Maturity Date 2003: C$2,000,000 Maturity Date 2004: C$5,000,000
Appears in 1 contract
Samples: Loan Agreement (Genlyte Group Inc)
Extension. Provided that, at The holders of a majority in principal amount of all principal outstanding under the time Tenant elects to exercise Notes (the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined“Majority Holders”), by written notice delivered to the Company not later than ten (i10) this Lease is in full force and effectdays prior to the Initial Maturity Date, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond maturity of this Note and all other Notes for a period of one year (the second Extended Term hereinabove “Extension Right”); provided, however, that the Majority Holders shall not be permitted to exercise the Extension Right (and any prior exercise of such right shall be deemed rescinded and such exercise and any Additional Warrants (as defined below) shall be deemed of no force or effect) without the Company’s consent if the twenty trading-day trailing average closing price of the Company’s Common Stock (or twenty trading-day trailing average closing bid and ask prices of the Company’s Common Stock if it is not listed on a securities exchange) equals at least $0.75 (subject to appropriate adjustment in the event of any stock dividend, stock split, combination or similar recapitalization affecting such shares) at any time prior to the Initial Maturity Date. The Majority Holders may exercise the Extension Right with respect to all, but not less than all, Notes. If the Extension Right is exercised as provided in the first sentence of this Section 1(b), then: (i) the entire unpaid principal balance of this Note and all other Notes, together with all accrued but unpaid interest thereon, shall be due and payable on the date one year after the Initial Maturity Date (such date, the “Extended Maturity Date”); (ii) Monthly Rent interest shall accrue and shall instead be as provided herein, payable in arrears on the Extended Maturity Date; and (iniii) Tenant the Company shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord issue to the cost Payee and the holders of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend all other Notes additional Warrants (the “Notice Additional Warrants”) to Extend”)purchase such number of the Company’s Common Stock as shall equal the principal amount outstanding under the applicable holders’ Note multiplied by two, which notice Additional Warrants shall apply be in the form of Warrant attached as an exhibit to the entire Premises and Purchase Agreement, except that the exercise price per share of Common Stock shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent$0.50.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.
Appears in 1 contract
Samples: Convertible Security Agreement (Bonds.com Group, Inc.)
Extension. Provided that(a) Tenant shall have the option to extend the initial period constituting the Term under this Lease for two (2) additional periods of five (5) years each, provided that Tenant gives Landlord notice of the exercise of each such option on or before the date that is twenty-four (24) months prior to the expiration of the then-existing period constituting the Term, and that at the time Tenant elects to exercise the option herein granted each such notice is given and at the time of on the commencement of the Extended Term (as hereinafter defined), extension term concerned:
(i) this Lease is in full force and effect, ;
(ii) no Tenant Default then exists; and
(iii) Tenant has not assigned this Lease or subleased all or any portion of the Premises under any then-existing sublease (excluding any Non-Consent Transfer), and such extension is not being made in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord connection with or for the purpose of facilitating any such assignment or sublease. Each such extension term shall commence at its sole discretion and may not be used by Tenant as a means to negate 12:01 a.m. on the effectiveness of Tenant’s exercise first day following the expiration of the option set forth herein)immediately preceding period constituting the Term.
(b) During each such extension term, Tenant shall have the option to extend the Term all provisions of this Lease shall apply, except for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following any provision relating to the end improvement of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution Premises by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend at Landlord’s expense.
(the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12c) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its either such option to extend in a timely manner, the Term of this Lease for the Extended Term by delivering the Notice to ExtendParties shall, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit enter into an amendment to this Lease reflecting the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the new Basic Monthly Rent and the Parking Feenew Expiration Date. If Tenant fails to exercise either such option in a timely manner, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the relevant option to select one party’s extend (i.e., Landlord’s and any subsequent option to extend) shall automatically terminate and be of no further force or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counseleffect.
Appears in 1 contract
Samples: Lease (Vivint Solar, Inc.)
Extension. Provided that, at (a) Borrower shall have the time Tenant elects right to exercise extend the option herein granted and maturity of the Loan for two consecutive six (6) month terms provided that at the time of the commencement of the Extended Term (as hereinafter defined), each extension request:
(i) this Lease is the construction of Project has been completed, lien free, in full force a manner satisfactory to and effect, in accordance with the Plans and Specifications approved by Lender;
(ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness No Event of Tenant’s exercise Default then exists under any of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two Loan Documents;
(2iii) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end An appraisal of the Original Term or Project acceptable to Lender shows that the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date outstanding principal balance of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is Loan does not more than one hundred exceed seventy-five percent (10575%) of the lower appraised value of such estimatesthe Project as completed.
(iv) Immediately prior to the First Extension Period, then the Fair Market Rent Project has achieved a minimum Debt Service Coverage Ratio of at least 1.10 to 1.00, and immediately prior to the Second Extension Period, the Project has achieved a minimum Debt Service Coverage Ratio of at least 1.2 to 1.00; and
(v) Borrower shall have paid Lender an extension fee for each extension in the amount of one half of one percent (0.5%) of the outstanding principal balance of the Loan.
(b) In the event that Borrower qualifies for the First Extension Period and elects to extend the Maturity Date as herein provided, monthly payments of accrued, but unpaid interest, at the Contract Rate shall continue to be due and payable on the first day of each month commencing with the month next following the last scheduled monthly payment during the original term of the Loan and successive payments shall be due on the average first day of each month thereafter until the First Extended Maturity Date, when the unpaid principal balance of the two estimatesLoan and accrued, but unpaid interest, thereon shall be paid in full in one final balloon payment unless Borrower qualifies for the Second Extension Period and elects to extend the First Extended Maturity Date.
(c) If Borrower qualifies for the Second Extension Period and elects to extend the First Extended Maturity Date, monthly payments of accrued, but unpaid interest at the Contract Rate shall continue to be due and payable on the first day of each month commencing with the month next following the last scheduled monthly payment of the First Extended Loan Period and successive payments being due on the first day of the month thereafter until the Second Extended Maturity Date, when the unpaid principal balance of the Loan, an accrued but unpaid interest thereon shall be paid in one final balloon payment.
(d) As a condition to such extensions, Borrower and Guarantor shall execute such amendments, notes, documents, agreements and instruments as Lender reasonably deems necessary to extend the maturity of the Loan, and Borrower shall cause the Title Company to endorse the Title Policy to reflect the extended maturity of the Loan, such endorsement to be in form reasonably satisfactory to Lender. If the matter an endorsement is not resolved available, Borrower shall obtain a new Title Policy for Lender, in form satisfactory to Lender. Borrower shall pay all reasonable costs incurred by the exchange of estimatesLender in connection with such extension, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimatesincluding reasonable attorney's fees, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final pay all Title Company charges and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselpremiums.
Appears in 1 contract
Extension. Provided thatIf a Pay Out Event has not occurred or has occurred but has been remedied on or before the 30th Business Day preceding the Extension Date, the Transferor, in its sole discretion, may deliver to the Trustee on or before such date a notice substantially in the form of Exhibit E (the "Extension Notice") to this Series Supplement. The Trustee shall deliver a copy of the Extension Notice and all documents annexed thereto to the Series 1998-3 Securityholders of record on the date of receipt thereof. The Transferor shall state in the Extension Notice that it intends to extend the Revolving Period until the later Amortization Period Commencement Date set forth in the Extension Notice. The Extension Notice shall also set forth the next Extension Date. The following documents shall be annexed to the Extension Notice: (i) a form of the Opinion of Counsel addressed to the Transferor and the Trustee to the effect that despite the extension the Trust will not be treated as an association taxable as a corporation (the "Extension Tax Opinion"); (ii) a form of the Opinion of Counsel addressed to the Transferor and the Trustee (the "Extension Opinion") to the effect that (A) the Transferor has the corporate power and authority to effect the Extension, (B) the extension has been duly authorized by the Transferor, and (C) all conditions precedent to the Extension required by this Section 6.17 have been fulfilled; (iii) a form of Series 1998-3 Securityholder Election Notice substantially in the form of Exhibit F (the "Election Notice") to this Series Supplement; and (iv) a schedule setting forth the Aggregate Interest Rate Caps Notional Amount for the period or periods as indicated from the Extension Date through the new Scheduled Series 1998-3 Termination Date, each as specified in the related Extension Notice. In addition, the Extension Notice shall state that any Series 1998-3 Securityholder electing to approve the Extension must do so on or before the Election Date (as defined below) by returning the annexed Election Notice properly executed to the Trustee in the manner described below. The Extension Notice shall also state that a Series 1998-3 Securityholder may withdraw any such election in whole or in part on or before the Election Date, and the Transferor, in its sole discretion, may, prior to the Election Date, withdraw its election to extend the Revolving Period. Any Holder that elects to approve an Extension hereunder shall deliver a duly executed Election Notice to the Trustee at the time Tenant elects address designated in the Extension Notice on or before 3:00 p.m., New York City time, on or before the fifth Business Day preceding the Extension Date (such Business Day constituting the "Election Date"). No extension shall occur unless each of the following conditions have been satisfied prior to exercise the option herein granted close of business on the Election Date: no Pay Out Event shall have occurred and be continuing; there shall have been delivered to the Trustee (A) the Extension Tax Opinion and the Extension Opinion, each addressed to the Trustee and (B) written confirmation from the Rating Agency that the Extension will not cause such Rating Agency to lower or withdraw its then current rating of such Series 1998-3 Securities; and each of the holders of the Class A Securities, the Class B Securities, and the Class C Securities shall have elected to approve the Extension by returning to the Trustee on or before the Election Date the executed Election Notice annexed to the Extension Notice delivered to the Securityholders pursuant to subsection 6.17(a) of the Agreement. If, by the close of business on the Election Date, all of the conditions stated in this subsection 6.17(b) of the Agreement have not been satisfied and all such documents delivered to the Trustee pursuant to this subsection 6.17(b) of the Agreement are not in form satisfactory to it, or if the Transferor has notified the Trustee, prior to the Election Date, that the Transferor has exercised its right to withdraw its election of an Extension, no Extension shall occur. The execution by the Series 1998-3 Securityholders of the applicable Election Notice and return thereof to the Trustee by the required Date and time, the continued election by the Transferor to extend the Revolving Period at the Election Date, and the compliance with all of the provisions of this Section 6.17, shall evidence an extension or renewal of the obligations represented by the Series 1998-3 Securities, and not a novation or extinguishment of such obligations or a substitution with respect thereto. To the extent required by applicable laws and regulations, as evidenced by an Opinion of Counsel delivered by the Transferor to the Trustee, the provisions of this Section 6.17 shall or may be modified to comply with all applicable laws and regulations in effect at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market RentExtension.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Federated Department Stores Inc /De/)
Extension. Provided that, at the time Tenant elects to exercise the option herein granted and at the time Paragraph 21 of the commencement Lease is hereby deleted and replaced with the following: During the Term, as the same may be renewed or extended pursuant to the terms of the Extended Term (this Lease, so long as hereinafter defined), (i) this Lease is in full force and effect, effect and Tenant (i) is occupying and doing business from the Premises at the time the election is exercised; and (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord under the Lease either at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise time of the option set forth herein)election or at the effective date thereof beyond any applicable grace period, Tenant shall have the option to extend the Term of renew this Lease for two (2) extended additional terms of five (5) years each (each, an the “Extended First Renewal Term” and the “Second Renewal Term”). The Extended Term shall commence immediately following the end ) at ninety-five percent (95%) of the Original Term or Fair Market Value (as hereinafter defined) of the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation Premises provided that Tenant gives written notice to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Landlord of Tenant’s Construction Allowance or any other contribution by Landlord intention to renew the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than at least twelve (12) months prior to the expiration of the original ten year term of this Lease (the “Original Term”) or the First Renewal Term, as the case may be (the “Renewal Election Date”). If Tenant properly exercises its right to extend the Lease Term for the First Renewal Term, the First Renewal Term shall commence on the day immediately following the expiration date of the then current term, time being of the essence. If Original Term; and if Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant properly exercises its option right to extend the Lease Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Second Renewal Term, Monthly Rent equal to 95 percent the Second Renewal Term shall commence on the day immediately following the expiration date of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of First Renewal Term. Upon the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as each of the commencement of First Renewal Term and the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Second Renewal Term, Landlord and Tenant shall commence negotiations provide a redecoration allowance equal to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate $5.00 per rentable square feet of the Fair Market RentPremises to Tenant. If In the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party event that Tenant shall fail to make such appointment within said second seven (7) day period, then exercise the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the applicable option to select one party’s (i.e.renew as set forth in this provision on or before the Renewal Election Date, Landlord’s or Tenant’s) estimate of Fair Market Rent with respect such applicable option to the Monthly Rent renew, and the other party’s estimate of Fair Market Rent with respect any subsequent option to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, howeverrenew, shall be borne by the party that retained such counselnull and void in its entirety.
Appears in 1 contract
Samples: Lease (Wells Real Estate Fund v L P)
Extension. Provided that, at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall will have the option (the “Extension Option”) to extend the Initial Term for one (1) period of this Lease for two ten (2) extended terms of five (510) years each (eachthe “Extension Period”) upon the same terms, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms covenants and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes as herein contained, except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, Base Rent for any such Extension Period will be increased as provided in Section 3.01; and (ii) Monthly Rent there shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to no further extension options at the cost end of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocablesuch ten-year period. Tenant may exercise its such option to extend for each Extended Term by giving written notice to Landlord a Notice to Extend not later than twelve (12“Exercise Notice”) at least nine (9) months prior before the expiration of the Initial Term. Upon Tenant’s giving such Exercise Notice, the Initial Term of this Lease will be automatically extended for the applicable Extension Period without the execution of an extension or renewal lease.
(a) The Extension Option may be exercised only by written notice delivered by Tenant to Landlord as provided in this Section 2.02(a) and only if, as of the date of delivery of the notice, Tenant is not in Default under this Lease.
(b) The rights contained in this Section 2.02 may be exercised by the originally named Tenant or by any assignee of Tenant’s interest in this Lease if the assignment has been approved or deemed approved by Landlord in accordance with Section 8.01.
(c) If Tenant properly exercises the Extension Option and Tenant is not in Default under this Lease on the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Initial Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee extended for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselExtension Period.
Appears in 1 contract
Extension. Provided that, at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s Upon exercise of the option Renewal Option by Xxxxxx and subject to the conditions set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided abovehereinabove, this Lease shall automatically expire at be extended for the end period of such Renewal Term without the necessity of the then current term, unless sooner terminated as provided hereinexecution of any further instrument or document. If Tenant exercises its option to extend the Term Any termination of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Terminitial Lease Term shall terminate all renewal rights hereunder. The renewal rights of Tenant hereunder shall not be severable from this Lease, Monthly Rent equal nor may such rights be assigned or otherwise conveyed in connection with any permitted assignment of this Lease. Xxxxxxxx’s consent to 95 percent any assignment of this Lease shall not be construed as allowing an assignment of such rights to any assignee. • Once Tenant has received written notice identifying the name and address of any lender (a “Lender”) holding a mortgage or deed of trust (a “Mortgage”) on the property of which these premises form a part (the “Property”), Xxxxxx agrees to notify such Lender by certified mail, return receipt requested, with postage prepaid, of any default on the part of Landlord under this Lease, and Xxxxxx further agrees that, notwithstanding any provisions of this Lease, no cancellation or termination of this Lease and no abatement or reduction of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as payable hereunder shall be effective unless the Lender has received notice of the commencement of the Extended Term, same and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent have failed within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Renttime when it shall have become entitled under the Mortgage to remedy the same, then to commence to cure such default and thereafter diligently prosecute such cure to completion, provided that such period may be extended, if the Fair Market Rent Lender needs to obtain possession of the Property to cure such default, to allow the Lender to obtain possession of the Property provided the Lender commences judicial or non-judicial proceedings to obtain possession within such period and thereafter diligently prosecutes such efforts and cure to completion. It is understood that the Lender shall be determined as provided below. If Landlord and Tenant are unable have the right, but not the obligation, to agree cure any default on the Fair Market Rent within said thirty part of Landlord. Tenant agrees that if a Lender shall succeed to the interest of Landlord under this Lease, neither the Lender nor its successors or assigns shall be: liable for any prior act or omission of Landlord; subject to any claims, offsets, credits or defenses which Tenant might have against any prior landlord (30including Landlord); or bound by any assignment (except as otherwise expressly permitted hereunder), surrender, release, waiver, amendment or modification of the Lease made without such Xxxxxx’s prior written consent; or obligated to make any payment to Tenant or liable for refund of all or any part of any security deposit or other prepaid charge to Tenant held by Landlord for any purpose unless the Lender shall have come into exclusive possession of such deposit or charge. In addition, if a Lender shall succeed to the interest of Landlord under this Lease, the Lender shall have no obligation, nor incur any liability, beyond its then equity interest, if any, in the Property. In the event that a Lender (or any person or entity to whom the Mortgage may subsequently be assigned) day periodnotifies Tenant of a default under the Mortgage and demands that Tenant pay its rent and all other sums due under this Lease to the Lender, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit honor such demand without inquiry and pay its rent and all other sums due under this Lease directly to the other Lender or as otherwise required pursuant to such notice and shall not thereby incur any obligation or liability to Landlord. Xxxxxx agrees and acknowledges that this Lease is subordinate to the lien of any Mortgage, but that, at the Lender’s election, this Lease may be made prior to the lien of any Mortgage, and in the event a sealed envelope its good faith estimate Lender succeeds to the interests of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for aboveLandlord under this Lease, then, at the Lender’s election (A) Tenant shall be bound to the Lender under all of the terms, covenants and conditions of this Lease for the remaining balance of the term hereof, with the same force and effect as soon thereafter if the Lender were the lessor hereunder, and Xxxxxx does hereby agree to attorn to the Lender as practicableits lessor without requiring the execution of any further instruments immediately upon the Lender succeeding to the interests of Landlord under this Lease; provided, but in however, that Xxxxxx agrees to execute and deliver to the Lender any case within fourteen instrument reasonably requested by it to evidence such attornment; and (14B) days after his or her appointmentsubject to the observance and performance by Tenant of all the terms, covenants and conditions of this Lease on the part of Tenant to be observed and performed, the arbitrator Lender shall determine recognize the Fair Market Rent by selecting either leasehold estate of Tenant under all of the Landlord’s estimate terms and conditions of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent this Lease for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be remaining balance of the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent term with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both force and effect as if the Monthly Rent Lender were the lessor under the Lease. Tenant agrees, at any time and the Parking Feefrom time to time, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged as requested by Landlord or any Lender, upon not less than ten (10) business days’ prior notice, to execute and deliver without cost or expense to the Landlord or such Lender an estoppel certificate certifying that this Lease is unmodified and in full force and effect (or if there have been modifications, that the same is in full force and effect as modified and stating the modifications), certifying the dates to which all fixed or base rent and any additional rent have been paid, and stating whether or not, to the actual knowledge of Tenant, howeverLandlord is in default in the performance of any of its obligations under this Lease, shall and, if so, specifying each such default of which Tenant may have knowledge, it being intended that any such statement delivered pursuant thereto may be borne relied upon by the party that retained any other person with whom Landlord or such counselLender may be dealing.
Appears in 1 contract
Samples: Shopping Center Retail Lease
Extension. Provided that(a) The Borrower may on one or more occasions after the Closing Date, at by written notice to the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined)Administrative Agent, (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each make one or more offers (each, an “Extended TermExtension Offer”)) to all the Lenders of one or more Class of Loans (each class subject to such an Extension Offer, an “Extension Request Class”) to enter into one or more Extension Permitted Amendments pursuant to procedures reasonably specified by the Administrative Agent and reasonably acceptable to the Borrower. The Extended Term Such notice shall commence immediately following set forth (i) the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions of the requested Extension Permitted Amendment(s) and (ii) the date on which such Extension Permitted Amendment(s) are requested to become effective (which shall not be less than five (5) Business Days nor more than thirty (30) Business Days after the date of such notice, unless otherwise agreed to by the Administrative Agent). Extension Permitted Amendments shall become effective only with respect to the Loans and Commitments of the Lenders of the Extension Request Class that accept the applicable during Extension Offer (such Lenders, the Original Term “Extending Lenders”) and, in the case of any Extending Lender, only with respect to such Xxxxxx’s Loans and Commitments of such Extension Request Class as to which such Lender’s acceptance has been made. The Borrower shall apply during have the right to withdraw any Extension Offer upon written notice to the Administrative Agent in the event that the aggregate amount of Loans and Commitments of the Extending Lenders is less than the aggregate amount specified by the Borrower in the Extension Offer to be extended.
(b) An Extension Permitted Amendment shall be effected pursuant to an Extension Agreement executed and delivered by the Borrower, each Extended Term including without limitation applicable Extending Lender and the obligation to pay Operating Expenses and Taxes except Administrative Agent; provided that no Extension Permitted Amendment shall become effective unless (i) Tenant no Default or Event of Default shall have no further right to extend occurred and be continuing on the Term beyond the second Extended Term hereinabove provideddate of effectiveness thereof, (ii) Monthly Rent on the date of effectiveness thereof, the representations and warranties of each Loan Party set forth in the Loan Documents shall be true and correct (A) in the case of the representations and warranties qualified as provided hereinto materiality, in all respects, and (inB) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”)otherwise, which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Termall material respects, in each case also referred on and as of such date, except in the case of any such representation and warranty that specifically relates to below collectively an earlier date, in which case such representation and warranty shall be so true and correct on and as “Fair Market Rent.” of such earlier date, and (iii) the Borrower shall have delivered to the Administrative Agent such customary legal opinions, board resolutions, secretary’s certificates, officer’s certificates and other customary documents as shall reasonably be requested by the Administrative Agent in connection therewith. The computation can include appropriate annual increases during Administrative Agent shall promptly notify each year Lender as to the effectiveness of each Extension Agreement. Each Extension Agreement may, without the consent of any Lender other than the applicable Extending Lenders, effect such amendments to this Agreement and the other Loan Documents as may be necessary or appropriate, in the opinion of the Extended TermAdministrative Agent, if that is required to arrive at fair market rent. Landlord shall notify Tenant give effect to the provisions of Landlord’s proposed Monthly Rent this Section 2.27, including any amendments necessary to treat the applicable Loans and/or Commitments of the accepting Lenders as a new “Class” of loans and/or commitments hereunder; provided that, except as otherwise agreed to by the Issuing Bank and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to ExtendSwingline Lender, (but in no event prior to i) the last date for Tenant to give allocation of the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent participation exposure with respect to any then-existing or subsequently issued or made Letter of Credit or Swingline Loan as between the Extended Term, Landlord commitments of such new “Class” and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent remaining Commitments shall be determined made on a ratable basis as provided below. If Landlord between the commitments of such new “Class” and Tenant are unable the remaining Commitments and (ii) the Revolving Commitment Termination Date, as such term is used in reference to agree on Letters of Credit or Swingline Loans, may not be extended without the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate prior written consent of the Fair Market Rent. If Issuing Bank and the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall selectSwingline Lender, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselapplicable.
Appears in 1 contract
Extension. Provided that(a) If a Pay Out Event has not occurred or has occurred but has been remedied on or before the 30th Business Day preceding the Extension Date, the Transferor, in its sole discretion, may deliver to the Trustee on or before such date a notice substantially in the form of Exhibit E (the "EXTENSION NOTICE") to this Series Supplement. The Trustee shall deliver a copy of the Extension Notice and all documents annexed thereto to the Investor Securityholders of record on the date of receipt thereof. The Transferor shall state in the Extension Notice that it intends to extend the Revolving Period until the later Amortization Period Commencement Date set forth in the Extension Notice. The Extension Notice shall also set forth the next Extension Date. The following documents shall be annexed to the Extension Notice: (i) a form of the Opinion of Counsel addressed to the Transferor and the Trustee to the effect that despite the extension the Trust will not be treated as an association taxable as a corporation (the "EXTENSION TAX OPINION"); (ii) a form of the Opinion of Counsel addressed to the Transferor and the Trustee (the "EXTENSION OPINION") to the effect that (A) the Transferor has the corporate power and authority to effect the Extension, (B) the extension has been duly authorized by the Transferor, and (C) all conditions precedent to the Extension required by this Section 6.17 have been fulfilled; (iii) a form of Investor Securityholder Election Notice substantially in the form of Exhibit F (the "ELECTION NOTICE") to this Series Supplement; and (iv) a schedule setting forth the Aggregate Interest Rate Caps Notional Amount for the period or periods as indicated from the Extension Date through the new Scheduled Series 1998-1 Termination Date, each as specified in the related Extension Notice. In addition, the Extension Notice shall state that any Investor Securityholder electing to approve the Extension must do so on or before the Election Date (as defined below) by returning the annexed Election Notice properly executed to the Trustee in the manner described below. The Extension Notice shall also state that an Investor Securityholder may withdraw any such election in whole or in part on or before the Election Date, and the Transferor, in its sole discretion, may, prior to the Election Date, withdraw its election to extend the Revolving Period. Any Holder that elects to approve an Extension hereunder shall deliver a duly executed Election Notice to the Trustee at the time Tenant elects address designated in the Extension Notice on or before 3:00 p.m., New York City time, on or before the fifth Business Day preceding the Extension Date (such Business Day constituting the "Election Date").
(b) No extension shall occur unless each of the following conditions have been satisfied prior to exercise the option herein granted close of business on the Election Date: (i) no Pay Out Event shall have occurred and be continuing, (ii) there shall have been delivered to the Trustee (A) the Extension Tax Opinion and the Extension Opinion, each addressed to the Trustee and (B)(1) written confirmation from each Rating Agency rating the Class A Security that the Extension will not cause such Rating Agency to lower or withdraw its then current rating of such Investor Securities, (2) written confirmation from each Rating Agency rating the Class B Securities that the Extension will not cause such Rating Agency to lower or withdraw its then current rating of such Investor Securities, and (3) written confirmation from each Rating Agency rating its Collateralized Trust Obligations that the extension will not cause such Rating Agency to lower or withdraw its then current rating of such Investor Securities, (iii) each of the holders of the Class A Security, the Class B Securities, and the Collateralized Trust Obligations shall have elected to approve the Extension by returning to the Trustee on or before the Election Date the executed Election Notice annexed to the Extension Notice delivered to the Securityholders pursuant to subsection 6.17(a) of the Agreement. If, by the close of business on the Election Date, all of the conditions stated in this subsection 6.17(b) of the Agreement have not been satisfied and all such documents delivered to the Trustee pursuant to this subsection 6.17(b) of the Agreement are not in form satisfactory to it, or if the Transferor has notified the Trustee, prior to the Election Date, that the Transferor has exercised its right to withdraw its election of an Extension, no Extension shall occur.
(c) The execution by the required number of Investor Securityholders of the applicable Election Notice and return thereof to the Trustee by the required Date and time, the continued election by the Transferor to extend the Revolving Period at the Election Date, and the compliance with all of the provisions of this Sec- tion 6.17, shall evidence an extension or renewal of the obligations represented by the Investor Securities, and not a novation or extinguishment of such obligations or a substitution with respect thereto.
(d) To the extent required by applicable laws and regulations, as evidenced by an Opinion of Counsel delivered by the Transferor to the Trustee, the provisions of this Section 6.17 shall or may be modified to comply with all applicable laws and regulations in effect at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market RentExtension.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.
Appears in 1 contract
Samples: Pooling and Servicing Agreement (Metris Companies Inc)
Extension. Provided that(i) Notwithstanding anything to the contrary in this Agreement, pursuant to one or more offers (each, an “Extension Offer”) made from time to time by the Borrower to all Lenders holding Term Loans (other than Term C Loans) with a like maturity date, in each case on a pro rata basis (based on the aggregate outstanding principal amount of such respective Term Loans) and on the same terms to each such Lender, the Borrower is hereby permitted to consummate from time to time transactions with individual Lenders that accept the terms contained in such Extension Offers to extend the maturity date and/or commitment termination of each such Lender’s Term Loans of such class, and, subject to the terms hereof, otherwise modify the terms of such Term Loans pursuant to the terms of the relevant Extension Offer (including by increasing the interest rate and/or fees payable in respect of such Term Loans (and related outstandings) and/or modifying the amortization schedule in respect of such Xxxxxx’s Term Loans) (each, an “Extension” and each group of Term Loans, in each case as so extended, as well as the original Term Loans, being a separate “tranche”), so long as the following terms are satisfied:
(1) no Default or Event of Default will have occurred and be continuing at the time Tenant elects the Extension Offer is delivered to exercise the option herein granted and Lenders or at the time of such Extension;
(2) except as to interest rates, rate floors, fees, amortization, final maturity date, Weighted Average Life to Maturity, premium, required prepayment dates and participation in prepayments (which will, subject to the commencement of immediately succeeding clauses (3), (4), and (5), be determined by the Borrower and set forth in the relevant Extension Offer, subject to acceptance by the Extended Term Lenders), the Term Loans of any Lender that agrees to an Extension with respect to such Term Loans owed to it (an “Extended Term Lender”) extended pursuant to any Extension (“Extended Term Loans”) will have the same terms as hereinafter definedthe tranche of Term Loans subject to such Extension Offer (except for covenants or other provisions contained therein or other provisions contained therein applicable only to periods after the then Latest Term Loan Maturity Date);
(3) the final maturity date of any Extended Term Loans will be no earlier than the Latest Term Loan Maturity Date of the Term Loans extended thereby;
(4) the Weighted Average Life to Maturity of any Extended Term Loans will be no shorter than the remaining Weighted Average Life to Maturity of the Term Loans extended thereby;
(5) any Extended Term Loans may participate on a pro rata basis, a less than pro rata basis or a greater than pro rata basis (except that such Extended Term Loans may not participate on a greater than pro rata basis as compared to any earlier or equivalent maturing Class of Term Loans (other than pursuant to a refinancing)) with non-extending tranches of Term Loans in any mandatory prepayments hereunder, in each case as specified in the respective Extension Offer;
(6) there will be no more than three (3) Extended Term Loan tranches at any time during the term of this Agreement; and
(ii) if the aggregate principal amount of Term Loans (calculated on the outstanding principal amount thereof) in respect of which a Lender will have accepted the relevant Extension Offer will exceed the maximum aggregate principal amount of Term Loans offered to be extended by the Borrower pursuant to such Extension Offer, then the Term Loans of such Lender will be extended ratably up to such maximum amount based on the respective principal or commitment amounts with respect to which such Lender have accepted such Extension Offer. With respect to all Extensions consummated by the Borrower pursuant to this Section 10.5(g), (i) this Lease is in full force such Extensions will not constitute voluntary or mandatory payments or prepayments for purposes of Sections 2.13 or 2.14 and effect, (ii) Tenant no Extension Offer is not required to be in default hereunder beyond applicable notice any minimum amount or any minimum increment; provided that the Borrower may at its election specify as a condition to consummating any such Extension that a minimum amount (to be determined and cure period(s) (which default specified in the relevant Extension Offer in the Borrower’s sole discretion and may be waived by Landlord the Borrower) of Term Loans of any or all applicable tranches be tendered. The Administrative Agent, the Collateral Agent and the Lenders hereby consent to the transactions contemplated by this Section (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Term Loans on such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement or any other Credit Document that may otherwise prohibit or conflict with any such Extension or any other transaction contemplated by this Section.
(iii) No consent of any Lender, the Collateral Agent or the Administrative Agent will be required to effectuate any Extension, other than the consent of each Lender agreeing to such Extension with respect to one or more of its Term Loans (or a portion thereof). All Extended Term Loans and all obligations in respect thereof will be Obligations under this Agreement and the other Credit Documents and secured by the same Liens on the Collateral that secure all other applicable Obligations. The Lenders hereby irrevocably authorize the Administrative Agent and the Collateral Agent to enter into amendments to this Agreement and the other Credit Documents with the Borrower (on behalf of all Credit Parties) as may be necessary in order to establish new tranches or sub-tranches in respect of Term Loans so extended and such technical amendments as may be necessary in the reasonable opinion of the Administrative Agent and the Borrower in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section (any such amendment, an “Extension Amendment”). Without limiting the foregoing, in connection with any Extensions the applicable Credit Parties will (at its sole discretion their expense) amend (and the Collateral Agent is hereby directed by the Lenders to amend) any Mortgage that has a maturity date prior to the then latest maturity date so that such maturity date referenced therein is extended to the then latest maturity date (or such later date as may not be used advised by Tenant as a means local counsel to negate the Collateral Agent). The Administrative Agent will promptly notify each Lender of the effectiveness of Tenant’s exercise of each such Extension Amendment.
(iv) In connection with any Extension, the option set forth herein), Tenant shall have Borrower will provide the option to extend the Term of this Lease for two (2) extended terms of Administrative Agent at least five (5) years each Business Days (eachor such shorter period as may be agreed by the Administrative Agent) prior written notice thereof, an “Extended Term”). The Extended Term shall commence immediately following the end and will agree to such procedures (including regarding timing, rounding and other adjustments and to ensure reasonable administrative management of the Original Term or the first Extended Terracredit facilities hereunder after such Extension), if any, as may be established by, or acceptable to, the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended TermAdministrative Agent, in each case also referred acting reasonably to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year accomplish the purposes of the Extended Term, if that is required to arrive at fair market rentthis Section 10.5(g). Landlord shall notify Tenant This Section 10.5(g) will supersede any provisions of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior this Section 10.5 or Section 2.17 or 10.4 to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.contrary
Appears in 1 contract
Extension. Provided that(a) If a Series 1997-1 Pay Out Event has not occurred or has occurred but has been waived or remedied on or before the 30th Business Day preceding the Extension Date, at the time Tenant elects Transferor, in its sole discretion, may deliver to exercise the option herein granted and at Trustee on or before such date a notice substantially in the time form of Exhibit C (the "EXTENSION NOTICE") to this Supplement. The Trustee shall deliver a copy of the commencement Extension Notice and all documents annexed thereto to the Investor Certificateholders of record on the Extended Term (as hereinafter defined), date of receipt thereof. The Transferor shall state in the Extension Notice that it intends to extend the Revolving Period until the later Amortization Period Commencement Date set forth in the Extension Notice. The Extension Notice shall also set forth the next Extension Date. The following documents shall be annexed to the Extension Notice: (i) a form of the Opinion of Counsel addressed to the Transferor and the Trustee to the effect that despite the Extension the Trust will not be treated as an association taxable as a corporation (the "EXTENSION TAX OPINION"); (ii) a form of the Opinion of Counsel addressed to the Transferor and the Trustee (the "EXTENSION OPINION") to the effect that (A) the Transferor has the corporate power and authority to effect the Extension, and (B) the Extension has been duly authorized by the Transferor; and (iii) a form of Investor Certificateholder Election Notice substantially in the form of Exhibit D (the "ELECTION NOTICE") to this Lease is Supplement. In addition, the Extension Notice shall state that any Investor Certificateholder electing to approve the Extension must do so on or before the Election Date (as defined below) by returning the annexed Election Notice properly executed to the Trustee in full force the manner described below. The Extension Notice shall also state that an Investor Certificateholder may withdraw any such election in whole or in part on or before the Election Date, and effectthe Transferor, in its sole discretion, may, prior to the Election Date, withdraw its election to extend the Revolving Period. Any Holder that elects to approve an Extension hereunder shall deliver a duly executed Election Notice to the Trustee at the address designated in the Extension Notice on or before 3:00 p.m., New York City time, on or before the fifth Business Day preceding the Extension Date (such Business Day constituting the "ELECTION DATE").
(b) No Extension shall occur until prior satisfaction of the following conditions at the close of business on the Election Date: (i) no Pay Out Event shall have occurred and be continuing, (ii) Tenant is there shall have been delivered to the Trustee (A) the Extension Tax Opinion and the Extension Opinion, each addressed to the Trustee and (B) written confirmation from any Rating Agency rating that the Extension will not in default hereunder beyond applicable notice cause such Rating Agency to lower or withdraw its ratings of either class of Senior Certificates, (iii) at least one Holder of the Senior Certificates shall have elected to approve the Extension by returning to the Trustee on or before the Election Date the executed Election Notice annexed to the Extension Notice delivered to such Holder of the Senior Certificates pursuant to subsection 6.16(a) of the Agreement, (iv) all of the Holders of the Class C Certificates shall have elected to approve of the Extension by returning to the Trustee on or before the Election Date the executed form of Election Notice annexed to the Extension Notice delivered to such Class C Certificateholders pursuant to subsection 6.16(a) and cure period(s(v) (which default may be waived by Landlord at its sole discretion 1) the sum of Class B Invested Amount and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise Class C Invested Amount will equal or exceed 25% of the option set forth herein)Invested Amount on the Election Date and (2) the Class C Invested Amount on the Election Date will equal or exceed 17.5% of the Invested Amount. If not all of the Holders of the Senior Certificates give written notice of such agreement, Tenant then the Transferor shall re-notify the Holders of the Senior Certificates willing to so extend in writing that one or more Senior Certificateholders have declined to so extend and such remaining Holders of the Senior Certificates willing to extend have the option of extending only for such Holders of the Senior Certificates so consenting to such extension and the outstanding Invested Amount of such non-extending Holders of the Senior Certificates shall not be extended. If, by the close of business on the Election Date, all of the conditions stated in this subsection 6.16(b) have not been satisfied and all such documents delivered to the Trustee pursuant to this subsection 6.16(b) are not in form satisfactory to it, or if the Transferor has notified the Trustee, prior to the Election Date, that the Transferor has exercised its right to withdraw its election of an Extension, no Extension shall occur.
(c) The execution by the Holders of the Senior Certificates of the applicable Election Notice and return thereof to the Trustee by the required date and time, the continued election by the Transferor to extend the Term Revolving Period at the Election Date, and the compliance with all of the provisions of this Lease for two (2) extended terms of five (5) years each (eachSection 6.16, shall evidence an “Extended Term”). The Extended Term shall commence immediately following the end extension or renewal of the Original Term or obligations represented by the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided hereinInvestor Certificates delivered in exchange therefor, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance a novation or any other contribution by Landlord to the cost extinguishment of improvements such obligations or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent substitution with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselthereto.
Appears in 1 contract
Extension. Provided that, at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant A. Lessee shall have the option options to extend the Term of renew this Lease for two three (23) extended successive additional terms of five (5) years each (each, each an “Extended "Additional Term”). The Extended Term shall commence immediately following ") on the end of the Original Term or the first Extended Terra, as the case may be. All same terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes as are provided herein except that (ia) Tenant Rent for each Additional Term shall be determined in accordance with the provisions of Section 30.C and (b) there shall be no additional option to renew or extend this Lease.
B. Each such option shall be exercised by Lessee by written notice (the "Extension Notice") to Lessor at least six (6) months before the expiration of the original or prior Additional Term. Any termination of this Lease by Lessor in accordance with the terms hereof shall automatically terminate such options without further act by Lessor. It shall be a condition to the exercise of such second and third options that the prior option shall have no further right to extend the been validly exercised.
C. The Rent for each Additional Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and an amount (inthe "FMV Rent") Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord equal to the cost then fair market value of improvements or alterations to comparable space in the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend Kent Valley, Washington area (the “Notice to Extend”)including Kent and Auburn, which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend Washington) for each Extended such Additional Term by giving Landlord a Notice to Extend not later as determined below, but in no event less than twelve (12) months prior to the expiration date of Rent then payable for the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rentLease. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within Within thirty (30) days after Landlord’s of its receipt of Tenant’s the Extension Notice for an Additional Term, Lessor shall deliver to Extend, Lessee notice (but in no event prior to "Lessor's Rental Notice") of Lessor's estimate of the last date FMV Rent for Tenant to give the Premises for the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Additional Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord Lessor and Tenant are unable to reach agreement Lessee cannot agree on the Fair Market FMV Rent within fourteen (14) days of Lessee's receipt of Lessor's Rental Notice (the "Rental Notice Date"), the parties shall, within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rental Notice Date, select a single appraiser who will determine the FMV Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such persona single appraiser, then each party will select an appraiser within said thirty (30) days, and such two (2) appraisers will select a second period of third appraiser within seven (7) daysdays of the date of the selection of such two (2) appraisers. The appraisers so selected shall all be members of the American Institute of Real Estate Appraisers, each shall select a member and in the case of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person appraiser chosen by the other party two (2) appraisers, shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but not have acted in any case capacity for either Lessor or Lessee within fourteen five (145) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate years of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedingssuch appraiser's selection. The arbitrator’s three (3) appraisers shall render their decision as to which estimate of Fair Market Rent shall be the Fair Market FMV Rent for the Extended Term Premises for the applicable Additional Term, and a decision by a majority of the appraisers shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them Lessor and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking FeeLessee. The costs of the arbitrator foregoing appraisers will be borne equally divided between Landlord by Lessor and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselLessee.
Appears in 1 contract
Extension. Provided thatit is mutually agreed and understood that if the Tenant duly and regularly pays the Base Rental and Additional Rent and performs all of the provisos and agreements contained herein on the part of the Tenant to be performed, at and provided further that the time Tenant elects to exercise is not and has not been in material default under the option herein granted terms of this Lease and is not in default at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have then the option to extend Landlord shall, at the expiration of the Term hereof, upon written request of the Tenant, grant to the Tenant an extension of this Lease for two (2) extended terms a further period of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following upon the end of the Original Term or the first Extended Terra, as the case may be. All same terms and conditions applicable during as contained herein, save as to the Original Term shall apply during each Extended Term including without limitation Base Rental rate, Landlord's Work, leasehold improvement allowance, and save as to any further right of extension. Provided always that the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord given to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend not less than nine (the “Notice to Extend”), which notice shall apply to the entire Premises 9) months and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later more than twelve (12) months prior to notice in writing before the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease its desire to have such extension. The Base Rental rate for the Extended Term by delivering extension term shall be at the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the then fair market rent rate for renewing or extending tenants, all economic inducement factors considered for comparable laboratory space premises in Cambridge, Massachusetts, projected comparable buildings in a comparable area and as of mutually agreed between the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market RentTenant. If In the event that the Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on upon the Fair Market Rent within said thirty (30) day period, then within five (5) Base Rental rate for the extension term by 120 days thereafter, Landlord and Tenant shall each simultaneously submit prior to the other in a sealed envelope its good faith estimate of maturity date, the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent matter shall be submitted to arbitration by notice given by either party to the average of other. Upon such notice being given, the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent dispute shall be determined by arbitration as hereinafter provided. Within seven (7) the award of 3 arbitrators, or by a majority of them, one to be named by the Landlord and one by the Tenant within 30 days of the giving of such notice, and the 3rd to be selected by these 2 arbitrators within 7 days after both have been nominated. If either the exchange of estimatesLandlord or the Tenant shall neglect or refuse to name its arbitrator in the time specified or to proceed with the arbitration, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen arbitrator named by the other party shall be proceed with the sole arbitrator. Once arbitration, and the award of such arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them the Landlord and the Tenant. The Arbitrators shall have all the power given by the Arbitration Act of Ontario and may at any time proceed in such manner as they see fit on such notice as they deem reasonable in the absence of either party, if such party fails to attend. Each party shall pay its own costs and shall share equally the costs of arbitration. The award and determination of the arbitrators shall be final and binding upon both parties hereto and each party agrees not to appeal any such award or determination. If the award of the arbitrators is not given before the commencement date of the extension term, then the Tenant shall commence paying rent at the market rate as determined by the Landlord together with Additional Rent, which shall be adjusted forthwith after the award of the arbitrators has become final and binding, to be calculated from the commencement date of the extension term. Interest at the rate set out herein shall be calculated monthly on the difference between the Base Rental paid by the Tenant and the actual amount awarded by the arbitrators and shall be paid forthwith upon demand when the Monthly Rent arbitrators' decision has been made. The extension of lease form shall be prepared by the Landlord at the Tenant's cost and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect Tenant covenants and agrees to pay to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The Landlord said costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselforthwith upon demand.
Appears in 1 contract
Samples: Lease Agreement (Changepoint Corp)
Extension. Provided If the Seller shall be unable to give title to the Leased Property on the Closing Date, subject only to the Permitted Exceptions, or if all of the Closing Conditions precedent to the Buyer's obligation to consummate the acquisition shall not have been satisfied on or before the Closing Date, the Buyer shall so notify the Seller on or prior to the Closing Date; whereupon, in order to allow the Seller to so perform or for such Closing Conditions to be satisfied, the Closing Date shall be extended for a period not to exceed sixty (60) days. During such extended period of time, the Seller shall use diligent efforts to remove any Seller Encumbrances and the parties hereto shall use diligent efforts to cause such Closing Conditions to be satisfied. At either the original or extended time for performance, the Buyer shall have the election to accept such title to the Leased Property as the Seller can deliver (in its then condition) and/or to waive any unsatisfied Closing Conditions and to pay the Purchase Price without deduction; in which case, subject to the provisions of Section 10 hereof, the Seller shall convey such title to the Leased Property as it can deliver and the Closing shall be consummated in accordance with the terms hereof. In the event that, at the extended time Tenant elects for performance, (a) the Seller shall be unable to exercise give title to the option herein granted Leased Property subject only to the Permitted Exceptions (after using diligent efforts to satisfy or remove any Seller Encumbrances) and at the time Buyer does not elect to accept such title to the Leased Property as the Seller can deliver and/or (b) the Closing Conditions precedent to the Buyer's obligation to consummate the acquisition of the commencement of the Extended Term (as hereinafter defined)Leased Property have not been satisfied or waived, then, (i) this Lease is in full force the Buyer's option to acquire the Leased Property shall terminate as of the Closing Date, as so extended, without recourse to the parties, except as otherwise provided herein to survive such termination and effect, (ii) Tenant is if the Buyer does not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means elect to negate accept such title to the effectiveness of Tenant’s exercise of Leased Property because the option set forth herein)Seller was unable to satisfy or remove any Seller Encumbrance, Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent Option Payment shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord refunded to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved Buyer by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselSeller.
Appears in 1 contract
Samples: Option, Settlement and Release Agreement (Balanced Care Corp)
Extension. Provided thatAt least 30 days but not more than 120 days prior to the Initial RC Maturity Date and the Initial TL Maturity Date, at the time Tenant elects Borrower, by written notice to exercise the option herein granted and at the time Administrative Agent, may request a twelve-month extension of either or both of the commencement of Initial RC Maturity Date and the Extended Term Initial TL Maturity Date (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended TermExtension Request”). The Extended Term Administrative Agent shall commence immediately following promptly deliver a copy of such Extension Request to each Lender and each Lender, acting in its sole discretion, shall, by written notice to the end of Administrative Agent given no later than the Original Term or 10th Business Day after the first Extended TerraAdministrative Agent received the Extension Request from the Borrower (the “Consent Date”), advise the Administrative Agent as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that to:
(i) Tenant whether or not such Lender agrees to such extension of its then current Maturity Date with respect to any Facility that is the subject of such Extension Request (each Lender so agreeing to an extension an “Extending Lender”); and
(ii) only if such Lender is an Extending Lender, whether or not such Lender also irrevocably offers to increase the amount of its Commitment to the Facility for which such Lender is an Extending Lender (each such Lender so offering to increase its Commitment being an “Increasing Lender” as well as an Extending Lender) and, if so, the amount of the additional Commitment such Lender so irrevocably offers to assume hereunder with respect to such Facility (such Lender’s “Proposed Additional Commitment”). Each Lender that determines not to extend its Maturity Date with respect to any Facility that is the subject of such Extension Request (each lender so not agreeing to an Extension a “Non-Extending Lender”) shall notify the Administrative Agent (which shall notify the Lenders) of such fact promptly after such determination but in any event no later than the Consent Date, and any Lender that does not advise the Administrative Agent in writing on or before the Consent Date shall be deemed to be a Non-Extending Lender and (without limiting the Borrower’s rights under this Section 2.16 to replace a Non-Extending Lender) shall have no further right liability to extend the Borrower in connection therewith. The election of any Lender to agree to such Extension shall not obligate any other Lender to so agree. The AMERICAS/2023134647.11 60 Administrative Agent shall notify the Borrower of each Lender’s determinations under this Section 2.16(a) promptly after the Consent Date.
(i) If all of the Lenders to a Facility are Extending Lenders as to such Facility, then, effective as of the Facility Extension Date (as defined below), the Maturity Date for such Facility shall be extended for an additional twelve-month period (the last day of such period being, in respect of the Revolving Credit Facility, the “Extended RC Maturity Date” and in respect of the Term beyond the second Extended Term hereinabove providedLoan, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to ExtendExtended TL Maturity Date”), which notice and the respective Commitments of the Lenders to such Facility will not be subject to change at such Facility Extension Date pursuant to this Section 2.16; provided that, (A) the Administrative Agent shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve have received at least ten (1210) months days prior to the expiration date applicable Facility Extension Date a recent Appraisal of each Borrowing Base Asset, (B) the Administrative Agent shall have received payment in full of the then current term, time being Extension Fee set forth in Section 2.08(d) and (C) the following statements shall be true and the Administrative Agent shall have received for the account of each Lender Party a certificate signed by a Responsible Officer of the essence. If Tenant fails to give a timely Notice to Extend within Borrower, dated the time provided aboveFacility Extension Date, this Lease shall automatically expire at stating that: (1) the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space representations and warranties contained in Cambridge, Massachusetts, projected Section 4.01 are true and correct in all material respects on and as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal Facility Extension Date (unless qualified as to the fair market parking fees, projected as of the commencement of the Extended Termmateriality or Material Adverse Effect, in each which case also referred to below collectively as such representations and warranties shall be true and correct in all respects) and (2) no Default or Event of Default has occurred and is continuing or would result from such Extension. “Fair Market Rent.Facility Extension Date” The computation can include appropriate annual increases during each year of the Extended Termmeans, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to any Facility that is the Extended Termsubject of an Extension Request, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days first date after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher delivery of such estimates is not more than one hundred five percent Extension Request that the conditions set forth in clauses (105%A) through (C) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselproviso above are satisfied.
Appears in 1 contract
Extension. Provided that, at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant Subtenant shall have the option to extend (the “Option”) the Term for an additional period of this Lease for two one (21) extended terms of five year (5the “Extension Period”) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All upon all terms and conditions applicable during of the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes Sublease, except that (i) Tenant Subtenant shall have no further right to extend the Term beyond Term, and the second Extended Term hereinabove provided, (ii) Monthly Base Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord increased to the cost of improvements or alterations to the Premisesamounts provided for herein. Tenant shall exercise its option to extend this Lease for the Extended Term The Option may be exercised only by Subtenant giving Landlord Sublandlord irrevocable and unconditional written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not thereof no later than twelve nine (129) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of before the commencement of the Extended TermExtension Period; provided, and a Parking Fee for however, only if Sublandlord intends to occupy the Parking Spaces equal to the fair market parking fees, projected as Sublet Portion upon expiration of the commencement initial Term of this Sublease, then Sublandlord may nullify Subtenant’s exercise of the Extended Term, in each case also referred Option by written notice given to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term Subtenant within thirty (30) days after Landlordof Subtenant’s receipt exercise of Tenantthe Option. Said exercise shall, at Sublandlord’s Notice election, be null and void if Subtenant is in default under the Sublease at the date of said notice or at any time thereafter and prior to Extendcommencement of the Extension Period. If Subtenant shall fail to exercise the Option in accordance with the terms hereof, (but said Option shall terminate and be null and void. If Sublandlord shall fail to nullify said exercise within the period set forth above, Sublandlord’s nullification right shall terminate and be null and void. Subtenant’s exercise of the Option shall not operate to cure any default by Subtenant of any of the terms or provisions in no event this Sublease, nor to extinguish or impair any rights or remedies of Sublandlord arising by virtue of such default. If the Sublease or Subtenant’s right to possession of the Sublet Portion shall terminate in any manner whatsoever before Subtenant shall exercise the Option, or before the commencement of the Extension Period, or if Subtenant shall have assigned the Sublease or subleased all or any portion of the Sublet Portion before Subtenant shall have exercised the Option, then immediately upon such termination, sublease or assignment, the Option shall simultaneously terminate and become null and void. If the Term of the Sublease shall terminate for any reason prior to the last date for Tenant to give expiration of the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended initial Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent Option shall become null and void, whether or not it has been previously exercised. Time is of the essence of this provision. The Extension Period shall be determined as provided below. If Landlord upon all the same terms and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate conditions of the Fair Market Rent. If Sublease except the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Base Rent for the Extended Term Extension Period shall be rendered increase by two and fifty hundredths percent (2.50%) over Base Rent payable in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs last month of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselinitial Term.
Appears in 1 contract
Samples: Sublease (Zuora Inc)
Extension. Provided thatSubject to Sections 31B and 31C below, at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease may be extended, at the option of Tenant, for two (2) extended terms one additional period of five (5) years each (each, an “Extended the "Renewal Term”"). The Extended Renewal Term shall commence immediately following be upon the end same terms, covenants and conditions contained in this Lease, except for the amount of Base Rent payable during the Renewal Term, and any reference in the Lease to the "Term" of the Original Lease shall be deemed to include the Renewal Term or and apply thereto, unless it is expressly provided otherwise. Tenant shall have no extension option beyond the first Extended Terra, as the case may beaforesaid five-year extension option. All terms and conditions applicable Any termination of this Lease during the Original initial Term of this Lease shall apply terminate all rights under this Section 31.
A. The initial Base Rent during each Extended the Renewal Term including without limitation for any space then constituting a portion of the Premises shall be at a rate equal to the greater of (i) the Base Rent (as escalated pursuant to Section 2A above) applicable to the tenth Lease Year, and (ii) the then prevailing market rate for fully creditworthy tenants for comparable space in the Building and other comparable office building in the vicinity of the Building as reasonably determined by Landlord. Tenant's obligation to pay Operating Expenses Cost Share Rent and Taxes except that (i) Tenant Tax Share Rent pursuant to Section 2A of the Lease shall have no further right continue during the Renewal Term.
B. Such option to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as exercised by Tenant delivering an initial non-binding written notice to Landlord not less than nine (9) full calendar months prior to the expiration of the initial Term of this Lease. Thereafter, Landlord shall calculate the prevailing market rate for the Premises, which calculation shall reflect the market rate that would be payable per annum for a term commencing on the first day of the Renewal Term, provided herein, that such calculation shall be final and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to recalculated at the cost actual commencement of improvements or alterations to the PremisesRenewal Term (if any). Tenant shall give Landlord final binding written notice of intent to exercise its option to extend, if at all, no later than six (6) months prior to the expiration of the initial Term.
C. Tenant's right to exercise its option to extend this Lease for pursuant to this Section 31, is subject to the Extended Term by giving Landlord following conditions: (i) that on the date that Tenant delivers its final binding written notice of its election to exercise its option to extend, Tenant is not in default under any of the terms, convenants or conditions of the Lease, after the expiration of any applicable notice and cure periods, (ii) that Tenant shall not have assigned the Lease or sublet the Premises at any time during the period commencing with the date that Tenant delivers its final binding written notice to Landlord of its exercise of such option to extend and ending on the commencement date of the Renewal Term, or at any time prior to such period, if such assignment or sublease extends into such period, and (the “Notice iii) that Tenant also exercises its option to Extend”)extend contained in Section 30 of that certain Lease between Landlord and Tenant dated as of ___________, which 1998.
D. If Tenant fails to give its initial non-binding written notice shall apply of intent or its final binding written notice of intent to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated when due as provided herein. If in this Section 31, Tenant exercises its will be deemed to have waived such option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rentextend.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.
Appears in 1 contract
Samples: Lease (Success Bancshares Inc)
Extension. Provided that(a) If a Pay Out Event has not occurred or has occurred but has been remedied on or before the 30th Business Day preceding the Extension Date, the Transferor, in its sole discre- tion, may deliver to the Trustee on or before such date a notice substantially in the form of Exhibit E (the "Extension Notice") to this Series Supplement. The Trustee shall deliver a copy of the Extension Notice and all documents annexed thereto to the Investor Certifi- cateholders of record on the date of receipt thereof. The Transferor shall state in the Extension Notice that it intends to extend the Revolving Period until the later Amortization Period Commencement Date set forth in the Extension Notice. The Extension Notice shall also set forth the next Extension Date. The following docu- ments shall be annexed to the Extension Notice: (i) a form of the Opinion of Counsel addressed to the Trans- feror and the Trustee to the effect that despite the extension the Trust will not be treated as an associa- tion taxable as a corporation (the "Extension Tax Opin- ion"); (ii) a form of the Opinion of Counsel addressed to the Transferor and the Trustee (the "Extension Opin- ion") to the effect that (A) the Transferor has the corporate power and authority to effect the Extension, (B) the extension has been duly authorized by the Trans- feror, and (C) all conditions precedent to the Extension required by this Section 6.17 have been fulfilled; (iii) a form of Investor Certificateholder Election Notice substantially in the form of Exhibit F (the "Election Notice") to this Series Supplement; and (iv) a schedule setting forth the Aggregate Interest Rate Caps Notional Amount for the period or periods as indicated from the Extension Date through the new Scheduled Series 1995-1 Termination Date, each as specified in the related Ex- tension Notice. In addition, the Extension Notice shall state that any Investor Certificateholder electing to approve the Extension must do so on or before the Elec- tion Date (as defined below) by returning the annexed Election Notice properly executed to the Trustee in the manner described below. The Extension Notice shall also state that an Investor Certificateholder may withdraw any such election in whole or in part on or before the Election Date, and the Transferor, in its sole discre- tion, may, prior to the Election Date, withdraw its election to extend the Revolving Period. Any Holder that elects to approve an Extension hereunder shall deliver a duly executed Election Notice to the Trustee at the time Tenant elects address designated in the Extension Notice on or before 3:00 p.m., New York City time, on or before the fifth Business Day preceding the Extension Date (such Business Day constituting the "Election Date").
(b) No extension shall occur unless each of the following conditions have been satisfied prior to exercise the option herein granted close of business on the Election Date: (i) no Pay Out Event shall have occurred and be continuing, (ii) there shall have been delivered to the Trustee (A) the Extension Tax Opinion and the Extension Opinion, each addressed to the Trustee and (B)(1) written confirmation from each Rating Agency rating the Class A Certificates that the Extension will not cause such Rating Agency to lower or withdraw its then current rating of such Inves- tor Certificates, (2) written confirmation from each Rating Agency rating the Class B Certificates that the Extension will not cause such Rating Agency to lower or withdraw its then current rating of such Investor Cer- tificates, and (3) written confirmation from each Rating Agency rating its Class C Certificates that the exten- sion will not cause such Rating Agency to lower or with- draw its then current rating of such Investor Certifi- catex, (xii) each of the holders of the Class A Certifi- catex, xxe Class B Certificates, and the Class C Certif- icates shall have elected to approve the Extension by returning to the Trustee on or before the Election Date the executed Election Notice annexed to the Extension Notice delivered to the Certificateholders pursuant to subsection 6.17(a) of the Agreement. If, by the close of business on the Election Date, all of the conditions stated in this subsection 6.17(b) of the Agreement have not been satisfied and all such documents delivered to the Trustee pursuant to this subsection 6.17(b) of the Agreement are not in form satisfactory to it, or if the Transferor has notified the Trustee, prior to the Elec- tion Date, that the Transferor has exercised its right to withdraw its election of an Extension, no Extension shall occur.
(c) The execution by the required number of Investor Certificateholders of the applicable Election Notice and return thereof to the Trustee by the required Date and time, the continued election by the Transferor to extend the Revolving Period at the Election Date, and the compliance with all of the provisions of this Sec- tion 6.17, shall evidence an extension or renewal of the obligations represented by the Investor Certificates, and not a novation or extinguishment of such obligations or a substitution with respect thereto.
(d) To the extent required by applicable laws and regulations, as evidenced by an Opinion of Counsel delivered by the Transferor to the Trustee, the provi- sions of this Section 6.17 shall or may be modified to comply with all applicable laws and regulations in ef- fect at the time of the commencement Extension.
SECTION 8. Series 1995-1 Pay Out Events. If any one of the Extended Term following events shall occur with respect to the Series 1995-1 Certificates:
(as hereinafter defined)a) failure on the part of the Transfer- or (i) to make any payment or deposit required to be made by the Transferor by the terms of (A) the Agreement or (B) this Series Supplement, on or before the date occurring five Business Days after the date such payment or deposit is required to be made herein, (ii) to per- form in all material respects the Transferor's covenant not to sell, pledge, assign, or transfer to any person, or grant any unpermitted lien on, any Receivable; or (iii) duly to observe or perform in any material respect any covenants or agreements of the Transferor set forth in the Agreement or this Series Supplement, which fail- ure has a material adverse effect on the Series 1995-1 Certificateholders and which continues unremedied for a period of 60 days (or, in the case of a covenant pursu- ant to Section 3A of this Series Supplement, 30 days) after the date on which written notice of such failure, requiring the same to be remedied, shall have been given to the Transferor by the Trustee, or to the Transferor and the Trustee by the Holders of Series 1995-1 Certifi- catex xxxdencing Undivided Interests aggregating not less than 50% of any of the Class A Invested Amount, the Class B Invested Amount or the Class C Invested Amount, and continues to affect materially and adversely the interests of the Series 1995-1 Certificateholders for such period;
(b) any representation or warranty made by the Transferor in the Agreement or this Series Sup- plement, (i) this Lease is shall prove to have been incorrect in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”)material respect when made, which notice shall apply continues to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend incor- rect in any material respect for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date period of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) 60 days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rentwritten notice of such failure, then requiring the Fair Market Rent same to be remedied, shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit have been given to the other in a sealed envelope its good faith estimate Transferor by the Trustee, or to the Transferor and the Trustee by the Holders of the Fair Market Rent. If Series 1995-1 Certificates evidencing Undivided Interests aggregating more than 50% of any of the higher Class A Invested Amount, the Class B Invested Amount or the Class C Invested Amount, and (ii) as a result of which the interests of the Se- ries 0005-1 Certificateholders are materially and ad- versely affected and continue to be materially and ad- versely affected for such period; provided, however, that a Series 1995-1 Pay Out Event pursuant to this subsection 8(b) shall not be deemed to have occurred hereunder if the Transferor has accepted reassignment of the related Receivable, or all of such estimates is not more than one hundred five percent (105%) Receivables, if applicable, during such period in accordance with the provisions of the lower of such estimates, then the Fair Market Rent shall be Agreement;
(c) the average of the two estimates. If Portfolio Yields for any three consecutive Monthly Periods is reduced to a rate which is less than the matter is not resolved by weighted average Base Rates for such three consecutive Monthly Periods;
(d) (i) the exchange of estimates, then Fair Market Rent Transferor Interest shall be determined by arbitration less than the Minimum Transferor Interest, (ii) the Series Allocation Percentage of the sum of the total amount of Principal Receivables plus amounts on deposit in the Excess Funding Account shall be less than (B) the sum of the Class A Outstanding Principal Amount, the Class B Outstanding Principal Amount, the Class C Out- standing Principal Amount and the Class D Outstanding Principal Amount or (iii) the total amount of Principal Receivables and the amount on deposit in the Excess Funding Account shall be less than the Minimum Aggregate Principal Receivables, in each case as hereinafter provided. Within seven of any Determina- tion Date;
(7e) days any Servicer Default shall occur which would have a material adverse effect on the Series 1995-1 Certificateholders; or 77
(f) the amount on deposit in the Excess Funding Account as a percentage of the sum of the aggre- gate amount of Principal Receivables plus the amount on deposit in the Excess Funding Account shall equal or exceed 30% on the last day of three consecutive Monthly Periods; then, in the case of any event described in subparagraph (a), (b) or (e), after the exchange of estimatesapplicable grace period, if any, set forth in such subparagraphs, the parties shall select, as an arbitrator, a mutually acceptable member Holders of Series 1995-1 Certificates evidencing Undivided Inter- ests aggregating more than 50% of any of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) daysClass A Invested Amount, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent Class B Invested Amount or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered Class C Invested Amount by notice then given in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for Trustee, the Extended Term. In determining Transferor, the Fair Market Rent with respect to the Monthly Rent Cap Provider and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s Servicer may declare that a pay out event (i.e., Landlord’s or Tenant’sa "Series 1995-1 Pay Out Event") estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs has occurred as of the arbitrator will be equally divided between Landlord date of such notice, and Tenant. Any fees in the case of any counsel engaged by Landlord event described in subparagraphs (c), (d) or Tenant(f), however, a Series 1995-1 Pay Out Event shall be borne by occur without any notice or other action on the party that retained part of the Trustee or the Series 1995-1 Certifi- cateholders immediately upon the occurrence of such counselevent.
Appears in 1 contract
Extension. Provided thatFor the avoidance of doubt, at the time Tenant elects reference to exercise “on the option herein granted and at same terms” in the time of the commencement of the Extended Term (as hereinafter defined)preceding sentence shall mean, (i) this Lease is in full force the case of an offer to the Lenders under any Class of Term Loans, that all of the Term Loans of such Class are offered to be extended for the same amount of time and effect, that the interest rate changes and fees payable with respect to such extension are the same and (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means the case of an offer to negate the effectiveness of Tenant’s exercise Lenders under any Revolving Facility, that all of the option set forth herein), Tenant shall have Revolving Credit Commitments of such Facility are offered to be extended for the option same amount of time and that the interest rate changes and fees payable with respect to extend such extension are the same. Any such extension (an “Extension”) agreed to between the Borrower and any such Lender (an “Extending Lender”) will be established under this Agreement by implementing an Other Term of this Lease Loan for two such Lender if such Lender is extending an existing Term Loan (2) such extended terms of five (5) years each (eachTerm Loan, an “Extended TermTerm Loan”) or an Other Revolving Credit Commitment for such Lender if such Lender is extending an existing Revolving Credit Commitment (such extended Revolving Credit Commitment, an “Extended Revolving Credit Commitment,” and any Revolving Loan made pursuant to such Extended Revolving Credit Commitment, an “Extended Revolving Loan”). The Extended Term Each Pro Rata Extension Offer shall commence immediately following specify the end of date on which the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except Borrower proposes that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend Loan shall be made or the proposed Extended Revolving Credit Commitment shall become effective (the “Notice to ExtendExtension Election”), which shall be a date not earlier than ten (10) Business Days after the date on which notice shall apply is delivered to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not Administrative Agent nor later than twelve sixty (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (3060) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent Extension notice (105%) of the lower of or such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved shorter or longer period agreed to by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”Administrative Agent in its reasonable discretion), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.
Appears in 1 contract
Samples: Credit Agreement (Xperi Corp)
Extension. Provided that, at (a) Extension Company may by prior written notice to Administrative Agent elect to request the time Tenant elects to exercise the option herein granted and at the time extension of the commencement final maturity of the Extended Loans or the Incremental Term (Loans. Company and any Lender or Incremental Lender, as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default the case may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended TermExtending Lender”) may agree to extend the maturity date and otherwise modify the terms of such Lender’s or Incremental Lender’s Loans or Incremental Term Loans, as the case may be (each such transaction, an “Extension”); provided that the aggregate principal amount of the Extension made at any one time under this Section 2.13 shall be not less than $20,000,000. Such notice shall specify (i) the date (the “Extension Effective Date”) on which Company proposes that the Extension shall be effective, which shall be a date not less than five Business Days after the date on which such notice is delivered to Administrative Agent and (ii) the proposed final maturity date of the extended Loans and/or Incremental Term Loans (the “Extension Loans”). The Extended Term Extension shall commence immediately following the end become effective, as of the Original Extension Effective Date; provided that (A) Company shall have offered to all Lenders the opportunity to participate in such Extension on a pro rata basis with respect to the Loans and all Incremental Lenders the opportunity to participate in such Extension on a pro rata basis with respect to Incremental Term Loans and on the same terms and conditions to each such Lender or the first Extended TerraIncremental Lender, as the case may be. All terms , and conditions applicable during any Lender or Incremental Lender, as the Original Term shall apply during case may be, may elect to agree or to decline, in its sole discretion; (B) both before and after giving effect to the Extension, each Extended Term including without limitation of the obligation to pay Operating Expenses representations and Taxes except that (i) Tenant shall have no further right to extend warranties contained in this Agreement and in the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent other Loan Documents shall be as provided herein, true and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises correct in all material respects on and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal Extension Effective Date to the fair market parking fees, projected same extent as though made on and as of that date, except to the commencement of the Extended Termextent such representations and warranties specifically relate to an earlier date, in each which case also referred such representations and warranties shall have been true and correct in all material respects on and as of such earlier date; provided that if a representation and warranty is qualified as to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of materiality, the Extended Term, if that is required to arrive at fair market rent. Landlord materiality qualifier set forth above shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent be disregarded with respect to such representation and warranty for purposes of this condition; (C) the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent Extensions shall be determined as provided below. If Landlord effected pursuant to one or more extension agreements in form and Tenant are unable substance reasonably satisfactory to agree on the Fair Market Rent within said thirty Administrative Agent (30an “Extension Agreement”) day periodexecuted and delivered by Company, then within five each other Loan Party, each Extending Lender, Administrative Agent and (5in respect of any Extension of Revolving Loan Commitments where an Exposure Extension is being requested or Issuing Lender or Swing Line Lender is otherwise being requested to issue Letters of Credit or make Swing Line Loans under such extended Revolving Loan Commitments) days thereafterIssuing Lender and Swing Line Lender, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent which shall be recorded in the average of the two estimates. If the matter is not resolved Register; and (D) Company shall deliver or cause to be delivered documents reasonably requested by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on Administrative Agent in connection with any such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counseltransaction.
Appears in 1 contract
Extension. Provided thatNotwithstanding the Expiration Date set forth in Section 2(a) above, at the time Tenant elects to exercise Term will be automatically extended through July 31, 2030, the option herein granted and at the time scheduled date of expiration of the commencement Master Lease, which shall be deemed to be the Expiration Date for all purposes of the Extended Term this Sublease (as hereinafter definedand Subtenant shall not be deemed to be holding over), if Subtenant (A) is not in Default (defined in Section 8 below), (iB) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by has entered into an agreement with Landlord at its sole discretion and may not be used by Tenant as providing for Subtenant to occupy the Subleased Premises on a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term direct” basis beyond the second Extended Term hereinabove provided, Expiration Date (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the a “Notice to ExtendDirect Occupancy Agreement”), which notice shall apply to (C) has notified Sublandlord of the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve existence of such Direct Occupancy Agreement at least three (123) months prior to the initially scheduled Expiration Date, and (D) if required by Sublandlord, has delivered to Sublandlord a release executed by Landlord, in form and substance reasonably satisfactory to Sublandlord, pursuant to which Sublandlord is released from any obligation under the Master Lease to remove installations, alterations, additions, partitions or fixtures from the Subleased Premises upon the expiration date of the then current termMaster Lease. Notwithstanding the foregoing or anything to the contrary, time being of upon receiving the essence. If Tenant fails to give a timely Expansion Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term(defined below), and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if provided that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates Subtenant is not more than one hundred five percent (105%) of the lower of such estimatesin Default, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator Sublandlord shall not at any time after receiving the Expansion Notice commence the performance of any new alterations, additions or improvements that would be required to select be removed at the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s expiration or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs earlier termination of the arbitrator Master Lease; provided that, this clause will not be equally divided between Landlord and Tenant. Any fees of deemed to prohibit Sublandlord from completing any counsel engaged by Landlord or Tenantalterations, however, shall be borne by additions improvements in progress at the party that retained such counseltime Sublandlord receives the Expansion Notice.
Appears in 1 contract
Samples: Sublease (Corcept Therapeutics Inc)
Extension. Provided that, at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s 's exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “"Extended Term”"). The Extended Term shall commence immediately following the end of the Original Term or the first Extended TerraTerm, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (iniii) Tenant shall not be entitled to Tenant’s 's Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “"Notice to Extend”"), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “"Fair Market Rent.” " The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s 's proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s 's receipt of Tenant’s 's Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s 's proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s 's proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“"ASREC”"), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days7)days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s 's estimate of Fair Market Rent or the Tenant’s 's estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s 's decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s 's estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s 's (i.e., Landlord’s 's or Tenant’s's) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s 's estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.
Appears in 1 contract
Samples: Lease (Alnylam Pharmaceuticals Inc)
Extension. Provided that(a) If a Pay Out Event has not occurred or has occurred but has been remedied on or before the 30th Business Day preceding the Extension Date, the Transferor, in its sole discretion, may deliver to the Trustee on or before such date a notice 41 45 substantially in the form of Exhibit B (the "EXTENSION NOTICE") to this Variable Funding Supplement. The Trustee shall mail a copy of the Extension Notice and all documents annexed thereto to the Investor Certificateholders of record on the date of receipt thereof. The Transferor shall state in the Extension Notice that it intends to extend the Revolving Period until the later Amortization Period Commencement Date set forth in the Extension Notice. The Extension Notice shall also set forth the next Extension Date. The following documents shall be annexed to the Extension Notice: (i) a form of the Opinion of Counsel addressed to the Transferor and the Trustee to the effect that despite the Extension the Transferor will not be treated as an association taxable as a corporation (the "EXTENSION TAX OPINION"); (ii) a form of the Opinion of Counsel addressed to the Transferor and the Trustee (the "EXTENSION OPINION") to the effect that (A) the Transferor has the corporate power and authority to effect the Extension, (B) the Extension has been duly authorized by the Transferor, and (C) all conditions precedent to the Extension required by this Section 6.16 have been fulfilled; and (iii) a form of Investor Certificateholder Election Notice substantially in the form of Exhibit C (the "ELECTION NOTICE") to this Variable Funding Supplement. In addition, the Extension Notice shall state that any Investor Certificateholder electing to approve the Extension must do so on or before the Election Date (as defined below) by returning the annexed Election Notice properly executed to the Trustee in the manner described below. The Extension Notice shall also state that an Investor Certificateholder may withdraw any such election in whole or in part on or before the Election Date, and the Transferor, in its sole discretion, may, prior to the Election Date, withdraw its election to extend the Revolving Period. Any Holder that elects to approve an Extension hereunder shall deliver a duly executed Election Notice to the Trustee at the time Tenant elects address designated in the Extension Notice on or before 3:00 p.m., New York City time, on or before the fifth Business Day preceding the Extension Date (such Business Day constituting the "ELECTION DATE").
(b) No Extension shall occur until prior satisfaction of the following conditions at the close of business on the Election Date: (i) no Pay Out Event shall have occurred and be continuing, (ii) there shall have been delivered to exercise the option herein granted Trustee (A) the Extension Tax Opinion and the Extension Opinion, each addressed to the Transferor and the Trustee and (B) written confirmation from each Rating Agency rating the Class A Certificates or the Class B Certificates or providing informal ratings on such Series 1997-1 Variable Funding Certificates for the benefit of a Class A Certificateholder or Class B Certificateholder that the Extension will not cause such Rating Agency to lower its then current rating or informal rating or withdraw its ratings or informal ratings of such Investor Certificates, (iii) the holders of more than 50% of the principal amount of Class A Certificates and of more than 50% of the principal amount of Class B Certificates shall have elected to approve the Extension by returning to the Trustee on or before the Election Date the executed Election Notice annexed to the Extension Notice delivered to such Class A Certificateholders and Class B Certificateholders pursuant to subsection 6.16(a) of the Agreement, (iv) if provided for by the Transferor, in its sole discretion, in the Extension Notice, the holders of a specified minimum amount of outstanding Class C Certificates shall have elected to approve of the Extension by returning to the Trustee on or before the Election Date the executed form of Election Notice annexed to the Extension Notice delivered to such Class C Certificateholders pursuant to subsection 6.16(a) of the Agreement and (v) the Transferor shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each to the effect that all conditions precedent in this subparagraph (b) have been satisfied. If, by the close of business on the Election Date, all of the conditions stated in this subsection 6.16(b) of the Agreement have not been satisfied and all such documents delivered to the Trustee pursuant to this subsection 6.16(b) of the Agreement are not in form satisfactory to it, or if the Transferor has notified the Trustee, prior to the Election Date, that the Transferor has exercised its right to withdraw its election of an Extension, no Extension shall occur.
(c) The execution by the required number of Investor Certificateholders of the applicable Election Notice and return thereof to the Trustee by the required date and time, the continued election by the Transferor to extend the Revolving Period at the Election Date, and the compliance with all of the provisions of this Section 6.16, shall evidence an extension or renewal of the obligations represented by the Investor Certificates delivered in exchange therefor, and not a novation or extinguishment of such obligations or a substitution with respect thereto.
(d) To the extent required by applicable laws and regulations, as evidenced by an Opinion of Counsel delivered by the Transferor to the Trustee, the provisions of this Section 6.16 shall or may be modified to comply with all applicable laws and regulations in effect at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rentprepared Extension.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.
Appears in 1 contract
Samples: Variable Funding Supplement (Federated Department Stores Inc /De/)
Extension. Provided that, at the time Tenant elects (a) Not earlier than 60 days and not later than 30 days prior to exercise the option herein granted and at the time each anniversary of the commencement Effective Date, but on no more than two occasions during the term of this Agreement, XL Group may, by written notice (an “Extension Request”) to the Extended Term Administrative Agent (as hereinafter defined), (iwho shall promptly notify the Lenders) this Lease is request an extension to the Commitment Termination Date then in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) effect (which default may extension shall be waived by Landlord at its sole discretion and may not be used by Tenant as for a means to negate the effectiveness period of Tenant’s exercise of the option one year). Such notice shall set forth herein), Tenant shall have the option date on which such extension is requested to extend the Term of this Lease for two become effective (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant which shall not be entitled less than 15 Business Days or more than 45 Business Days after the date of such notice, unless otherwise agreed to Tenant’s Construction Allowance or any other contribution by Landlord the Administrative Agent).
(b) Each Lender, acting in its sole and individual discretion, shall, by notice to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend Administrative Agent given not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days 10 Business Days after the date on which Landlord gives Tenant Landlordthe Administrative Agent received XL Group’s proposal for Fair Market Rent, then Extension Request (the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASRECLender Notice Date”), advise the Administrative Agent whether or not such Lender agrees to such extension (each applicable Lender that determines to so extend its Commitment Termination Date then in effect, an “Extending Lender”). Each Lender that determines not to so extend its Commitment Termination Date then in effect (a successor organization to ASREC. If “Non-Extending Lender”), shall notify the parties cannot agree on Administrative Agent of such person, then within a second period of seven fact promptly after such determination (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his event no later than the Lender Notice Date), and any Lender that does not so advise the Administrative Agent on or her appointment, before the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There Lender Notice Date shall be no discovery or similar proceedingsdeemed to be a Non-Extending Lender. The arbitratorelection of any Lender to agree to such extension shall not obligate any other Lender to so agree, and it is understood and agreed that no Lender shall have any obligation whatsoever to agree to any request made by XL Group for any extension of the Commitment Termination Date.
(c) The Administrative Agent shall notify XL Group of each applicable Lender’s decision determination under this Section no later than the date that is 10 Business Days prior to the applicable date of extension requested by XL Group.
(d) An extension shall be effected pursuant to an agreement (an “Extension Agreement”) executed and delivered by each Account Party, Guarantor, each applicable Extending Lender and the Administrative Agent with the consent of the Required Lenders; provided that no extension shall become effective unless on the date of effectiveness thereof:
(i) no Default shall have occurred and be continuing,
(ii) the representations and warranties of the Account Parties set forth in this Agreement shall be true and correct in all material respects on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date) except where such representations and warranties are conditioned by materiality or Material Adverse Effect and then such representations and warranties shall be true and correct in all respects; and
(iii) the Administrative Agent shall have received a certificate from XL Group signed by a Financial Officer of XL Group (A) certifying the accuracy of the foregoing clauses (i) and (ii) and (B) certifying and attaching the resolutions adopted by each Account Party approving or consenting to such extension.
(e) The Administrative Agent shall promptly notify each Lender as to which estimate the effectiveness of Fair Market Rent shall each Extension Agreement.
(f) Each Extension Agreement may, without the consent of any Lender other than the applicable Extending Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the Fair Market Rent for opinion of the Extended Term shall be rendered in writing Administrative Agent, to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect give effect to the Monthly Rent and provisions of this Section 2.13, including any amendments necessary to treat the Parking Fee, applicable Commitments of the arbitrator shall not be required to select the same party’s estimate accepting Lenders as a new “class” of Fair Market Rent for both the Monthly Rent and the Parking Fee, but commitments hereunder; provided that XL Group shall have the option right to select one party’s replace any Lender that does not agree to become an Extending Lender in accordance with Section 2.11(b) with any NAIC Approved Bank (i.e.or any other Person whose obligations in respect of Letters of Credit shall be confirmed by a NAIC Approved Bank) that will agree to such Extension Request.
(g) On each existing Commitment Termination Date applicable to each Non-Extending Lender, Landlord’s (i) the Commitment of such Non-Extending Lender that was not extended shall automatically terminate on such date and (ii) XL group shall repay such Non-Extending Lender all of the obligations owing to it under this Agreement, and the Administrative Agent shall administer any necessary reallocation of the applicable LC Exposures (without regard to any pro rata requirements contained elsewhere in this Agreement).
(h) This Section shall supersede any provisions in Section 2.10 or Tenant’s) estimate of Fair Market Rent with respect Section 10.02 to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselcontrary.
Appears in 1 contract
Extension. Provided thatIf Lessee shall not have exercised its option to return the --------- Equipment or its purchase option pursuant to this Section, at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant Lessee shall have the option option, upon the expiration of the Basic Term, to extend the Term of this Lease for two (2) extended terms of five (5) years each (eachAgreement with respect to all, an “Extended Term”). The Extended Term shall commence immediately following the end but not less than all, of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost Equipment for an additional term of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior (the "Extension Term") at a monthly rental to be paid in arrears on each of the twelve (12) Rent Payment Dates following the last day of the Basic Term, and calculated as the sum of (i) that amount as is equal to the expiration date Lease Balance as of the then current term, time being expiration of the essenceBasic Term divided by twelve (12), plus (ii) interest on the Lease Balance outstanding from time to time during the Extension Term at a rate per annum equal to the sum of two hundred (200) basis points over the Daily Borrowing Rate calculated, as to each day in any Rent Payment Period, at the Daily Borrowing Rate applicable to such day, in twelve (12) equal monthly installments. If Tenant fails Rent during the Extension Term shall be paid to give a timely Notice to Extend within Lessor in the time provided above, this Lease shall automatically expire at manner set forth in Section 2(b) hereof. At the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Extension Term, Monthly provided that Lessee is not then in Default under this Agreement, Lessee shall purchase all, and not less than all, of such Equipment for $1.00 cash, together with all Rent equal to 95 percent and other sums then due on such date, plus all taxes and charges upon transfer (if any) and all other reasonable and documented expenses incurred by Lessor in connection with such transfer. Upon satisfaction of the fair market rent for comparable laboratory space conditions specified in Cambridgethis Paragraph, MassachusettsLessor will transfer, projected as on an AS IS BASIS, all of the commencement of the Extended Term, Lessor's interest in and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rentEquipment. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator Lessor shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent make and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s may specifically disclaim any representation or Tenant’s) estimate of Fair Market Rent with respect warranty as to the Monthly Rent condition of the Equipment and any other matters (except that Lessor shall warrant that it has conveyed whatever interest it received from Lessee in the other party’s estimate Equipment free and clear of Fair Market Rent with respect any Lessor's Lien). At Lessee's expense, Lessor shall execute and deliver to Lessee such Uniform Commercial Code Statements of Termination as reasonably may be required in order to terminate any interest of Lessor in and to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselEquipment.
Appears in 1 contract
Samples: Master Lease Agreement (First American Financial Corp)
Extension. Provided thatSubject to Sections 31B and 31C below, at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease may be extended, at the option of Tenant, for two (2) extended terms additional periods of five (5) years each (each, an “Extended Term”the "Renewal Terms"). The Extended Term Renewal Terms shall commence immediately following be upon the end same terms, covenants and conditions contained in this Lease, excluding the provisions of Section 30 and this Section 31 of the Original Term or Lease and except for the first Extended Terra, as the case may be. All terms and conditions applicable amount of Base Rent payable during the Original Renewal Terms, and any reference in the Lease to the "Term" of the Lease shall be deemed to include the Renewal Terms and apply thereto, unless it is expressly provided otherwise. Tenant shall have no extension options beyond the two aforesaid five year extension options. Any termination of this Lease during the initial Term of this Lease shall apply terminate all rights under this Section 31.
A. The initial Base Rent during each Extended Term including without limitation the Renewal Terms shall be at a rate equal to the greater of (i) the Base Rent existing on the date Tenant delivers its initial non-binding notice, subject to escalation, and (ii) the then prevailing Market Rate (defined hereinafter) for fully credit-worthy tenants for comparable basement space in the Building and other comparable office buildings in the vicinity of the Building as reasonably determined by Landlord. Tenant's obligation to pay Operating Expenses Cost Share Rent and Taxes except that Tax Share Rent pursuant to Section 2 of this Lease shall continue during the Renewal Terms.
B. For purposes of this Lease, "Market Rate", as defined above, shall be determined as follows:
(i) On or before five (5) days after the time at which Tenant shall have no further right to extend must provide the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend with initial non-binding written notice under this Lease for the Extended Term by giving Landlord written notice of its election intent to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise any of its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option rights to extend the Term of this Lease for the Extended Term by delivering the Notice to Extendunder this Section 31 or, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty on or before five (305) days after Landlord’s receipt either Landlord or Tenant requests in writing a determination of Tenant’s Notice to ExtendMarket Rate, (but in no event prior to the last date which determination is required for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Termpurposes of enforcing any provision of this Lease, Landlord and Tenant shall commence negotiations to agree upon the Fair Market RentRate (to be multiplied by the rentable square feet in the Premises) applicable thereto. If the Landlord and Tenant are unable to reach agreement on the Fair Market Rent Rate within thirty twenty-one (3021) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rentnegotiations commenced, then the Fair Market Rent Rate shall be determined as provided in accordance with Section 31B(ii) below. .
(ii) If the Landlord and Tenant are unable to agree reach agreement on the Fair Market Rent Rate within said thirty twenty-one (3021) day period, then within five seven (57) days thereafterdays, the Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market RentRate. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, estimates then the Fair Market Rent Rate shall be the average of the two estimates. Otherwise, within five (5) days either the Landlord or Tenant may submit the question to arbitration in accordance with Section 31B(iii) below.
(iii) If the matter is not resolved Landlord and Tenant are unable to agree upon the Market Rate by the exchange of estimates, then Fair Market Rent shall be determined either may, by arbitration as hereinafter providedwritten notice of the other within five (5) days after the exchange of good faith estimates pursuant to Section 31B(ii) above, request to resolve the dispute by arbitration. Within seven (7) days after the exchange receipt of estimatessuch request, the parties shall select, as an arbitrator, a mutually acceptable member of independent MAI appraiser with experience in real estate activities, including at least five (5) years experience in appraising office space in the American Society of Real Estate Counselors Chicago area (“ASREC”a "Qualified Appraiser"), or a successor organization to ASREC. If the parties cannot agree on such persona Qualified Appraiser, then within a second period of seven (7) days, each shall select elect a member of ASREC Qualified Appraiser and within a third period of seven ten (710) days, days thereafter the two appointed persons Qualified Appraisers shall select a third member of ASREC Qualified Appraiser and the third person Qualified Appraiser shall be the arbitratorarbitrator and shall determine the Market Rate. If one party shall fail to make such appointment within said second seven (7) day period, then the person Qualified Appraiser chosen by the other party shall be the sole arbitrator. .
(iv) Once the arbitrator has been selected as provided for in Section 31B(iii) above, then, as soon thereafter as practicable, practicable but in any case within fourteen twenty-one (1421) days after his or her appointmentdays, the arbitrator shall determine select one of the Fair two estimates of Market Rent Rate submitted by selecting either the Landlord’s estimate of Fair Market Rent or the Landlord and Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to , which estimate of Fair Market Rent shall be the Fair Market Rent for one that is closer to the Extended Term fair market net rental value as determined by the arbitrator. The value so selected shall be rendered the Market Rate. The decision of the arbitrator as to the Market Rate shall be submitted in writing to both Landlord to, and Tenant and shall be final and binding upon them on, the Landlord and shall be Tenant. If the Monthly Rent and Parking Fee for the Extended Termarbitrator believes that expert advice would materially assist him, he may retain one or more qualified persons, including but not limited to, legal counsel, brokers, architects or engineers, to provide such expert advice. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, The party whose estimate is not chosen by the arbitrator shall not be required to select pay the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenantof any experts retained by the arbitrator. Any fees of any counsel or expert engaged directly by the Landlord or Tenant, however, shall be borne by the party obtaining such counsel or expert.
C. Each option to extend shall be exercised by Tenant delivering an initial non-binding written notice to Landlord not less than twelve (12) full calendar months prior to the expiration of the initial Term of this Lease or first Renewal Term, as applicable. Thereafter, the Market Rate for the particular Renewal Term shall be calculated pursuant to Section 31B. Such calculation shall reflect the Market Rate that retained would be payable per annum for a term commencing on the first day of the Renewal Term with respect to which the calculation is being made, provided that such counselcalculation shall be final and shall not be recalculated at the actual commencement of the Renewal Term (if any). Tenant shall give Landlord final binding written notice of intent to exercise its option to extend, if at all, no later than nine (9) months prior to the expiration of the initial Term or first renewal term, as applicable.
D. Tenant's right to exercise its option to extend this Lease pursuant to this Section 31, is subject to the following conditions: (i) that on the date that Tenant delivers its final binding written notice of its election to exercise its option to extend, Tenant is not in default under any of the terms, covenants or conditions of this Lease, after the expiration of any applicable notice and cure periods, and (ii) that Tenant shall not have assigned this Lease or sublet the Premises at any time during the period commencing with the date that Tenant delivers its final binding written notice to Landlord of its exercise of such option to extend and ending on the commencement date of the Renewal Term, or at any time prior to such period, if such assignment or sublease extends into such period.
E. If Tenant fails to give its initial non-binding written notice of intent or its final binding written notice of intent to exercise its option to extend when due as provided in this Section 31, Tenant will be deemed to have waived such option to extend.
Appears in 1 contract
Samples: Lease (Focal Communications Corp)
Extension. Provided that, at the time Tenant elects (a) Not earlier than 60 days and not later than 30 days prior to exercise the option herein granted and at the time each anniversary of the commencement Effective Date, but on no more than two occasions during the term of this Agreement, XL Group may, by written notice (an “Extension Request”) to the Extended Term Administrative Agent (as hereinafter defined), (iwho shall promptly notify the Lenders) this Lease is request an extension to the Commitment Termination Date then in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) effect (which default may extension shall be waived by Landlord at its sole discretion and may not be used by Tenant as for a means to negate the effectiveness period of Tenant’s exercise of the option one year). Such notice shall set forth herein), Tenant shall have the option date on which such extension is requested to extend the Term of this Lease for two become effective (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant which shall not be entitled less than 15 Business Days or more than 45 Business Days after the date of such notice, unless otherwise agreed to Tenant’s Construction Allowance or any other contribution by Landlord the Administrative Agent).
(b) Each Lender, acting in its sole and individual discretion, shall, by notice to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend Administrative Agent given not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days 10 Business Days after the date on which Landlord gives Tenant Landlordthe Administrative Agent received XL Group’s proposal for Fair Market Rent, then Extension Request (the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASRECLender Notice Date”), advise the Administrative Agent whether or not such Lender agrees to such extension (each applicable Lender that determines to so extend its Commitment Termination Date then in effect, an “Extending Lender”). Each Lender that determines not to so extend its Commitment Termination Date then in effect (a successor organization to ASREC. If “Non-Extending Lender”), shall notify the parties cannot agree on Administrative Agent of such person, then within a second period of seven fact promptly after such determination (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his event no later than the Lender Notice Date), and any Lender that does not so advise the Administrative Agent on or her appointment, before the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There Lender Notice Date shall be no discovery or similar proceedingsdeemed to be a Non-Extending Lender. The arbitratorelection of any Lender to agree to such extension shall not obligate any other Lender to so agree, and it is understood and agreed that no Lender shall have any obligation whatsoever to agree to any request made by XL Group for any extension of the Commitment Termination Date.
(c) The Administrative Agent shall notify XL Group of each applicable Lender’s decision determination under this Section no later than the date that is 10 Business Days prior to the applicable date of extension requested by XL Group.
(d) An extension shall be effected pursuant to an agreement (an “Extension Agreement”) executed and delivered by each Account Party, Guarantor, each applicable Extending Lender and the Administrative Agent with the consent of the Required Lenders; provided that no extension shall become effective unless on the date of effectiveness thereof:
(i) no Default shall have occurred and be continuing,
(ii) the representations and warranties of the Account Parties set forth in this Agreement shall be true and correct in all material respects on and as of such date (or, if any such representation or warranty is expressly stated to have been made as of a specific date, as of such specific date) except where such representations and warranties are conditioned by materiality or Material Adverse Effect and then such representations and warranties shall be true and correct in all respects; and
(iii) the Administrative Agent shall have received a certificate from XL Group signed by a Financial Officer of XL Group (A) certifying the accuracy of the foregoing clauses (i) and (ii) and (B) certifying and attaching the resolutions adopted by each Account Party approving or consenting to such extension.
(e) The Administrative Agent shall promptly notify each Lender as to which estimate the effectiveness of Fair Market Rent shall each Extension Agreement.
(f) Each Extension Agreement may, without the consent of any Lender other than the applicable Extending Lenders, effect such amendments to this Agreement and the other Credit Documents as may be necessary or appropriate, in the Fair Market Rent for opinion of the Extended Term shall be rendered in writing Administrative Agent, to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect give effect to the Monthly Rent and provisions of this Section 2.21, including any amendments necessary to treat the Parking Fee, applicable Loans and/or Commitments of the arbitrator shall not be required to select the same party’s estimate accepting Lenders as a new “class” of Fair Market Rent for both the Monthly Rent and the Parking Fee, but commitments hereunder; provided that XL Group shall have the option right to select one party’s replace any Lender that does not agree to become an Extending Lender in accordance with Section 2.19(b) with any NAIC Approved Bank (i.e.or any other Person whose obligations in respect of Letters of Credit shall be confirmed by a NAIC Approved Bank) that will agree to such Extension Request.
(g) On each existing Commitment Termination Date applicable to each Non-Extending Lender, Landlord’s (i) the Commitment of such Non-Extending Lender that was not extended shall automatically terminate on such date and (ii) XL group shall repay such Non-Extending Lender all of the obligations owing to it under this Agreement, and the Administrative Agent shall administer any necessary reallocation of the applicable LC Exposures (without regard to any pro rata requirements contained elsewhere in this Agreement).
(h) This Section shall supersede any provisions in Section 2.18 or Tenant’s) estimate of Fair Market Rent with respect Section 10.02 to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselcontrary.
Appears in 1 contract
Extension. Provided that, at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant Lessee shall have the one (1) option to extend the Term of this Lease under the same terms and conditions as provided herein for two (2) extended terms of a five (5) years each (eachyear term, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution exercisable by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord providing Lessor written notice of its election to extend (the “Notice "Notice") of Lessee's intent to Extend”), which notice shall apply to exercise the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months extension at least one year prior to the expiration date of the then current termLease Term. The Base Rental for the renewal option period shall be calculated in accordance with the formula set forth on Exhibit D, time being --------- provided that Lessee shall have no obligation to extend pursuant to this Article XXXIV until the Base Rental for the option period is established and Lessee accepts such rate within sixty (60) days of Lessor's receipt of the essenceNotice.
7. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end Exhibit D of the then current term, unless sooner terminated as provided hereinLease is hereby replaced with the Exhibit D attached hereto and made a part hereof.
8. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent Exhibit P of the fair market rent for comparable laboratory space Lease is hereby deleted in Cambridgeits entirety. To the extent that the Purchase Option Agreement set forth in Exhibit P was executed by Lessor and Lessee, MassachusettsLessor and Lessee hereby agree to terminate said Purchase Option Agreement.
9. Lessor hereby agrees that, projected as of the commencement of the Extended Termat Lessee's sole option, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord Lessor shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement either pay Lessee on the Fair Market Rent within thirty (30) days after Sale Date the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rentamount of $600,000.00 or shall provide Lessee, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day periodBase Rental payment dates following the Sale Date, then within five (5) days thereafter, Landlord with a rent credit in the aggregate amount of $600,000.00.
10. The parties hereto hereby agree to execute and Tenant shall each simultaneously submit record the First Amendment to the other in Memorandum of Lease and Termination of Memorandum of Option attached hereto as Exhibit A-1 and made a sealed envelope its good faith estimate of the Fair Market Rentpart hereof.
11. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration Except as hereinafter provided. Within seven (7) days after the exchange of estimatesherein amended, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC Lease remains in full force and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counseleffect.
Appears in 1 contract
Samples: Lease Agreement (Wells Real Estate Investment Trust Inc)
Extension. Provided that(a) If a Series 1997-1 Pay Out Event has not occurred or has occurred but has been waived or remedied on or before the 30th Business Day preceding the Extension Date, at the time Tenant elects Transferor, in its sole discretion, may deliver to exercise the option herein granted and at Trustee on or before such date a notice substantially in the time form of Exhibit C (the "Extension Notice") to this Supplement. The Trustee shall deliver a copy of the commencement Extension Notice and all documents annexed thereto to the Investor Certificateholders of record on the Extended Term (as hereinafter defined), date of receipt thereof. The Transferor shall state in the Extension Notice that it intends to extend the Revolving Period until the later Amortization Period Commencement Date set forth in the Extension Notice. The Extension Notice shall also set forth the next Extension Date. The following documents shall be annexed to the Extension Notice: (i) a form of the Opinion of Counsel addressed to the Transferor and the Trustee to the effect that despite the Extension the Trust will not be treated as an association taxable as a corporation (the "Extension Tax Opinion"); (ii) a form of the Opinion of Counsel addressed to the Transferor and the Trustee (the "Extension Opinion") to the effect that (A) the Transferor has the corporate power and authority to effect the Extension, and (B) the Extension has been duly authorized by the Transferor; and (iii) a form of Investor Certificateholder Election Notice substantially in the form of Exhibit D (the "Election Notice") to this Lease is Supplement. In addition, the Extension Notice shall state that any Investor Certificateholder electing to approve the Extension must do so on or before the Election Date (as defined below) by returning the annexed Election Notice properly executed to the Trustee in full force the manner described below. The Extension Notice shall also state that an Investor Certificateholder may withdraw any such election in whole or in part on or before the Election Date, and effectthe Transferor, in its sole discretion, may, prior to the Election Date, withdraw its election to extend the Revolving Period. Any Holder that elects to approve an Extension hereunder shall deliver a duly executed Election Notice to the Trustee at the address designated in the Extension Notice on or before 3:00 p.m., New York City time, on or before the fifth Business Day preceding the Extension Date (such Business Day constituting the "Election Date").
(b) No Extension shall occur until prior satisfaction of the following conditions at the close of business on the Election Date: (i) no Pay Out Event shall have occurred and be continuing, (ii) Tenant is there shall have been delivered to the Trustee (A) the Extension Tax Opinion and the Extension Opinion, each addressed to the Trustee and (B) written confirmation from any Rating Agency rating that the Extension will not in default hereunder beyond applicable notice cause such Rating Agency to lower or withdraw its ratings of either class of Senior Certificates, (iii) at least one Holder of the Senior Certificates shall have elected to approve the Extension by returning to the Trustee on or before the Election Date the executed Election Notice annexed to the Extension Notice delivered to such Holder of the Senior Certificates pursuant to subsection 6.16(a) of the Agreement, (iv) all of the Holders of the Class C Certificates shall have elected to approve of the Extension by returning to the Trustee on or before the Election Date the executed form of Election Notice annexed to the Extension Notice delivered to such Class C Certificateholders pursuant to subsection 6.16(a) and cure period(s(v) (which default may be waived by Landlord at its sole discretion 1) the sum of Class B Invested Amount and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise Class C Invested Amount will equal or exceed 25% of the option set forth herein)Invested Amount on the Election Date and (2) the Class C Invested Amount on the Election Date will equal or exceed 17.5% of the Invested Amount. If not all of the Holders of the Senior Certificates give written notice of such agreement, Tenant then the Transferor shall re-notify the Holders of the Senior Certificates willing to so extend in writing that one or more Senior Certificateholders have declined to so extend and such remaining Holders of the Senior Certificates willing to extend have the option of extending only for such Holders of the Senior Certificates so consenting to such extension and the outstanding Invested Amount of such non-extending Holders of the Senior Certificates shall not be extended. If, by the close of business on the Election Date, all of the conditions stated in this subsection 6.16(b) have not been satisfied and all such documents delivered to the Trustee pursuant to this subsection 6.16(b) are not in form satisfactory to it, or if the Transferor has notified the Trustee, prior to the Election Date, that the Transferor has exercised its right to withdraw its election of an Extension, no Extension shall occur.
(c) The execution by the Holders of the Senior Certificates of the applicable Election Notice and return thereof to the Trustee by the required date and time, the continued election by the Transferor to extend the Term Revolving Period at the Election Date, and the compliance with all of the provisions of this Lease for two (2) extended terms of five (5) years each (eachSection 6.16, shall evidence an “Extended Term”). The Extended Term shall commence immediately following the end extension or renewal of the Original Term or obligations represented by the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided hereinInvestor Certificates delivered in exchange therefor, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance a novation or any other contribution by Landlord to the cost extinguishment of improvements such obligations or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent substitution with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselthereto.
Appears in 1 contract
Extension. Provided thatIf Lessee shall have exercised its option to renew this Agreement with respect to all available Renewal Terms, at and Lessee shall not have exercised its option to return the time Tenant elects Equipment or its purchase option pursuant to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined)this Section, (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant Lessee shall have the option to extend option, upon the Term expiration of this Lease for two (2) extended terms of five (5) years each (eachall available Renewal Terms, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease Agreement with respect to all, but not less than all, of the Equipment for the Extended Term by giving Landlord written notice an additional term of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior (the “Extension Term”) at a quarterly rental to be paid in arrears on each of the four (4) Rent Payment Dates following the last day of the final Renewal Term, and calculated as the sum of (i) that amount as is equal to the expiration date Lease Balance as of the then current term, time being expiration of the essencefinal Renewal Term, divided by four (4), plus (ii) interest on the Lease Balance outstanding from time to time during the Extension Term at the Extension Term Rate, in four (4) equal quarterly installments. If Tenant fails Rent during the Extension Term shall be paid to give a timely Notice to Extend within Lessor in the time provided above, this Lease shall automatically expire at manner set forth in Section 2(b) hereof. At the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Extension Term, Monthly provided that Lessee is not then in Default under this Agreement, Lessee shall purchase all, and not less than all, of such Equipment for $1.00 cash, together with all Rent equal to 95 percent and other sums then due on such date, plus all taxes and charges upon transfer (if any) and all other reasonable and documented expenses incurred by Lessor in connection with such transfer. Upon satisfaction of the fair market rent for comparable laboratory space conditions specified in Cambridgethis Paragraph, MassachusettsLessor will transfer on an AS IS BASIS, projected as all of the commencement of the Extended Term, Lessor’s interest in and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, Equipment and shall release its interest in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend)Additional Collateral. Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator Lessor shall not be required to select make and may specifically disclaim any representation or warranty as to the same partycondition of the Equipment and any other matters (except that Lessor shall warrant that it has conveyed whatever interest it received from Lessee in the Equipment free and clear of any Lessor’s estimate Lien). At Lessee’s expense, Lessor shall execute and deliver to Lessee such Uniform Commercial Code Financing Statement Amendment Terminations as reasonably may be required in order to terminate any interest of Fair Market Rent for both Lessor in and to the Monthly Rent Equipment and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselAdditional Collateral.
Appears in 1 contract
Samples: Master Lease Financing Agreement (First American Corp)
Extension. Provided that, at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (ia) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant Subtenant shall have the option to extend the initial period constituting the Sublease Term under this Sublease for six (6) additional periods of this Lease for two one (21) extended terms of five (5) years month each (eachonly), an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except provided that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord Subtenant gives Sublandlord written notice of its election to extend the exercise of one or more of such options on or before the date that is four (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (124) months prior to the expiration date of the then current termthen-existing period constituting the Sublease Term, time being of the essence. If Tenant fails to give a timely Notice to Extend within and that at the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of each such notice is given and on the commencement of the Extended Termextension term concerned: (i) this Sublease is in full force and effect; (ii) Subtenant is not in default under this Sublease beyond the expiration of any applicable notice and cure period given to Subtenant in this Sublease; and (iii) Subtenant has not assigned this Sublease or further subleased all or any portion of the Subleased Premises under any then-existing sublease, and a Parking Fee such extension is not being made in connection with or for the Parking Spaces equal to purpose of facilitating any such assignment or sublease. Each such extension term shall commence at 12:01 a.m. on the fair market parking fees, projected as first day following the expiration of the commencement immediately preceding period constituting the Sublease Term.
(b) During each such extension term, all provisions of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord this Sublease shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, apply (but in no event prior as to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent this Paragraph 2.2, only with respect to any remaining options to extend, if any), except for any provision relating to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon improvement of the Fair Market RentSubleased Premises by Sublandlord or at Sublandlord’s expense. If Landlord and Tenant are unable Subtenant fails to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other exercise any such option in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimatestimely manner, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the relevant option to select one party’s extend (i.e., Landlord’s and any subsequent option to extend) shall automatically terminate and be of no further force or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counseleffect.
Appears in 1 contract
Samples: Sublease (Pluralsight, Inc.)
Extension. Provided that, at (a) Borrower shall have the time Tenant elects right to exercise extend the option herein granted and maturity of the Loan for two consecutive six (6) month terms provided that at the time of the commencement of the Extended Term (as hereinafter defined), each extension request:
(i) this Lease is the construction of Project has been completed, lien free, in full force a manner satisfactory to and effect, in accordance with the Plans and Specifications approved by Lender;
(ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness No Event of Tenant’s exercise Default then exists under any of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two Loan Documents;
(2iii) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end An appraisal of the Original Term or Project acceptable to Lender shows that the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date outstanding principal balance of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is Loan does not more than one hundred exceed seventy-five percent (10575%) of the lower appraised value of such estimatesthe Project as completed.
(iv) Immediately prior to the First Extension Period, then the Fair Market Rent Project has achieved a minimum Debt Service Coverage Ratio of at least 1.25 to 1.00, and immediately prior to the Second Extension Period, the Project has achieved a minimum Debt Service Coverage Ratio of at least 1.25 to 1.00; and
(v) Borrower shall have paid Lender an extension fee for each extension in the amount of one half of one percent (0.5%) of the outstanding principal balance of the Loan.
(b) In the event that Borrower qualifies for the First Extension Period and elects to extend the Maturity Date as herein provided, monthly payments of accrued, but unpaid interest, at the Contract Rate shall continue to be due and payable on the first day of each month commencing with the month next following the last scheduled monthly payment during the original term of the Loan and successive payments shall be due on the average first day of each month thereafter until the First Extended Maturity Date, when the unpaid principal balance of the two estimatesLoan and accrued, but unpaid interest, thereon shall be paid in full in one final balloon payment unless Borrower qualifies for the Second Extension Period and elects to extend the First Extended Maturity Date.
(c) If Borrower qualifies for the Second Extension Period and elects to extend the First Extended Maturity Date, monthly payments of accrued, but unpaid interest at the Contract Rate shall continue to be due and payable on the first day of each month commencing with the month next following the last scheduled monthly payment of the First Extended Loan Period and successive payments being due on the first day of the month thereafter until the Second Extended Maturity Date, when the unpaid principal balance of the Loan, an accrued but unpaid interest thereon shall be paid in one final balloon payment.
(d) As a condition to such extensions, Borrower and Guarantor shall execute such amendments, notes, documents, agreements and instruments as Lender reasonably deems necessary to extend the maturity of the Loan, and Borrower shall cause the Title Company to endorse the Title Policy to reflect the extended maturity of the Loan, such endorsement to be in form reasonably satisfactory to Lender. If the matter an endorsement is not resolved available, Borrower shall obtain a new Title Policy for Lender, in form satisfactory to Lender. Borrower shall pay all reasonable costs incurred by the exchange of estimatesLender in connection with such extension, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimatesincluding reasonable attorney's fees, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final pay all Title Company charges and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselpremiums.
Appears in 1 contract
Extension. Provided that(a) Notwithstanding anything to the contrary in this Agreement, at the time Tenant elects pursuant to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each one or more offers (each, an “Extension Offer”) made from time to time by the Borrowers to all Lenders (including any Lender in its separate capacity as an Issuing Bank) having Revolving Commitments with a like Revolving Termination Date on a pro rata basis and on the same terms to each such Lender, the Borrowers are hereby permitted to consummate from time to time transactions with individual Lenders and Issuing Banks that accept the terms contained in such Extension Offers to extend the then effective Revolving Termination Date in respect of each such Lender’s Revolving Commitments (and, if applicable, any such Lender’s obligation to issue Letters of Credit pursuant to such extended Revolving Commitments) and otherwise modify the terms of such Revolving Commitments pursuant to the terms of the relevant Extension Offer (including by increasing the interest rate or fees payable in respect of such Revolving Commitments (and related outstandings)) (each, an “Extension”, and each group of Revolving Commitments, as applicable, in each case as so extended, as well as the original Revolving Commitments (in each case not so extended), being a “tranche”; any Extended TermRevolving Commitments shall constitute a separate tranche of Revolving Commitments from the tranche of Revolving Commitments from which they were converted), so long as the following terms are satisfied: (i) no Event of Default shall have occurred and be continuing at the time the offering document in respect of an Extension Offer is delivered to the Lenders or as of the effective date of any such Extension, (ii) except as to interest rates, fees and extended final maturity (which shall be determined by the Borrowers and set forth in the relevant Extension Offer), the Revolving Commitment of any Lender that agrees to an Extension (an “Extending Revolving Lender”) with respect to all or a portion of such Revolving Commitment extended (an “Extended Revolving Commitment”). The , and the related outstandings (“Extended Term Revolving Loans”), shall commence immediately following the end of the Original Term be a Revolving Commitment (or the first Extended Terrarelated outstandings, as the case may be. All ) with substantially the same terms as the original Revolving Commitments (and conditions related outstandings); provided that
(1) the Borrowing and repayment (except for (A) payments of interest and fees at different rates on Extended Revolving Commitments (and related outstandings), (B) repayments required upon the Revolving Termination Date applicable during to any non-extending Revolving Commitments and (C) repayments made in connection with a permanent repayment and termination of commitments) of Revolving Loans with respect to Extended Revolving Commitments after the Original Term effective date of any Extension shall apply during each be made on a pro rata basis with all other Revolving Commitments, (2) subject to the provisions of clauses (e) and (f) below to the extent dealing with Swingline Loans and Letters of Credit which mature or expire after any Revolving Termination Date when there exists Extended Term including Revolving Commitment with a later Revolving Termination Date, all Swing Line Loans and Letters of Credit shall be participated on a pro rata basis by all Lenders with Revolving Commitments in accordance with their percentage of the Revolving Commitments (and except as provided in clauses (e) and (f) below, without limitation giving effect to changes thereto on an earlier Revolving Termination Date with respect to Swingline Loans and Letters of Credit theretofore incurred or issued), (3) the obligation to pay Operating Expenses permanent repayment of Revolving Commitments with respect to, and Taxes termination of, Extended Revolving Commitments after the applicable Extension date shall be made on a pro rata basis with all other Revolving Commitments, except that the Borrowers shall be permitted to permanently repay and terminate commitments of any such tranche of Revolving Commitments on a better than pro rata basis as compared to any other tranche of Revolving Commitments with a later Revolving Termination Date than such tranche of Revolving Commitments, (4) assignments and participations of Extended Revolving Commitments shall be governed by the same assignment and participation provisions applicable to the Revolving Commitments and (5) at no time shall there be Revolving Commitments hereunder (including Extended Revolving Commitments) which have more than three different Revolving Termination Dates, (iii) if the aggregate principal of Revolving Commitments in respect of which Lenders shall have accepted the relevant Extension Offer shall exceed the maximum aggregate principal amount of Revolving Commitments, as the case may be, offered to be extended by the Borrowers pursuant to such Extension Offer, then the Revolving Commitments, as the case may be, of such Lenders shall be extended ratably up to such maximum amount based on the respective principal amounts (but not to exceed actual holdings of record) with respect to which such Lenders have accepted such Extension Offer, (iv) all documentation in respect of such Extension shall be consistent with the foregoing, (v) any applicable Minimum Extension Condition (as defined below) shall be satisfied unless waived by the applicable Borrower, and (vi) each of the Administrative Agent and each Issuing Bank (to the extent such Issuing Bank elects in its sole discretion to continue as an Issuing Bank pursuant to such Extension) shall have consented to such Extension.
(b) With respect to all Extensions consummated by the Borrowers pursuant to this Section 2.17, (i) Tenant such Extensions shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, not constitute voluntary or mandatory payments or prepayments for purposes of Section 2.07 and (ii) Monthly Rent an Extension Offer is required to be in a minimum amount of $200,000,000, provided that the Borrowers may at their election specify as a condition (a “Minimum Extension Condition”) to consummating any such Extension that a greater minimum amount of Revolving Commitments of any or all applicable tranches be tendered. The Administrative Agent and the Lenders hereby consent to the transactions contemplated by this Section 2.17 (including, for the avoidance of doubt, payment of any interest, fees or premium in respect of any Extended Revolving Commitments on such terms as may be set forth in the relevant Extension Offer) and hereby waive the requirements of any provision of this Agreement (including Sections 3.02, 3.03 and 12.07, but excluding this Section 2.17) or any other Loan Document that may otherwise prohibit any such Extension or any other transaction contemplated by this Section 2.17; provided that in no event shall any such waiver be deemed to apply to any Event of Default that shall have occurred and is continuing.
(c) Except to the extent set forth in clause (a)(vi) above, no consent of any Lender, any Issuing Bank or the Administrative Agent shall be required to effectuate any Extension, other than the consent of each Lender agreeing to such Extension with respect to one or more of its Revolving Commitments (or a portion thereof); provided that no Issuing Bank shall have any obligation to issue, amend, modify, renew or extend any Letter of Credit pursuant to any Extended Revolving Commitment unless it shall have expressly consented thereto in its capacity as an Issuing Bank. All Extended Revolving Commitments and all obligations in respect thereof shall be Obligations and Secured Obligations under this Agreement and the other Loan Documents that are secured by the Collateral on a pari passu basis with all other applicable Obligations under this Agreement and the other Loan Documents. The Lenders hereby irrevocably authorize the Administrative Agent to enter into amendments to this Agreement and the other Loan Documents with the Borrowers as may be necessary in order to establish new tranches or sub-tranches in respect of the Revolving Commitments so extended and such technical amendments as may be necessary or appropriate in the reasonable opinion of the Administrative Agent and the Borrowers in connection with the establishment of such new tranches or sub-tranches, in each case on terms consistent with this Section 2.17, including any modification of the definition of “Revolving Termination Date”. In addition, if so provided hereinin such amendment, participations in Letters of Credit expiring on or after the Revolving Termination Date shall be re-allocated from the Lenders holding Revolving Commitments to the Lenders holding Extended Revolving Commitments in accordance with the terms of such amendment; provided, however, that such participation interests shall, upon receipt thereof by the relevant Lenders holding Revolving Commitments, be deemed to be participation interests in respect of such Extended Revolving Commitments and the terms of such participation interests (including the fees applicable thereto) shall be adjusted accordingly. The effective date of any Extension, which shall be subject to the satisfaction of the conditions set forth in clause (a) above, shall be set forth in any such amendment.
(d) In connection with any Extension, the Borrowers shall provide the Administrative Agent at least ten (10) Business Days (or such shorter period as may be agreed by the Administrative Agent in its reasonable discretion) prior written notice thereof
(e) If the Revolving Termination Date in respect of any tranche of Revolving Commitments occurs at a time when another tranche or tranches of Revolving Commitments is or are in effect with a later Revolving Termination Date, then on the earliest occurring Revolving Termination Date all then outstanding Swingline Loans shall be repaid in full on such date (and there shall be no adjustment to the participations in such Swingline Loans as a result of the occurrence of such Revolving Termination Date); provided, however, that if on the occurrence of such earliest Revolving Termination Date (after giving effect to any repayments of Loans and any reallocation of Letter of Credit participations as contemplated in Section 2.02), there shall exist sufficient unutilized Extended Revolving Commitments so that the respective outstanding Swingline Loans could be incurred pursuant the Extended Revolving Commitments which will remain in effect after the occurrence of such Revolving Termination Date, then there shall be an automatic adjustment on such date of the participations in such Swingline Loans and the same shall be deemed to have been incurred solely pursuant to the relevant Extended Revolving Commitments as of the effective date of the applicable Extension, and (in) Tenant such Swingline Loans shall not be entitled so required to Tenant’s Construction Allowance or be repaid in full on such earliest Revolving Termination Date.
(f) If the Revolving Termination Date in respect of any other contribution by Landlord to the cost tranche of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months Revolving Commitments occurs prior to the expiration date of any Letter of Credit, then (i) if one or more other tranches of Revolving Commitments in respect of which the Revolving Termination Date shall not have occurred are then in effect, such Letters of Credit shall, solely to the extent the applicable Issuing Bank in respect of such Letter of Credit shall have consented to such Extension in its capacity as an Issuing Bank, automatically be deemed to have been issued (including for purposes of the then current term, time being obligations of the essence. If Tenant fails Lenders to give a timely Notice purchase participations therein and to Extend within make Loans and payments in respect thereof pursuant to Section 2.02 under (and ratably participated in by the time provided above, this Lease shall automatically expire at Lenders pursuant to) the end Revolving Commitments in respect of such non-terminating tranches up to an aggregate amount not to exceed the aggregate principal amount of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term unutilized Revolving Commitments thereunder at such time (it being understood that no partial face amount of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent any Letter of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, Credit may be so reallocated)) and a Parking Fee for the Parking Spaces equal (ii) to the fair market parking feesextent not reallocated pursuant to immediately preceding clause (i), projected as the Borrowers shall Cash Collateralize any such Letter of Credit. Commencing with the commencement Revolving Termination Date of any tranche of Revolving Commitments, the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year sublimit for Letters of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent Credit shall be determined as provided below. If Landlord and Tenant are unable to agree on agreed with the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC Lenders and the third person shall be Issuing Banks consenting thereto under the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselextended tranches.
Appears in 1 contract
Extension. Provided that(a) If a Pay Out Event has not occurred or has occurred but has been remedied on or before the 30th Business Day preceding the Extension Date, the Transferor, in its sole discretion, may deliver to the Trustee on or before such date a notice substantially in the form of Exhibit B (the "EXTENSION NOTICE") to this Variable Funding Supplement. The Trustee shall mail a copy of the Extension Notice and all documents annexed thereto to the Investor Certificateholders of record on the date of receipt thereof. The Transferor shall state in the Extension Notice that it intends to extend the Revolving Period until the later Amortization Period Commencement Date set forth in the Extension Notice. The Extension Notice shall also set forth the next Extension Date. The following documents shall be annexed to the Extension Notice: (i) a form of the Opinion of Counsel addressed to the Transferor and the Trustee to the effect that despite the Extension the Trust will not be treated as an association taxable as a corporation (the "EXTENSION TAX OPINION"); (ii) a form of the Opinion of Counsel addressed to the Transferor and the Trustee (the "EXTENSION OPINION") to the effect that (A) the Transferor has the corporate power and authority to effect the Extension, (B) the Extension has been duly authorized by the Transferor, and (C) all conditions precedent to the Extension required by this Section 6.16 have been fulfilled; and (iii) a form of Investor Certificateholder Election Notice substantially in the form of Exhibit C (the "ELECTION NOTICE") to this Variable Funding Supplement. In addition, the Extension Notice shall state that any Investor Certificateholder electing to approve the Extension must do so on or before the Election Date (as defined below) by returning the annexed Election Notice properly executed to the Trustee in the manner described below. The Extension Notice shall also state that an Investor Certificateholder may withdraw any such election in whole or in part on or before the Election Date, and the Transferor, in its sole discretion, may, prior to the Election Date, withdraw its election to extend the Revolving Period. Any Holder that elects to approve an Extension hereunder shall deliver a duly executed Election Notice to the Trustee at the time Tenant elects address designated in the Extension Notice on or before 3:00 p.m., New York City time, on or before the fifth Business Day preceding the Extension Date (such Business Day constituting the "ELECTION DATE").
(b) No Extension shall occur until prior satisfaction of the following conditions at the close of business on the Election Date: (i) no Pay Out Event shall have occurred and be continuing, (ii) there shall have been delivered to exercise the option herein granted Trustee (A) the Extension Tax Opinion and the Extension Opinion, each addressed to the Transferor and the Trustee and (B) written confirmation from each Rating Agency rating the Class A Certificates or the Class B Certificates or providing informal ratings on such Series 2002-1 Variable Funding Certificates for the benefit of a Class A Certificateholder or Class B Certificateholder that the Extension will not cause such Rating Agency to lower its then current rating or informal rating or withdraw its ratings or informal ratings of such Investor Certificates, (iii) the holders of more than 50% of the principal amount of Class A Certificates and of more than 50% of the principal amount of Class B Certificates shall have elected to approve the Extension by returning to the Trustee on or before the Election Date the executed Election Notice annexed to the Extension Notice delivered to such Class A Certificateholders and Class B Certificateholders pursuant to subsection 6.16(a) of the Agreement, (iv) if provided for by the Transferor, in its sole discretion, in the Extension Notice, the holders of a specified minimum amount of outstanding Class C Certificates shall have elected to approve of the Extension by returning to the Trustee on or before the Election Date the executed form of Election Notice annexed to the Extension Notice delivered to such Class C Certificateholders pursuant to subsection 6.16(a) of the Agreement and (v) the Transferor shall have delivered to the Trustee an Officer's Certificate and an Opinion of Counsel, each to the effect that all conditions precedent in this subparagraph (b) have been satisfied. If, by the close of business on the Election Date, all of the conditions stated in this subsection 6.16(b) of the Agreement have not been satisfied and all such documents delivered to the Trustee pursuant to this subsection 6.16(b) of the Agreement are not in form satisfactory to it, or if the Transferor has notified the Trustee, prior to the Election Date, that the Transferor has exercised its right to withdraw its election of an Extension, no Extension shall occur.
(c) The execution by the required number of Investor Certificateholders of the applicable Election Notice and return thereof to the Trustee by the required date and time, the continued election by the Transferor to extend the Revolving Period at the Election Date, and the compliance with all of the provisions of this Section 6.16, shall evidence an extension or renewal of the obligations represented by the Investor Certificates delivered in exchange therefor, and not a novation or extinguishment of such obligations or a substitution with respect thereto.
(d) To the extent required by applicable laws and regulations, as evidenced by an Opinion of Counsel delivered by the Transferor to the Trustee, the provisions of this Section 6.16 shall or may be modified to comply with all applicable laws and regulations in effect at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rentprepared Extension.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel.
Appears in 1 contract
Samples: Variable Funding Supplement (Federated Department Stores Inc /De/)
Extension. Provided that(a) Tenant shall have the option to extend the initial period constituting the Term under this Lease for two (2) additional periods of five (5) years each (only), provided that Tenant gives Landlord notice of the exercise of each such option on or before the date that is six (6) months prior to the expiration of the then-existing period constituting the Term, and that at the time Tenant elects to exercise the option herein granted each such notice is given and at the time of on the commencement of the Extended Term (as hereinafter defined), extension term concerned:
(i) this Lease is in full force and effect, ;
(ii) no monetary or material non-monetary Tenant Default then exists; and
(iii) Tenant has not assigned this Lease or subleased all or any portion of the Premises under any then-existing sublease (excluding any Non-Consent Transfer), and such extension is not being made in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord connection with or for the purpose of facilitating any such assignment or sublease. Each such extension term shall commence at its sole discretion and may not be used by Tenant as a means to negate 12:01 a.m. on the effectiveness of Tenant’s exercise first day following the expiration of the option set forth herein)immediately preceding period constituting the Term.
(b) During each such extension term, Tenant shall have the option to extend the Term all provisions of this Lease shall apply (but as to this Paragraph 3.2, only with respect to any remaining options to extend, if any), except for any provision relating to the improvement of the Premises by Landlord or at Landlord’s expense, and except that the amount of Basic Monthly Rent for each such extension term shall be negotiated and determined by mutual agreement between the Parties, with the Basic Monthly Rent for the first year of such extension period being the lesser of (i) the then-market rent for premises in Comparable Buildings, based on comparable lease transactions, or (ii) the amount that would result if Basic Monthly Rent payable in the month preceding each such extension term increased in the first year of each such extension term by two and five-tenths percent (2) extended terms of five (5) years each (each, an “Extended Term”2.5%). The Extended Term term “then-market rent” as used in the preceding sentence shall commence immediately following mean the end of the Original Term or the first Extended Terraannual amount, as the case may be. All terms and conditions applicable during the Original Term shall apply projected during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current such extension term, time being of the essence. If Tenant fails to give that a timely Notice to Extend within the time provided abovewilling, this Lease shall automatically expire at the end of the then current termcomparable, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Termnon-equity tenant (excluding assignment and sublease transactions) would pay, and a Parking Fee willing, comparable landlord of a Comparable Building located in the same market as the Building would accept, at arm’s length (without compulsion to agree) for lease extensions or renewals (including what Landlord is and its affiliates are accepting for current lease extension or renewal transactions for the Parking Spaces equal to the fair market parking feesProject), projected as for general office space of the commencement similar rentable square footage, location and quality, but excluding consideration of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Termtenant improvement allowances and lease concessions, if that is required any, then being given by Landlord and its affiliates or the landlords of such similar projects, unless such tenant improvement allowances and lease concessions are then being given by such persons in connection with lease extensions or renewals. If the Parties are able to arrive at fair market rent. Landlord shall notify Tenant agree on the amount of Landlord’s proposed Basic Monthly Rent and Parking Fee for the Extended Term either such extension term within thirty (30) days after Landlord’s receipt by Landlord of Tenant’s Notice notice of extension, the Parties shall promptly enter into an amendment to Extend, (but in no event prior to this Lease reflecting the last date for Tenant to give new Basic Monthly Rent and the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rentnew Expiration Date. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days Parties, after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rentusing their best efforts, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market amount of Basic Monthly Rent for either such extension term within said such thirty (30) day period30)-day period (as evidenced by the execution and delivery of an amendment to this Lease), then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s extend (i.e., Landlord’s and any subsequent option to extend) shall automatically terminate and be of no further force or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counseleffect.
Appears in 1 contract
Samples: Lease (Purple Innovation, Inc.)
Extension. Provided that(a) Tenant shall have the option to extend the initial period constituting the Term under this Lease for two (2) additional periods of seven (7) years each, provided that Tenant gives Landlord notice of the exercise of each such option on or before the date that is twenty-four (24) months prior to the expiration of the then-existing period constituting the Term, and that at the time Tenant elects to exercise the option herein granted each such notice is given and at the time of on the commencement of the Extended Term (as hereinafter defined), extension term concerned:
(i) this Lease is in full force and effect, ;
(ii) no Tenant Default then exists; and
(iii) Tenant has not assigned this Lease or subleased all or any portion of the Premises under any then-existing sublease (excluding any Non-Consent Transfer), and such extension is not being made in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord connection with or for the purpose of facilitating any such assignment or sublease. Each such extension term shall commence at its sole discretion and may not be used by Tenant as a means to negate 12:01 a.m. on the effectiveness of Tenant’s exercise first day following the expiration of the option set forth herein)immediately preceding period constituting the Term.
(b) During each such extension term, Tenant shall have the option to extend the Term all provisions of this Lease shall apply, except for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following any provision relating to the end improvement of the Original Term Premises by Landlord or at Landlord’s expense, and except that the amount of Basic Monthly Rent for each such extension term shall be the amount that would result if Basic Monthly Rent continued to increase each year (including, without limitation, the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during year of each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that such extension term) by three percent (i3%) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, on a compounding basis.
(iic) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its either such option to extend in a timely manner, the Term of this Lease for the Extended Term by delivering the Notice to ExtendParties shall, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit enter into an amendment to this Lease reflecting the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the new Basic Monthly Rent and the Parking Feenew Expiration Date. If Tenant fails to exercise either such option in a timely manner, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the relevant option to select one party’s extend (i.e., Landlord’s and any subsequent option to extend) shall automatically terminate and be of no further force or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counseleffect.
Appears in 1 contract
Samples: Lease Agreement (Vivint Solar, Inc.)
Extension. Provided that, at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant A. Lessee shall have the option options to extend the Term of renew this Lease for two three (23) extended successive additional terms of five (5) years each (each, each an “Extended "Additional Term”). The Extended Term shall commence immediately following ") on the end of the Original Term or the first Extended Terra, as the case may be. All same terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes as are provided herein except that (ia) Tenant Rent for each Additional Term shall be determined in accordance with the provisions of Section 30.C and (b) there shall be no additional option to renew or extend this Lease.
B. Each such option shall be exercised by Lessee by written notice (the "Extension Notice") to Lessor at least six (6) months before the expiration of the original or prior Additional Term. Any termination of this Lease by Lessor in accordance with the terms hereof shall automatically terminate such options without further act by Lessor. It shall be a condition to the exercise of such second and third options that the prior option shall have no further right to extend the been validly exercised.
C. The Rent for each Additional Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and an amount (inthe "FMV Rent") Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord equal to the cost then fair market value of improvements or alterations to comparable space in the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend Kent Valley, Washington area (the “Notice to Extend”)including Kent and Auburn, which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend Washington) for each Extended such Additional Term by giving Landlord a Notice to Extend not later as determined below, but in no event less than twelve (12) months prior to the expiration date of Rent then payable for the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rentLease. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within Within thirty (30) days after Landlord’s of its receipt of Tenant’s the Extension Notice for an Additional Term, Lessor shall deliver to Extend, Lessee notice (but in no event prior to "Lessor's Rental Notice") of Lessor's estimate of the last date FMV Rent for Tenant to give the Premises for the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Additional Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord Lessor and Tenant are unable to reach agreement Lessee cannot agree on the Fair Market FMV Rent within fourteen (14) days of Lessee's receipt of Lessor's Rental Notice (the "Rental Notice Date"), the parties shall, within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rental Notice Date, select a single appraiser who will determine the FMV Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such persona single appraiser, then each party will select an appraiser within said thirty (30) days, and such two (2) appraisers will select a second period of third appraiser within seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees date of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained selection of such counsel.two (2)
Appears in 1 contract
Extension. Provided that(a) Tenant shall have the option to extend the initial period constituting the Term under this Lease for one (1) additional period of five (5) years, provided that Tenant gives Landlord notice of the exercise of each such option on or before the date that is six (6) months prior to the expiration of the then-existing period constituting the Term, and that at the time Tenant elects to exercise the option herein granted each such notice is given and at the time of on the commencement of the Extended Term (as hereinafter defined), extension term concerned:
(i) this Lease is in full force and effect, ;
(ii) no Tenant Default then exists; and
(iii) Tenant has not assigned this Lease or subleased all or any portion of the Premises under any then-existing sublease (excluding any Non-Consent Transfer), and such extension is not being made in default hereunder beyond applicable notice and cure period(sconnection with or for the purpose of facilitating any such assignment or sublease. Each such extension term shall commence at 12:01 a.m. on the first day following the expiration of the immediately preceding period constituting the Term.
(b) During each such extension term, all provisions of this Lease shall apply (which default may be waived but as to this Paragraph 3.3, only with respect to any remaining options to extend, if any), except for any provision relating to the improvement of the Premises by Landlord or at Landlord’s expense. If Tenant exercises such option in a timely manner as provided in this Paragraph 3.3, the Basic Monthly Rent shall be as provided in the definition of “Basic Monthly Rent” and the new Expiration Date shall be extended five (5) years. In the event Tenant has not delivered notice of its sole discretion exercise of an option to extend the Term as provided in Paragraph 3(a), Landlord shall deliver written notice to Tenant and may not Tenant’s right to exercise such option shall terminate and be used by Tenant as a means to negate the effectiveness of no force or effect if notice of Tenant’s exercise of the option set forth herein), Tenant shall have the option is not delivered to extend the Term Landlord within ten (10) days of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant receipt of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counselnotice.
Appears in 1 contract
Samples: Lease Agreement
Extension. Provided that, at it is mutually agreed and understood that if the time Tenant elects to exercise is not in default of any of the option herein granted and terms of the Lease at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have then the option to extend Landlord shall, at the expiration of the Term hereof, upon written request of the Tenant, grant to the Tenant an extension of this Lease for two (2) extended terms a further period of five (5) years each (each, an “the "Extended Term”)") upon the same terms and conditions as contained herein, save as to leasehold inducements and fixturing period, save as to Landlord's work, save as to the rental rate, free rent, parking and storage charges, save as to any further right of extension and in an "as is" condition. Provided always that the Tenant shall have given to the Landlord at least six (6) months and not more than 12 months notice in writing before the expiration of the Term of its desire to have such extension. The rental rate for the Extended Term shall commence immediately following be at the end then current fair market rate at the time of the Original exercise by the Tenant for premises in the Building and as mutually agreed between the Landlord and the Tenant. In the event that the Landlord and the Tenant are unable to agree upon the rental rate for the Extended Term by 90 days prior to the Lease expiry date or the first Extended Terraextension thereof, as the case may be. All terms and conditions applicable during , the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent matter shall be as provided herein, and (in) Tenant shall not be entitled submitted to Tenant’s Construction Allowance or any other contribution arbitration by Landlord notice given by either party to the cost of improvements or alterations to other. Upon such notice being given, the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than twelve (12) months prior to the expiration date of the then current term, time being of the essence. If Tenant fails to give a timely Notice to Extend within the time provided above, this Lease shall automatically expire at the end of the then current term, unless sooner terminated as provided herein. If Tenant exercises its option to extend the Term of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent of the fair market rent for comparable laboratory space in Cambridge, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent dispute shall be determined by arbitration as hereinafter provided. Within seven (7) the award of 3 arbitrators, or by a majority of them, one to be named by the Landlord and one by the Tenant within 30 days of the giving of such notice, and the 3rd to be selected by these 2 arbitrators within 7 days after both have been nominated. If either the exchange of estimatesLandlord or the Tenant shall neglect or refuse to name its arbitrator in the time specified or to proceed with the arbitration, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen arbitrator named by the other party shall be proceed with the sole arbitrator. Once arbitration, and the award of such arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them the Landlord and the Tenant. The arbitrators shall have all the power given by the Arbitration Act of Ontario and may at any time proceed in such manner as they see fit on such notice as they deem reasonable in the absence of either party, if such party fails to attend. Each party shall pay its own costs and shall share equally the costs of arbitration. The award and determination of the arbitrators shall be final and binding upon both parties hereto and each party agrees not to appeal any such award or determination. The rental shall not be less than the Monthly Minimum Rent payable during the last year of the Term. If the award of the arbitrators is not given before the commencement date of the Extended Term, then the Tenant shall continue to pay its existing Rent, which shall be adjusted forthwith after the award of the arbitrators has become final and Parking Fee for binding, to be calculated from the commencement date of the Extended Term. In determining Interest at the Fair Market rate set out herein shall be calculated monthly on the difference between the Minimum Rent with respect to paid by the Monthly Rent Tenant and the Parking Fee, actual amount awarded by the arbitrator arbitrators and shall not be required to select paid forthwith upon demand when the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Feearbitrators' decision has been made. The costs extension of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, lease form shall be borne prepared by the party that retained such counselLandlord at the Tenant's cost.
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Extension. Provided thatSublessor may, at the time Tenant elects to exercise the option herein granted and at the time of the commencement of the Extended Term (as hereinafter defined), (i) this Lease is in full force and effect, (ii) Tenant is not in default hereunder beyond applicable notice and cure period(s) (which default may be waived by Landlord at its sole discretion and may not be used by Tenant as a means election, give notice to negate the effectiveness of Tenant’s exercise of the option set forth herein), Tenant shall have the option to extend the Term of this Lease for two (2) extended terms of five (5) years each (each, an “Extended Term”). The Extended Term shall commence immediately following the end of the Original Term or the first Extended Terra, as the case may be. All terms and conditions applicable during the Original Term shall apply during each Extended Term including without limitation the obligation to pay Operating Expenses and Taxes except that (i) Tenant shall have no further right to extend the Term beyond the second Extended Term hereinabove provided, (ii) Monthly Rent shall be as provided herein, and (in) Tenant shall not be entitled to Tenant’s Construction Allowance or any other contribution by Landlord to the cost of improvements or alterations to the Premises. Tenant shall exercise its option to extend this Lease for the Extended Term by giving Landlord written notice of its election to extend (the “Notice to Extend”), which notice shall apply to the entire Premises and shall be irrevocable. Tenant may exercise its option to extend for each Extended Term by giving Landlord a Notice to Extend not later than Sublessee at least twelve (12) months prior to the expiration date Expiration Date, of Sublessor's good faith determination that all or a substantial portion of the then current termSubleased Premises is or will be needed by Sublessor within the two (2) years following the Expiration Date for actual occupancy by Sublessor or one or more of its affiliates. Unless Sublessor shall give timely such notice, Sublessee shall have the option, by notice to Sublessor at least nine (9) months' prior to the Expiration Date, to extend the Term of this Sublease for one (1) period of two (2) years. If Sublessee fails to give timely such notice of extension, Sublessee's extension option shall be conclusively deemed waived and of no further force or effect, time being of the essence. If Tenant fails Said extension option is further subject to give the conditions that Sublessee shall not then (x) have assigned this Sublease or sublet more than twenty-five (25%) percent of the Subleased Premises other than a timely Notice permitted assignment pursuant to Extend within Paragraph 16 (3) or (y) be in default under this Sublease beyond such grace or cure period, if any, as may be applicable to such default. The rate of Fixed Rent payable by Sublessee during such two-year extension period shall be the time provided above, this Lease shall automatically expire at higher of (i) the end of Fixed Refit and Additional Rent payable during the then current term, unless sooner terminated as provided herein. If Tenant exercises its option lease year immediately proceeding such two-year extension period or (ii) Fixed Rent determined pursuant to extend the Term method for determining "Base Rent" set forth in subsection (c) (but not subsection (d)) of this Lease for the Extended Term by delivering the Notice to Extend, Tenant covenants to pay to Landlord, during the Extended Term, Monthly Rent equal to 95 percent Section 2.3 of the fair market rent for comparable laboratory space in CambridgeLease, Massachusetts, projected as of the commencement of the Extended Term, and a Parking Fee for the Parking Spaces equal to the fair market parking fees, projected as of the commencement of the Extended Term, in each case also referred to below collectively as “Fair Market Rent.” The computation can include appropriate annual increases during each year of the Extended Term, if except that is required to arrive at fair market rent. Landlord shall notify Tenant of Landlord’s proposed Monthly Rent and Parking Fee for the Extended Term within thirty (30) days after Landlord’s receipt of Tenant’s Notice to Extend, (but in no event prior to the last date for Tenant to give the applicable Notice to Extend). Promptly after Landlord gives Tenant Landlord’s proposal for Fair Market Rent with respect to the Extended Term, Landlord and Tenant shall commence negotiations to agree upon the Fair Market Rent. If Landlord and Tenant are unable to reach agreement on the Fair Market Rent within thirty (30) days after the date on which Landlord gives Tenant Landlord’s proposal for Fair Market Rent, then the Fair Market Rent shall be determined as provided below. If Landlord and Tenant are unable to agree on the Fair Market Rent within said thirty (30) day period, then within five (5) days thereafter, Landlord and Tenant shall each simultaneously submit to the other in a sealed envelope its good faith estimate of the Fair Market Rent. If the higher of such estimates is not more than one hundred five percent (105%) of the lower of such estimates, then the Fair Market Rent shall be the average of the two estimates. If the matter is not resolved by the exchange of estimates, then Fair Market Rent shall be determined by arbitration as hereinafter provided. Within seven (7) days after the exchange of estimates, the parties shall select, as an arbitrator, a mutually acceptable member of the American Society of Real Estate Counselors (“ASREC”), or a successor organization to ASREC. If the parties cannot agree on such person, then within a second period of seven (7) days, each shall select a member of ASREC and within a third period of seven (7) days, the two appointed persons shall select a third member of ASREC and the third person shall be the arbitrator. If one party shall fail to make such appointment within said second seven (7) day period, then the person chosen by the other party shall be the sole arbitrator. Once the arbitrator has been selected as provided for above, then, as soon thereafter as practicable, but in any case within fourteen (14) days after his or her appointment, the arbitrator shall determine the Fair Market Rent by selecting either the Landlord’s estimate of Fair Market Rent or the Tenant’s estimate of Fair Market Rent. There shall be no discovery or similar proceedings. The arbitrator’s decision as to which estimate of Fair Market Rent shall be the Fair Market Rent for the Extended Term shall be rendered in writing to both Landlord and Tenant and shall be final and binding upon them and shall be the Monthly Rent and Parking Fee for the Extended Term. In determining the Fair Market Rent with respect to the Monthly Rent and the Parking Fee, the arbitrator shall not be required to select the same party’s estimate of Fair Market Rent for both the Monthly Rent and the Parking Fee, but shall have the option to select one party’s (i.e., Landlord’s or Tenant’s) estimate of Fair Market Rent with respect to the Monthly Rent and the other party’s estimate of Fair Market Rent with respect to the Parking Fee. The costs of the arbitrator will be equally divided between Landlord and Tenant. Any fees of any counsel engaged by Landlord or Tenant, however, shall be borne by the party that retained such counsel."
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Samples: Sublease Agreement (Netegrity Inc)
