Option to Extend Lease Term. At the expiration of the original Lease Term, Tenant may extend this Lease as to the entire Premises or a portion of the Premises for two (2) extended terms of five (5) years each (each an “Extended Term”) by giving Landlord written notice (the “Option Notice”) of its intention to do so not later than twelve (12) months prior to the expiration of the original Lease Term, and thereafter twelve (12) months prior to the expiration of the applicable Extended Term; provided, however, that Tenant is not in material default beyond any applicable notice and cure period under the Lease on the date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall set forth Tenant’s election to extend the Lease for all or a portion of the Premises. If Tenant elects to extend the Lease for only a portion of the Premises, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s right to extend the Lease Term provided herein is personal to Tenant and may not be assigned or otherwise transferred except in connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate. The Extended Term shall be upon all of the terms and conditions of this Lease, except that the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental: (a) any right to rent-free possession; (b) any right to further extension of the Lease Term beyond the Extended Terms set forth herein above; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term shall be equal to ninety-five (95%) of the Base Rent component of the “Fair Market Rental” and one hundred percent (100%) of the economic concessions, including without limitation, free rent, improvement allowance, base year and other monetary concessions, component of the Fair Market Rental for the Premises, as determined by as follows: (a) Concurrent with Tenant’s delivery of each Option Notice, Tenant shall provide Landlord with written notice of its determination of Fair Market Rental for the Premises (“Tenant’s Determination of FMR”). Within thirty (30) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in good faith in an effort to agree upon the Fair Market Rental within thirty (30) days after Landlord delivers the Notice of Rejection (“Negotiation Period”). (b) If the parties fail to agree on the Fair Market Rental for such Extended Term during the Negotiation Period, then the Fair Market Rental shall be established as set forth below. Within fifteen (15) days following expiration of the Negotiation Period, Landlord and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner, and shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental shall be binding upon the parties, shall not be subject to any right of appeal and shall constitute the Rent payable by Tenant during the Extended Term. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of the Extended Term, Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment of the new Fair Market Rental.

Appears in 2 contracts

Samples: Office Lease (Ziprecruiter, Inc.), Office Lease (Ziprecruiter, Inc.)

Option to Extend Lease Term. At the expiration of the original ~~Lease~~ Term, Tenant may extend this Lease ~~as to the entire Premises or a portion of the Premises~~ for two (2) extended terms of five (5) years each (each an “~~Extended~~ Option Term”) by giving Landlord written notice ~~(the “Option Notice”)~~ of its intention to do so not later than twelve (12) months prior to the expiration of the original Lease Term, and thereafter twelve (12) months prior to the expiration of the applicable ~~Extended~~ Option Term; provided, however, that Tenant is not in material default beyond any applicable ~~notice and~~ cure period under the Lease on the date of giving such notice or on the date of commencement of such ~~Extended Term. The~~ Option Notice shall set forth Tenant’s election to extend the Lease for all or a portion of the Premises. If Tenant elects to extend the Lease for only a portion of the Premises, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the ~~entire~~ Lease shall result in automatic termination of this option. Tenant’s right to extend the Lease ~~Term~~ term provided herein is personal to Tenant and may not be assigned or otherwise ~~transferred except in connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate~~transferred. ~~The Extended~~ Each Option Term shall be upon all of the terms and conditions of this Lease, except that the following rights of Tenant during the original Term of this Lease ~~Term~~ shall not apply during such ~~Extended Term unless granted as part of the Fair Market Rental~~Option Terms: (a) any right to rent-free possession; (b) any right to further extension of the term of the Lease ~~Term~~ beyond the ~~Extended~~ Option Terms set forth herein above; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; and (e) any right to terminate the ~~Extended~~ Option Terms early. In no event shall the Base Rent for any Option Term ~~early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for~~ be less than the ~~Building; and (h)~~ Base Rent payable by Tenant during the ~~right to~~ full month immediately preceding the ~~continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses~~ Option Term. The Base Rent for the first twelve (12) months of ~~each new Extended Term shall be~~ the ~~actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended~~ initial Option Term shall be equal to ~~ninety-five (95%) of~~ the Base Rent component of the “Fair Market Rental” and one hundred percent (100%) of the economic concessions, including without limitation, free rent, improvement allowance, base year and other monetary concessions, component of the Fair Market Rental for the Premises, as determined by as follows: (a) Concurrent with Tenant’s delivery of each Option Notice, Tenant shall provide Landlord with written notice of its determination of Fair Market Rental for the Premises (“Tenant’s Determination of FMR”). Within thirty (30) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in good faith in an effort to agree upon the Fair Market Rental within thirty (30) days after Landlord delivers the Notice of Rejection (“Negotiation Period”). (b) If the parties fail to agree on the Fair Market Rental for such Extended Term during the ~~Negotiation Period, then~~ period immediately preceding the Fair Market Rental shall be established as set forth below. Within fifteen (15) days following expiration of the Negotiation Period, Landlord and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any mannerinitial Option Term, and shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental shall be binding upon the parties, shall not be subject to any right of appeal and shall constitute the Rent payable by Tenant during the Extended Term. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of the Extended Term, Tenant shall continue to pay thereafter the Base Rent ~~in effect as of~~ shall increase by six percent (6%) every twenty-four (24) months during the ~~end of the prior term; when the Fair Market Rental has been established, the new Base Rent~~ initial Option Term and ~~concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended~~ any subsequent Option Term~~, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment of the new Fair Market Rental~~.

Appears in 1 contract

Samples: Office Lease (Insys Therapeutics, Inc.)

Option to Extend Lease Term. At a. Landlord hereby grants to Tenant one (1) option (“Option”) to extend the Extension Term for a period of three (3) years (“Option Term”) immediately following the expiration of the ~~original Lease~~ Extension Term. The Option shall be exercised, ~~Tenant may extend this Lease as to the entire Premises or a portion of the Premises for two (2) extended terms of five (5) years each (each an “Extended Term”)~~ if at all, by ~~giving Landlord~~ written notice (~~the~~ “Option Notice”) ~~of its intention~~ delivered by Tenant to ~~do so not~~ Landlord no later than ~~twelve~~ nine (129) full months prior to the expiration of the ~~original Lease~~ Extension Term. Further, the Option shall not be deemed to be properly exercised if, as of the date of the Option Notice or at the end of the Extension Term, ~~and thereafter twelve~~ Tenant (12i) ~~months prior to the expiration of the applicable Extended Term; provided, however, that Tenant~~ is ~~not~~ in ~~material~~ uncured default ~~beyond any applicable notice and cure period~~ under the Lease ~~on the date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall set forth Tenant’s election to extend~~ beyond any cure period, (ii) has assigned the Lease ~~for all~~ or ~~a portion~~ its interest therein, or (iii) has sublet more than fifty percent (50%) of the Premises. If Provided Tenant ~~elects to extend~~ has properly and timely exercised the ~~Lease for only a portion of the Premises~~Option, the ~~portion~~ Extension Term shall be extended by the Option Term, and all terms, covenants and conditions of ~~the Premises for which Tenant elects not to extend~~ the Lease shall ~~be: (i) either located entirely on one floor of~~ remain unmodified and in full force and effect, except for the ~~Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv)~~ Annual Base Rent, which shall be ~~in a readily marketable and leasable location. Landlord shall be responsible for any and all costs~~ adjusted to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s right to extend the Lease Term provided herein is personal to Tenant and may not be assigned or otherwise transferred except in connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate. The Extended Term shall be upon all of the terms and conditions of this Lease, except that the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental: (a) any right to rent-free possession; (b) any right to further extension of the Lease Term beyond the Extended Terms set forth herein above; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term shall be equal to ninety-five (95%) of the Base Rent component of the “Fair Market ~~Rental~~Rental Value” and one hundred percent (100%) of the economic concessions, including without limitation, free rent, improvement allowance, base year and other monetary concessions, component of the Fair Market Rental for the Premises, ~~as determined by as follows: (a) Concurrent with Tenant’s delivery of each Option Notice~~but shall not be less than the then current Annual Base Rent. As used herein, ~~Tenant shall provide Landlord with written notice of its determination of~~ “Fair Market Rental ~~for~~ Value” shall mean the ~~Premises~~ projected prevailing rental rate (~~“Tenant’s Determination of FMR”). Within thirty (30~~but not inducements or other concessions) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in good faith in an effort to agree upon the Fair Market Rental within thirty (30) days after Landlord delivers the Notice of Rejection (“Negotiation Period”). (b) If the parties fail to agree on the Fair Market Rental for such Extended Term during the Negotiation Period, then the Fair Market Rental shall be established as ~~set forth below. Within fifteen (15) days following expiration~~ of the Negotiation Period, Landlord and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average first day of the ~~two (2) determinations. If Landlord and Tenant cannot agree upon~~ Option Term for similarly improved premises situated in a ~~broker~~similar building in a similar Northwest suburban market area, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR within or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner, and shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental shall be binding upon the parties, shall not be subject to any right of appeal and shall constitute the Rent payable by Tenant during the Extended Term. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities close to the Building ~~(“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises)~~ with similar ~~terms and conditions~~loading, clear height, and ~~involving the use~~ other attributes of the ~~premises for similar purposes allowed under~~ Building. No additional options to extend the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison Option Term shall be ~~comparable~~ granted or allowed unless specifically agreed to in ~~size, age, quality~~ writing between Landlord and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the brokerTenant. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of the Extended Term, Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment of the new Fair Market Rental.

Appears in 1 contract

Samples: Lease (CVRx, Inc.)

Option to Extend Lease Term. At Tenant shall have two (2) option(s), which said option(s) shall not be severed from this Lease or separately assigned, mortgaged or transferred, at its election, to extend the Lease Term as described in “Option to Extend the Lease Term” in Article 1.1 (with each such option period being referred to as an “Extension Period”), with each Extension Period commencing upon the expiration of the ~~original~~ then current Lease Term, provided that (a) Landlord shall receive written notice from Tenant ~~may extend this Lease as to the entire Premises or a portion~~ of the ~~Premises for two (2) extended terms of five (5) years each (each an “Extended Term”) by giving Landlord written notice (the “Option Notice”)~~ exercise of its ~~intention to do so not later than~~ election at least twelve (12) months prior to the expiration of the ~~original~~ then current Lease ~~Term, and thereafter twelve~~ Term but no sooner than fifteen (1215) months prior to the expiration of the ~~applicable Extended~~ then current Lease Term; ~~provided, however, that Tenant is not in material default beyond any applicable~~ (b) no Event of Default shall exist at the time of Landlord’s receipt of such notice and ~~cure period under~~ at the ~~Lease on the date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall set forth Tenant’s election to extend the Lease for all or a portion~~ expiration of the ~~Premises. If~~ then current Lease Term; and (c) the original Tenant ~~elects~~ named herein or any transferee pursuant to ~~extend the Lease for only a portion~~ an assignment permitted hereunder or approved by Landlord is itself occupying at least fifty percent (50%) of the ~~Premises, the portion~~ rentable area of the Premises ~~for which Tenant elects not to extend~~ both at the time of giving the notice. If Landlord shall receive notice of the exercise of the election in the manner and within the time provided aforesaid, the Lease Term shall ~~be: (i) either located entirely on one floor~~ be extended upon the receipt of the ~~Premises~~ notice without the requirement of any action on the part of Landlord or ~~located on one entire floor~~ Tenant, except as may be required in order CONFIDENTIAL TREATMENT REQUESTED UNDER C.F.R. SECTIONS 200.80(b)(4), 200.83 AND 230.406. [****] INDICATES OMITTED MATERIAL THAT IS THE SUBJECT OF A CONFIDENTIAL TREATMENT REQUEST FILED SEPARATELY WITH THE COMMISSION. THE OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE COMMISSION. to determine Base Rent as hereinafter provided. Except for the amount of Base Rent (which is to be determined as hereinafter provided), all the terms, covenants, conditions, provisions and ~~a portion of~~ agreements in the ~~other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv)~~ Lease contained shall be ~~in a readily marketable and leasable location. Landlord~~ applicable to the Extension Period, except that there shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s right no further options to extend the Lease Term ~~provided herein is personal to Tenant and may not be assigned or otherwise transferred except in connection with a permitted assignment of this Lease, including to a~~ after Tenant’s ~~Affiliate. The Extended Term shall be upon all~~ exercise of the ~~terms and conditions~~ second option hereunder, nor shall Landlord be obligated to make or pay for any improvements to the Premises nor pay any inducement payments of ~~this Lease~~any kind or nature. Landlord hereby reserves the right, ~~except that the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental:~~ exercisable by Landlord in its sole discretion, to waive (in writing) any condition precedent set forth in clauses (a~~) any right to rent-free possession;~~ ), (b) ~~any right to further extension of the Lease Term beyond the Extended Terms set forth herein above;~~ or (c) ~~any right~~ above. Time is of the essence with respect to ~~continue to pay~~ the ~~same Base Rent; (d) any right to additional~~ exercise of the options contained herein. Tenant ~~Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h)~~ shall not have the right to give any notice exercising such options after the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term shall be equal to ninety-five (95%) of the Base Rent component of the “Fair Market Rental” and one hundred percent (100%) of the economic concessions, including without limitation, free rent, improvement allowance, base year and other monetary concessions, component of the Fair Market Rental for the Premises, as determined by as follows: (a) Concurrent with Tenant’s delivery of each Option Notice, Tenant shall provide Landlord with written notice of its determination of Fair Market Rental for the Premises (“Tenant’s Determination of FMR”). Within thirty (30) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in good faith in an effort to agree upon the Fair Market Rental within thirty (30) days after Landlord delivers the Notice of Rejection (“Negotiation Period”). (b) If the parties fail to agree on the Fair Market Rental for such Extended Term during the Negotiation Period, then the Fair Market Rental shall be established as set forth below. Within fifteen (15) days following expiration of the Negotiation Period, Landlord and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure applicable time limitation set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any mannerherein, and ~~shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental~~ any notice given after such time limitation purporting to exercise any such option shall be ~~binding upon the parties, shall not be subject to any right~~ void and of ~~appeal and shall constitute the Rent payable by Tenant during the Extended Term~~no force or effect. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of the Extended Term, Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment of the new Fair Market Rental.

Appears in 1 contract

Samples: Lease Agreement (Raindance Technologies Inc)

Option to Extend Lease Term. ~~At the expiration of the original Lease Term~~A. Provided Tenant is not in default hereunder, Tenant ~~may~~ shall have the option to extend the term of this Lease ~~as to~~ (hereinafter, the ~~entire Premises or a portion of the Premises~~ "Option")) for two (2) ~~extended terms~~ consecutive periods of five (5) years each (each referred to as an “"Extended Term”") upon the same terms and conditions, except for Basic Annual Rent and upon the following further terms and conditions. B. Tenant shall exercise said Option only by giving ~~Landlord~~ written notice ~~(the “Option Notice”) of its intention~~ to ~~do so~~ Landlord not later than twelve (12) months prior to the ~~expiration~~ Expiration Date ("Option Notice"). Thereafter, Landlord shall advise Tenant, within ten (10) business days, of the ~~original Lease Term~~Basic Annual Rent for the Option Period, and ~~thereafter twelve~~ Tenant shall then have ten (1210) ~~months prior~~ business days within which to ~~the expiration~~ revoke in writing its exercise of the applicable Extended Term; provided, however, that Tenant is not in material default beyond any applicable notice and cure period under the Lease on the date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall set forth Tenant’s election to extend the Lease for all or a portion of the Premises. If Tenant elects to extend the Lease for only a portion of the Premises, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) Option. C. Basic Annual Rent shall be 95% of fair rental value, but in ~~a readily marketable and leasable location~~no event less than 1.08 multiplied by the then current Basic Annual Rent. ~~Landlord~~ In the event that the parties cannot agree on what the fair rental value shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s right to extend the Lease Term provided herein is personal to Tenant and may not be assigned or otherwise transferred except in connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate. The Extended Term shall be upon all of the terms and conditions of this Lease, except that the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental: (a) any right to rent-free possession; (b) any right to further extension of the Lease Term beyond the Extended Terms set forth herein above; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term shall be equal to ninety-five (95%) of the Base Rent component of the “Fair Market Rental” and one hundred percent (100%) of the economic concessions, including without limitation, free rent, improvement allowance, base year and other monetary concessions, component of the Fair Market Rental for the Premises, as determined by as follows: (a) Concurrent with Tenant’s delivery of each Option Notice, Tenant shall provide Landlord with written notice of its determination of Fair Market Rental for the Premises (“Tenant’s Determination of FMR”). Within thirty (30) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in good faith in an effort to agree upon the Fair Market Rental within thirty (30) days ~~after Landlord delivers~~ following the ~~Notice of Rejection (“Negotiation Period”). (b) If~~ Option Notice, the ~~parties fail to agree on the Fair Market Rental for such Extended Term during the Negotiation Period, then the Fair Market Rental~~ matter shall be ~~established as set forth below. Within fifteen (15) days following expiration~~ determined by arbitration at the election of the Negotiation Period, Landlord and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner, and shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental shall be binding upon the parties, shall not be subject to any right of appeal and shall constitute the Rent payable by Tenant during the Extended Term. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. . The arbitration proceedings shall be completed and the determination of such Basic Annual Rent made not later than thirty (e30) ~~In the event that the Fair Market Rental is not established before~~ days prior to the commencement of the Extended Term. In the event that Tenant preliminarily exercises its Option, ~~Tenant shall continue to pay~~ the ~~Base Rent in effect as~~ costs of the ~~end of~~ resulting arbitration shall be shared equally between the ~~prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted~~ parties. Any arbitration conducted pursuant to the ~~Fair Market Rental~~ provisions hereof shall be ~~retroactively effective as~~ conducted by an independent appraiser selected by the parties. If the parties cannot agree on such person, then each party shall select one appraiser and the two persons so selected shall appoint a third appraiser. The appraisers shall be members of the ~~beginning~~ American Institute of Real Estate Appraisers or its successor organization, or if neither is in existence, then persons recognized as professional real estate appraisers within the Indianapolis metropolitan area. The decision of a majority of such appraisers shall be recognized as the new Basic Annual Rent associated with the Extended Term, and the parties agree to be bound by such determination. D. It is understood and agreed that this Option is personal to Tenant ~~shall pay Landlord~~ and is not transferable; in the event of any ~~deficiency~~ assignment or ~~Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment~~ subleasing of any or all of the ~~new Fair Market Rental~~Leased Premises, said Option shall be null and void. Notwithstanding the foregoing, in the event that Tenant subleases or assigns any part of this Lease to an affiliate of Tenant or to any successor by merger, consolidation or by operation of law, the Option shall continue in full force and effect exercisable by any successor sublessor or assignee under such circumstances.

Appears in 1 contract

Samples: Office Lease (Idg Books Worldwide Inc)

Option to Extend Lease Term. At Tenant shall have two (2) option(s), which said option(s) shall not be severed from this Lease or separately assigned, mortgaged or transferred, at its election, to extend the Lease Term as described in “Option to Extend the Lease Term” in Article 1.1 (with each such option period being referred to as an “Extension Period”), with each Extension Period commencing upon the expiration of the ~~original~~ then current Lease Term, provided that (a) Landlord shall receive written notice from Tenant ~~may extend this Lease as to the entire Premises or a portion~~ of the ~~Premises for two (2) extended terms of five (5) years each (each an “Extended Term”) by giving Landlord written notice (the “Option Notice”)~~ exercise of its ~~intention to do so not later than~~ election at least twelve (12) months prior to the expiration of the ~~original~~ then current Lease ~~Term, and thereafter twelve~~ Term but no sooner than fifteen (1215) months prior to the expiration of the ~~applicable Extended~~ then current Lease Term; ~~provided, however, that Tenant is not in material default beyond any applicable~~ (b) no Event of Default shall exist at the time of Landlord’s receipt of such notice and ~~cure period under~~ at the ~~Lease on the date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall set forth Tenant’s election to extend the Lease for all or a portion~~ expiration of the ~~Premises. If~~ then current Lease Term; and (c) the original Tenant ~~elects~~ named herein or any transferee pursuant to ~~extend the Lease for only a portion~~ an assignment permitted hereunder or approved by Landlord is itself occupying at least fifty percent (50%) of the ~~Premises, the portion~~ rentable area of the Premises ~~for which Tenant elects not to extend~~ both at the time of giving the notice. If Landlord shall receive notice of the exercise of the election in the manner and within the time provided aforesaid, the Lease Term shall ~~be: (i) either located entirely on one floor~~ be extended upon the receipt of the ~~Premises~~ notice without the requirement of any action on the part of Landlord or ~~located on one entire floor~~ Tenant, except as may be required in order to determine Base Rent as hereinafter provided. Except for the amount of Base Rent (which is to be determined as hereinafter provided), all the terms, covenants, conditions, provisions and ~~a portion of~~ agreements in the ~~other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv)~~ Lease contained shall be ~~in a readily marketable and leasable location. Landlord~~ applicable to the Extension Period, except that there shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s right no further options to extend the Lease Term ~~provided herein is personal to Tenant and may not be assigned or otherwise transferred except in connection with a permitted assignment of this Lease, including to a~~ after Tenant’s ~~Affiliate. The Extended Term shall be upon all~~ exercise of the ~~terms and conditions~~ second option hereunder, nor shall Landlord be obligated to make or pay for any improvements to the Premises nor pay any inducement payments of ~~this Lease~~any kind or nature. Landlord hereby reserves the right, ~~except that the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental:~~ exercisable by Landlord in its sole discretion, to waive (in writing) any condition precedent set forth in clauses (a~~) any right to rent-free possession;~~ ), (b) ~~any right to further extension of the Lease Term beyond the Extended Terms set forth herein above;~~ or (c) ~~any right~~ above. Time is of the essence with respect to ~~continue to pay~~ the ~~same Base Rent; (d) any right to additional~~ exercise of the options contained herein. Tenant ~~Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h)~~ shall not have the right to give any notice exercising such options after the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term shall be equal to ninety-five (95%) of the Base Rent component of the “Fair Market Rental” and one hundred percent (100%) of the economic concessions, including without limitation, free rent, improvement allowance, base year and other monetary concessions, component of the Fair Market Rental for the Premises, as determined by as follows: (a) Concurrent with Tenant’s delivery of each Option Notice, Tenant shall provide Landlord with written notice of its determination of Fair Market Rental for the Premises (“Tenant’s Determination of FMR”). Within thirty (30) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in good faith in an effort to agree upon the Fair Market Rental within thirty (30) days after Landlord delivers the Notice of Rejection (“Negotiation Period”). (b) If the parties fail to agree on the Fair Market Rental for such Extended Term during the Negotiation Period, then the Fair Market Rental shall be established as set forth below. Within fifteen (15) days following expiration of the Negotiation Period, Landlord and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure applicable time limitation set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any mannerherein, and ~~shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental~~ any notice given after such time limitation purporting to exercise any such option shall be ~~binding upon the parties, shall not be subject to any right~~ void and of ~~appeal and shall constitute the Rent payable by Tenant during the Extended Term~~no force or effect. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of the Extended Term, Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment of the new Fair Market Rental.

Appears in 1 contract

Samples: Lease Agreement (Raindance Technologies Inc)

Option to Extend Lease Term. At Tenant shall have the right and option, which said option shall not be severed from this Lease or separately assigned, mortgaged or transferred, at its election, to extend the Original Lease Term for one (1) additional period of three (3) years (the “Extension Period”) commencing upon the expiration of the ~~original~~ Original Lease Term, provided that (a) Landlord shall receive written notice from Tenant ~~may extend this Lease as to the entire Premises or a portion~~ of the ~~Premises for two (2) extended terms of five (5) years each (each an “Extended Term”) by giving Landlord written notice (the “Option Notice”)~~ exercise of its ~~intention to do so not later than twelve~~ election at least six (126) months prior to the expiration of the ~~original~~ Original Lease Term, (b) no Event of Default shall exist at the time of Landlord’s receipt of such notice and ~~thereafter twelve~~ at the expiration of the Original Lease Term; and (12c) ~~months prior~~ the original Tenant named herein or any Affiliate is itself occupying the entire Premises both at the time of giving the applicable notice and at the commencement of the Extension Period. If Landlord shall receive notice of the exercise of the election in the manner and within the time provided aforesaid, the Original Lease Term shall be extended upon the receipt of the notice without the requirement of any action on the part of Landlord or Tenant. Except for the amount of Base Rent (which is to be determined as hereinafter provided), all the terms, covenants, conditions, provisions and agreements in the Lease contained shall be applicable to the Extension Period, except that there shall be no further options to extend the Lease Term nor shall Landlord be obligated to make or pay for any improvements to the Premises nor pay any inducement payments of any kind or nature. Landlord hereby reserves the right, exercisable by Landlord in its sole discretion, to waive (in writing) any condition precedent set forth in clauses (a), (b) or (c) above. Time is of the essence with respect to the exercise of the option contained herein. Tenant shall not have the right to give any notice exercising such option after the expiration of the applicable Extended Term; provided, however, that Tenant is not in material default beyond any applicable notice and cure period under the Lease on the date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall time limitation set forth ~~Tenant’s election~~ herein, and any notice given after such time limitation purporting to extend the Lease for all or a portion of the Premises. If Tenant elects to extend the Lease for only a portion of the Premises, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) exercise such option shall be ~~in a readily marketable~~ void and ~~leasable location. Landlord shall be responsible for any and all costs to separate the portion~~ of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s right to extend the Lease Term provided herein is personal to Tenant and may not be assigned no force or otherwise transferred except in connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate. The Extended Term shall be upon all of the terms and conditions of this Lease, except that the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental: (a) any right to rent-free possession; (b) any right to further extension of the Lease Term beyond the Extended Terms set forth herein above; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term shall be equal to ninety-five (95%) of the Base Rent component of the “Fair Market Rental” and one hundred percent (100%) of the economic concessions, including without limitation, free rent, improvement allowance, base year and other monetary concessions, component of the Fair Market Rental for the Premises, as determined by as follows: (a) Concurrent with Tenant’s delivery of each Option Notice, Tenant shall provide Landlord with written notice of its determination of Fair Market Rental for the Premises (“Tenant’s Determination of FMR”). Within thirty (30) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in good faith in an effort to agree upon the Fair Market Rental within thirty (30) days after Landlord delivers the Notice of Rejection (“Negotiation Period”)effect. (b) If the parties fail to agree on the Fair Market Rental for such Extended Term during the Negotiation Period, then the Fair Market Rental shall be established as set forth below. Within fifteen (15) days following expiration of the Negotiation Period, Landlord and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner, and shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental shall be binding upon the parties, shall not be subject to any right of appeal and shall constitute the Rent payable by Tenant during the Extended Term. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of the Extended Term, Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment of the new Fair Market Rental.

Appears in 1 contract

Samples: Lease Agreement (FusionStorm Global, Inc.)

Option to Extend Lease Term. At Tenant shall have one (1) right and option, which said option shall not be severed from this Lease or separately assigned, mortgaged or transferred, at its election, to extend the Original Lease Term for an additional period of three (3) years (the “Extension Period’) commencing upon the expiration of the ~~original~~ Original Lease Term, provided that (a) Landlord shall receive written notice from Tenant ~~may extend this Lease as~~ of the exercise of its election at least nine (9) months prior to the ~~entire Premises or a portion~~ expiration of the ~~Premises for two (2) extended terms of five (5) years each (each an “Extended Term”) by giving Landlord written notice (the “Option Notice”) of its intention to do so not later~~ Original Lease Term but no sooner than twelve (12) months prior to the expiration of the ~~original~~ Original Lease Term, (b) no Event of Default shall exist at the time of Landlord’s receipt of such notice and ~~thereafter twelve~~ at the expiration of the Original Lease Term; and (12c) ~~months prior~~ the original Tenant named herein or any Affiliate is itself occupying the entire Premises both at the time of giving the applicable notice and at the commencement of the Extension Period. If Landlord shall receive notice of the exercise of the election in the manner and within the time provided aforesaid, the Original Lease Term shall be extended upon the receipt of the notice without the requirement of any action on the part of Landlord or Tenant, except as may be required in order to determine Base Rent as hereinafter provided. Except for the amount of Base Rent (which is to be determined as hereinafter provided), all the terms, covenants, conditions, provisions and agreements in the Lease contained shall be applicable to the Extension Period, except that there shall be no further options to extend the Lease Term nor shall Landlord be obligated to make or pay for any improvements to the Premises nor pay any inducement payments of any kind or nature. Landlord hereby reserves the right, exercisable by Landlord in its sole discretion, to waive (in writing) any condition precedent set forth in clauses (a), (b) or (c) above. Time is of the essence with respect to the exercise of the option contained herein. Tenant shall not have the right to give any notice exercising such option after the expiration of the applicable Extended Term; provided, however, that Tenant is not in material default beyond any applicable notice and cure period under the Lease on the date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall time limitation set forth ~~Tenant’s election~~ herein, and any notice given after such time limitation purporting to extend the Lease for all or a portion of the Premises. If Tenant elects to extend the Lease for only a portion of the Premises, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) exercise such option shall be void and of no force or effect, unless Landlord has waived in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s right to extend the Lease Term provided herein is personal to Tenant and may not be assigned or otherwise transferred except in connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate. The Extended Term shall be upon all of the terms and conditions of this Lease, except that the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental: writing clause (a) ~~any right to rent-free possession; (b) any right to further extension of the Lease Term beyond the Extended Terms set forth herein~~ above; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term shall be equal to ninety-five (95%) of the Base Rent component of the “Fair Market Rental” and one hundred percent (100%) of the economic concessions, including without limitation, free rent, improvement allowance, base year and other monetary concessions, component of the Fair Market Rental for the Premises, as determined by as follows: (a) Concurrent with Tenant’s delivery of each Option Notice, Tenant shall provide Landlord with written notice of its determination of Fair Market Rental for the Premises (“Tenant’s Determination of FMR”). Within thirty (30) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in good faith in an effort to agree upon the Fair Market Rental within thirty (30) days after Landlord delivers the Notice of Rejection (“Negotiation Period”). (b) If the parties fail to agree on the Fair Market Rental for such Extended Term during the Negotiation Period, then the Fair Market Rental shall be established as set forth below. Within fifteen (15) days following expiration of the Negotiation Period, Landlord and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner, and shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental shall be binding upon the parties, shall not be subject to any right of appeal and shall constitute the Rent payable by Tenant during the Extended Term. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of the Extended Term, Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment of the new Fair Market Rental.

Appears in 1 contract

Samples: Lease Agreement (Danger Inc)

Option to Extend Lease Term. ~~At the expiration~~ (i) Paragraph 36(A) of the ~~original~~ Original Lease ~~Term~~shall be modified by deleting the first three (3) sentences and replacing them with the following: “Landlord hereby grants to Tenant, ~~Tenant may extend this Lease as~~ upon and subject to the ~~entire Premises or a portion of the Premises for~~ terms and conditions set forth in this paragraph, two (2) ~~extended terms~~ options (each an “Option”) to extend the Lease Term, each for an additional term of five (5) years ~~each~~ (~~each~~ each, an “~~Extended~~ Option Term”) ), with the first Option Term commencing immediately following the then scheduled Expiration Date, and the second Option Term commencing immediately following the then scheduled expiration of the first Option Term. Each Option Term shall be exercised, if at all, by ~~giving Landlord~~ written notice to Landlord no earlier than eighteen (~~the “Option Notice”~~18) ~~of its intention to do so not~~ months and no later than twelve (12) months prior to the expiration date of the original Lease Term, and thereafter twelve (12) months prior to the expiration of the applicable Extended Term; provided, however, that Tenant is not in material default beyond any applicable notice and cure period under the Lease on the date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall set forth Tenant’s election to extend the Lease for all or a portion of the Premisesthen current term. If Tenant ~~elects~~ fails to ~~extend~~ timely exercise the ~~Lease~~ Option for ~~only a portion~~ the first Option Term, the Option for the second Option Term shall automatically terminate and be of no further force or effect. If Tenant timely exercises an Option for an Option Term, each of the ~~Premises~~terms, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s right to extend the Lease Term provided herein is personal to Tenant and may not be assigned or otherwise transferred except in connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate. The Extended Term shall be upon all of the terms covenants and conditions of this ~~Lease,~~ Lease except ~~that the following rights of Tenant during the original Lease Term~~ this paragraph shall ~~not~~ apply during such ~~Extended~~ Option Term ~~unless granted~~ as ~~part~~ though the expiration date of such Option Term was the ~~Fair Market Rental: (a) any right to rent-free possession; (b) any right to further extension of the Lease Term beyond the Extended Terms~~ date originally set forth herein ~~above; (c) any right to continue to pay~~ as the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree Expiration Date, provided that the Base Monthly Rent ~~during each Extended Term~~ to be paid shall be ~~equal to~~ ninety-five percent (95%) of the ~~Base Rent component~~ Fair Market Rental, as hereinafter defined, for the Premises for such Option Term.” 235283 (ii) The definition of ~~the~~ “Fair Market Rental” in the Original Lease is replaced by the following: “As used herein, the term “Fair Market Rental” is defined as the rental and ~~one hundred percent (100%) of the economic concessions~~all other monetary payments, including any escalations and adjustments thereto (including without ~~limitation~~limitation Consumer Price Indexing) that Landlord could obtain during the Option Term from a third party desiring to lease the Premises, ~~free rent, improvement allowance, base year~~ based upon the (i) current use and other ~~monetary concessions, component~~ potential uses of ~~the Fair Market Rental for~~ the Premises, as determined by the rents then obtainable for new leases of space comparable in age and quality to the Premises in the same real estate submarket as the Building and (ii) the credit standing and financial stature of the Tenant. The appraisers shall be advised that the Base Monthly Rent to be paid by Tenant during the Option Term will be ninety five percent (95%) of the Fair Market Rental determined by the appraisers for the Premises, and the appraisers shall be instructed that in determining Fair Market Rental the appraisers shall not factor in any discount for costs which Landlord will not incur in the event Tenant exercises its Option such as (i) brokerage commissions, (ii) tenant improvement or relocation allowances, (iii) vacancy costs, and (iv) other concessions or inducements.” (iii) The last two (2) sentences of Original Lease paragraph 36(B) are hereby amended to read as follows~~: (a) Concurrent with Tenant’s delivery of each Option Notice, Tenant shall provide Landlord with written notice of its determination~~ : “If the amount of Fair Market Rental ~~for the Premises (“Tenant’s Determination of FMR”). Within thirty (30~~as finally determined pursuant to paragraph 36(C) ~~days after~~ below is greater than Landlord’s ~~receipt~~ determination, Tenant shall pay to Landlord the difference between the amount paid by Tenant and the amount that is ninety five percent (95%) of ~~Tenant’s Determination of FMR, Landlord shall,~~ the Fair Market Rental determined by ~~written notice delivered to Tenant, either (a~~Paragraph 36(C) ~~accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”)~~below. If ~~Landlord does not deliver either~~ the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination amount of Fair Market Rental ~~for the Premises (“~~as finally determined pursuant to Paragraph 36(C) below is less than Landlord’s ~~Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period~~determination, the ~~parties shall negotiate in good faith in an effort to agree upon~~ difference between the amount paid by Tenant and the amount that is ninety five percent (95%) of the Fair Market Rental ~~within thirty (30~~as so determined in Paragraph 36(C) ~~days after~~ below shall be credited against the next installments of rent due from Tenant to Landlord ~~delivers the Notice of Rejection (“Negotiation Period~~hereunder.”). (biv) If the parties fail to agree on the Fair Market Rental for such Extended Term during the Negotiation Period, then the Fair Market Rental shall be established as set forth below. Within fifteen (15) days following expiration All other terms and conditions of paragraph 36 of the Negotiation Period, Landlord and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner, and shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental shall be binding upon the parties, shall not be subject to any right of appeal and shall constitute the Rent payable by Tenant during the Extended Term. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Original Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of the Extended Term, Tenant shall continue to ~~pay the Base Rent in effect~~ apply. Paragraph 36 (A) as amended herein, shall supersede all prior amendments of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment of the new Fair Market Rental.paragraph 36(A). 235283

Appears in 1 contract

Samples: Lease (Affymetrix Inc)

Option to Extend Lease Term. ~~At the expiration~~ (i) Paragraph 36(A) of the ~~original~~ Original Lease ~~Term~~shall be modified by deleting the first three (3) sentences and replacing them with the following: “Landlord hereby grants to Tenant, ~~Tenant may extend this Lease as~~ upon and subject to the ~~entire Premises or a portion of the Premises for~~ terms and conditions set forth in this paragraph, two (2) ~~extended terms~~ options (each an “Option”) to extend the Lease Term, each for an additional term of five (5) years ~~each~~ (~~each~~ each, an “~~Extended~~ Option Term”) ), with the first Option Term commencing immediately following the then scheduled Expiration Date, and the second Option Term commencing immediately following the then scheduled expiration of the first Option Term. Each Option Term shall be exercised, if at all, by ~~giving Landlord~~ written notice to Landlord no earlier than eighteen (~~the “Option Notice”~~18) ~~of its intention to do so not~~ months and no later than twelve (12) months prior to the expiration date of the original Lease Term, and thereafter twelve (12) months prior to the expiration of the applicable Extended Term; provided, however, that Tenant is not in material default beyond any applicable notice and cure period under the Lease on the date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall set forth Tenant’s election to extend the Lease for all or a portion of the Premisesthen current term. If Tenant ~~elects~~ fails to ~~extend~~ timely exercise the ~~Lease~~ Option for ~~only a portion~~ the first Option Term, the Option for the second Option Term shall automatically terminate and be of no further force or effect. If Tenant timely exercises an Option for an Option Term, each of the ~~Premises~~terms, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s right to extend the Lease Term provided herein is personal to Tenant and may not be assigned or otherwise transferred except in connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate. The Extended Term shall be upon all of the terms covenants and conditions of this ~~Lease,~~ Lease except ~~that the following rights of Tenant during the original Lease Term~~ this paragraph shall ~~not~~ apply during such ~~Extended~~ Option Term ~~unless granted~~ as ~~part~~ though the expiration date of such Option Term was the ~~Fair Market Rental: (a) any right to rent-free possession; (b) any right to further extension of the Lease Term beyond the Extended Terms~~ date originally set forth herein ~~above; (c) any right to continue to pay~~ as the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree Expiration Date, provided that the Base Monthly Rent ~~during each Extended Term~~ to be paid shall be ~~equal to~~ ninety-five percent (95%) of the ~~Base Rent component~~ Fair Market Rental, as hereinafter defined, for the Premises for such Option Term.” (ii) The definition of ~~the~~ “Fair Market Rental” in the Original Lease is replaced by the following: “As used herein, the term “Fair Market Rental” is defined as the rental and ~~one hundred percent (100%) of the economic concessions~~all other monetary payments, including any escalations and adjustments thereto (including without ~~limitation~~limitation Consumer Price Indexing) that Landlord could obtain during the Option Term from a third party desiring to lease the Premises, ~~free rent, improvement allowance, base year~~ based upon the (i) current use and other ~~monetary concessions, component~~ potential uses of ~~the Fair Market Rental for~~ the Premises, as determined by the rents then obtainable for new leases of space comparable in age and quality to the Premises in the same real estate submarket as the Building and (ii) the credit standing and financial stature of the Tenant. The appraisers shall be advised that the Base Monthly Rent to be paid by Tenant during the Option Term will be ninety five percent (95%) of the Fair Market Rental determined by the appraisers for the Premises, and the appraisers shall be instructed that in determining Fair Market Rental the appraisers shall not factor in any discount for costs which Landlord will not incur in the event Tenant exercises its Option such as (i) brokerage commissions, (ii) tenant improvement or relocation allowances, (iii) vacancy costs, and (iv) other concessions or inducements.” (iii) The last two (2) sentences of Original Lease paragraph 36(B) are hereby amended to read as follows~~: (a) Concurrent with Tenant’s delivery of each Option Notice, Tenant shall provide Landlord with written notice of its determination~~ : “If the amount of Fair Market Rental ~~for the Premises (“Tenant’s Determination of FMR”). Within thirty (30~~as finally determined pursuant to paragraph 36(C) ~~days after~~ below is greater than Landlord’s ~~receipt~~ determination, Tenant shall pay to Landlord the difference between the amount paid by Tenant and the amount that is ninety five percent (95%) of ~~Tenant’s Determination of FMR, Landlord shall,~~ the Fair Market Rental determined by ~~written notice delivered to Tenant, either (a~~Paragraph 36(C) ~~accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”)~~below. If ~~Landlord does not deliver either~~ the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination amount of Fair Market Rental ~~for the Premises (“~~as finally determined pursuant to Paragraph 36(C) below is less than Landlord’s ~~Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period~~determination, the ~~parties shall negotiate in good faith in an effort to agree upon~~ difference between the amount paid by Tenant and the amount that is ninety five percent (95%) of the Fair Market Rental ~~within thirty (30~~as so determined in Paragraph 36(C) ~~days after~~ below shall be credited against the next installments of rent due from Tenant to Landlord ~~delivers the Notice of Rejection (“Negotiation Period~~hereunder.”). (biv) If the parties fail to agree on the Fair Market Rental for such Extended Term during the Negotiation Period, then the Fair Market Rental shall be established as set forth below. Within fifteen (15) days following expiration All other terms and conditions of paragraph 36 of the Negotiation Period, Landlord and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner, and shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental shall be binding upon the parties, shall not be subject to any right of appeal and shall constitute the Rent payable by Tenant during the Extended Term. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Original Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of the Extended Term, Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a creditapply. Paragraph 36, as ~~applicable~~modified in this Sixth Amendment, ~~with in thirty (30) days after the establishment~~ shall supersede all prior amendments of ~~the new Fair Market Rental~~paragraph 36.

Appears in 1 contract

Samples: Lease (Affymetrix Inc)

Option to Extend Lease Term. At Tenant shall have the ~~expiration~~ right to extend the term of ~~the original Lease Term, Tenant may extend~~ this Lease ~~as to the entire Premises or a portion of the Premises~~ for two (2) ~~extended terms~~ additional consecutive periods of five (5) years each (each hereinafter an ~~“Extended~~ "Extension Term”) "), such rights to be exercised by ~~giving Landlord~~ written notice from Tenant to Landlord given not less than three hundred sixty-five (~~the “Option Notice”~~365) ~~of its intention to do so not later than twelve (12) months~~ days prior to the applicable expiration date of the ~~original~~ Lease Term~~, and thereafter twelve (12) months prior to the expiration~~ . Each extension right may only be exercised if no Event of ~~the applicable Extended Term; provided, however, that~~ Default by Tenant ~~is not in material default beyond any applicable notice and cure period~~ under the Lease has occurred and is continuing, either at the time of the exercise of the extension right or at the commencement of such extension. In the event this Lease is terminated for any reason, the rights granted to Tenant in this paragraph shall also terminate at the same time. In the event Tenant exercises the right to extend the term of this Lease as provided herein and subsequently an Event of Default by Tenant occurs prior to commencement of an Extension Term, Landlord may elect, by written notice to Tenant, to terminate Tenant's prior election to exercise its right to extend the term hereof, in which event Tenant shall have no rights with respect to the Extension Term or any subsequent Extension Term. Tenant's failure or inability to timely and properly exercise its right to the first Extension Term shall automatically terminate the second Extension Term. The right to extend the term of this Lease may only be exercised by Tenant and any permitted assignee under Article 10 above, and may not be transferred outside of this Lease or exercised by any other person or entity. The leasing of the Premises during any Extension Term shall be upon the same terms and conditions as are contained herein with respect to the initial term, and the Lease Term shall be deemed to include such Extension Term, except that (1) there shall be no further options to extend the term hereof after the Extension Term unless expressly granted by the Landlord in writing, (2) the provisions of this Lease shall not apply that are in the nature of concessions to induce Tenant to enter into this Lease such as rent abatement, tenant allowances, tenant improvements and the like, and (3) the monthly Base Rent rate per rentable square foot during each Extension Term shall be the then fair market rent as reasonably determined by Landlord (including periodic increases to Base Rent during each Extension Term), but in no event less than the Base Rent rate payable during the final month of the previous Lease Term. The fair market rent determined by Landlord shall be based on rents for comparable space of comparable size with a comparable level of tenant improvements for a similar term and commencement date for tenants of similar credit to that of Tenant, by reference to first-class space in other buildings comparable to the Buildings in age, quality and location (south Orange County office buildings in office/ business centers or parks as defined by CB Richxxx Xxxxx xx of the date of ~~giving such notice or on the date of commencement of such Extended Term~~this Lease). ~~The Option Notice shall set forth Tenant’s election to extend the Lease for all or a portion~~ Upon notification from Tenant of the ~~Premises. If Tenant elects~~ exercise of each extension option, Landlord shall, at least one hundred fifty (150) days prior to extend the Lease for only a portion of the Premises, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the ~~applicable Extended~~ Extension Term~~. Any termination~~ , notify Tenant in writing of the ~~entire Lease~~ proposed rental for the extension term; Tenant shall ~~result~~ within fifteen (15) business days following receipt of same notify Landlord in ~~automatic termination~~ writing of ~~this option~~the acceptance or rejection of the proposed rental. TENANT'S FAILURE TO TIMELY PROVIDE SUCH NOTICE SHALL CONSTITUTE ACCEPTANCE OF THE PROPOSED RENTAL. In the event of rejection by Tenant~~’s right to extend~~ , the Lease Term provided herein is personal to Tenant and may not be assigned or otherwise transferred except in connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate. The Extended Term extension rental shall be ~~upon all~~ determined as follows: Within fifteen (15) days following notification of ~~the terms and conditions of this Lease~~rejection, except that the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental: (a) any right to rent-free possession; (b) any right to further extension of the Lease Term beyond the Extended Terms set forth herein above; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant ~~hereby acknowledge~~ shall each appoint a disinterested and ~~agree that the Base Rent during each Extended Term shall be equal to ninety-five~~ qualified real estate professional (95%) of the Base Rent component of the “Fair Market Rental” and one hundred percent (100%) of the economic concessions, including without limitation, free rent, improvement allowance, base year and other monetary concessions, component of the Fair Market Rental for the Premises, as determined by as follows: (a) Concurrent with Tenant’s delivery of each Option Notice, Tenant shall provide Landlord with written notice of its determination of Fair Market Rental for the Premises (“Tenant’s Determination of FMR”). Within thirty (30) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”but not an appraiser). If ~~Landlord does~~ these two real estate professionals cannot ~~deliver either~~ agree upon an extension rental within fifteen (15) days following their appointment, the ~~Notice~~ two appointees shall forthwith select a third disinterested and qualified real estate professional, and the decision of ~~Acceptance or~~ any two of the ~~Notice of Rejection within said thirty (30) day period, Landlord~~ three real estate professionals shall be ~~deemed~~ binding. Notification in writing of this decision shall be made by the real estate professionals to ~~have accepted Tenant’s Determination of FMR. If~~ Landlord ~~delivers a Notice of Rejection, Landlord shall also concurrently deliver to~~ and Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in good faith in an effort to agree upon the Fair Market Rental within thirty (30) days ~~after~~ following the selection of the third real estate professional. Landlord ~~delivers~~ and Tenant shall bear the ~~Notice~~ expense of ~~Rejection (“Negotiation Period”). (b) If~~ the ~~parties fail to agree on~~ real estate professional appointed by each, and the ~~Fair Market Rental for such Extended Term during~~ expense of the ~~Negotiation Period, then the Fair Market Rental~~ third real estate professional shall be shared equally by both parties. During such process for establishing rent, Tenant shall pay rent for the Extension Term at Landlord's rate, with retroactive adjustment made if a different rate is established as ~~set forth below~~provided above. Within fifteen (15) days ~~following expiration~~ after the rental has been finally determined, the parties shall execute a written confirmation of the ~~Negotiation Period, Landlord~~ Extension Term and extension Base Rent. Failure or refusal of Tenant ~~shall mutually agree upon a broker~~ to ~~determine~~ execute the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner, and shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental confirming memorandum shall be ~~binding upon the parties, shall not be subject to any right~~ an Event of ~~appeal and shall constitute the Rent payable by Tenant during the Extended Term~~Default. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of the Extended Term, Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment of the new Fair Market Rental.

Appears in 1 contract

Samples: Lease (Western Digital Corp)

Option to Extend Lease Term. At Landlord hereby grants to Tenant an --------------------------- option to extend the ~~expiration~~ Lease Term for period of three (3) years ("Extended Term"), on the following terms and conditions: (a) Tenant shall give Landlord written notice of its exercise of the ~~original~~ option to extend the Lease Term no earlier than nine (9) months nor later than six (6) months before the date the Lease Term would end but for said exercise. Time is of the essence. (b) Tenant may not extend the Lease Term pursuant to this Paragraph 3.5 if Tenant is in material default of any of its obligations under this Lease as of the date of Tenant's notice of exercise of this option, or if Tenant shall have assigned or otherwise transferred its interest in this Lease and/or more than twenty-five percent of the rentable square footage of the Premises, whether or not Landlord's consent to such assignment or transfer has been given. The preceding sentence to the contrary notwithstanding, Tenant shall not be precluded from extending the Lease Term as provided herein solely because Tenant may have assigned this Lease to a Permitted Assignee (as defined in Section 24.4). If Tenant is in default under this Lease on the date that the Extended Term is to commence, then Landlord may elect to terminate this Lease, notwithstanding any notice given by Tenant of an exercise of its option to extend and such exercise of Tenant's option to extend the Lease Term shall be void and of no force or effect. (c) All terms and conditions of this Lease shall apply during the Extended Term, except that the Rent for the Extended Term shall be determined in accordance with Paragraph 4.4 below, Tenant shall have no further options to extend the Lease Term and Landlord shall have no obligation to construct or install any tenant improvements as described in Exhibit C attached --------- hereto. (d) Once Tenant delivers notice of its exercise of the option to extend the Lease Term, Tenant may ~~extend this Lease as~~ not withdraw such exercise and, subject to the ~~entire Premises or a portion~~ provisions of the Premises for two (2) extended terms of five (5) years each (each an “Extended Term”) by giving Landlord written notice (the “Option Notice”) of its intention to do so not later than twelve (12) months prior to the expiration of the original Lease Termthis Paragraph 3.5, and thereafter twelve (12) months prior to the expiration of the applicable Extended Term; provided, however, that Tenant is not in material default beyond any applicable notice and cure period under the Lease on the date of giving such notice ~~or on the date of commencement of such Extended Term. The Option Notice~~ shall ~~set forth Tenant’s election~~ operate to extend the Lease for all or a portion of the Premises. If Tenant elects to extend the Lease for only a portion of the Premises, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. ~~Any termination of~~ Upon the entire Lease shall result in automatic termination of this option. Tenant’s right to extend the Lease Term provided herein is personal to Tenant and may not be assigned or otherwise transferred except in connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate. The Extended Term shall be upon all of the terms and conditions of this Lease, except that the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental: (a) any right to rent-free possession; (b) any right to further extension of the Lease Term ~~beyond~~ pursuant to this Paragraph 3.5, the ~~Extended Terms set forth herein above; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate~~ term "Lease Term" as used in this Lease shall thereafter include the Extended Term ~~early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for~~ and the Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term Lease Termination date shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term shall be equal to ninety-five (95%) of the Base Rent component of the “Fair Market Rental” and one hundred percent (100%) of the economic concessions, including without limitation, free rent, improvement allowance, base year and other monetary concessions, component of the Fair Market Rental for the Premises, as determined by as follows: (a) Concurrent with Tenant’s delivery of each Option Notice, Tenant shall provide Landlord with written notice of its determination of Fair Market Rental for the Premises (“Tenant’s Determination of FMR”). Within thirty (30) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in good faith in an effort to agree upon the Fair Market Rental within thirty (30) days after Landlord delivers the Notice of Rejection (“Negotiation Period”). (b) If the parties fail to agree on the Fair Market Rental for such Extended Term during the Negotiation Period, then the Fair Market Rental shall be established as set forth below. Within fifteen (15) days following expiration of the Negotiation Period, Landlord and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner, and shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental shall be binding upon the parties, shall not be subject to any right of appeal and shall constitute the Rent payable by Tenant during the Extended Term. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement date of the Extended ~~Term, Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted~~ Term unless sooner terminated pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment of the new Fair Market Rentalterms hereof.

Appears in 1 contract

Samples: Net Lease Agreement (Navisite Inc)

Option to Extend Lease Term. At the expiration of the original ~~Lease~~ Term, Tenant may extend this Lease ~~as to the entire Premises or a portion of the Premises~~ for two (2) extended terms of five (5) years each ~~(each an “Extended Term”)~~ by giving Landlord written notice ~~(the “Option Notice”)~~ of its intention to do so not later than twelve (12) months prior to the expiration of the original Lease Term, and thereafter twelve (12) months prior to the expiration of the applicable ~~Extended Term~~extended term; provided, however, that Tenant is not in material default beyond any applicable ~~notice and~~ cure period under the Lease on the date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall set forth Tenant’s election to extend the Lease for all or a portion of the Premises. If Tenant elects to extend the Lease for only a portion of the Premises, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Termextended term. Any termination of the ~~entire~~ Lease shall result in automatic termination of this option. Tenant’s right to extend the Lease Term provided herein is personal to Tenant and may not be assigned or otherwise transferred ~~except in connection with~~ separate from this Lease; provided, however, the foregoing shall not prohibit Tenant from assigning the right to extend to a ~~permitted~~ Tenant Affiliate pursuant to an assignment of ~~this Lease, including to a Tenant’s Affiliate~~the Lease permitted under Section 9.02. The ~~Extended Term~~ extended term shall be upon all of the terms and conditions of this Lease, except that the following rights of Tenant during the original Term of this Lease ~~Term~~ shall not apply during such ~~Extended Term unless granted as part of the Fair Market Rental~~extended term: (a) any right to rent-free possession; (b) any right to further extension of the term of the Lease ~~Term~~ beyond the ~~Extended Terms~~ extended terms set forth herein above; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; ~~(e) any right to terminate the Extended Term early;~~ and (f~~) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h~~) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new ~~Extended Term~~ extension term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section ~~4.2(e~~4.02(e) shall apply). In no event shall the Base Rent for any extended term be less than the Base Rent payable by Tenant during the full month immediately preceding the extended term. The Base Rent for each extended term shall be calculated as follows: (a) Landlord and Tenant hereby acknowledge and agree that the Base Rent during each ~~Extended Term~~ extended term shall be equal to ~~ninety-five (95%) of the Base Rent component of~~ the “Fair Market Rental” and one hundred percent (100%) of the economic concessions, including without limitation, free rent, improvement allowance, base year and other monetary concessions, component of the Fair Market Rental for the Premises, as determined in accordance with this Section. Following receipt by ~~as follows: (a) Concurrent with~~ Landlord of Tenant’s ~~delivery of~~ notice to exercise each ~~Option Notice~~option, ~~Tenant~~ Landlord shall provide ~~Landlord~~ Tenant with written notice of its determination of Fair Market Rental for the ~~Premises (“Tenant’s Determination of FMR”)~~Premises. ~~Within~~ The parties shall have thirty (30) days ~~after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR~~ thereafter (“~~Notice of Acceptance~~Agreement Period”~~), or (b~~) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in ~~good faith in an effort~~ order to agree ~~upon the Fair Market Rental within thirty (30) days after Landlord delivers the Notice of Rejection (“Negotiation Period”)~~on Base Rent during such extended term. (b) If the parties fail to agree on the ~~Fair Market Rental~~ Base Rent for such ~~Extended Term~~ extended term during the ~~Negotiation~~ Agreement Period, then the Fair Market Rental shall be established ~~as set forth below~~by appraisal. ~~Within fifteen (15) days following expiration of the Negotiation Period,~~ Landlord and Tenant shall ~~mutually agree upon a broker~~ each appoint one real estate appraiser who meets the qualifications set forth below, within thirty (30) days following the Agreement Period (“Appraiser Selection Period”); provided, however, that if either party fails to designate an appraiser within the time period specified, then the appraiser who is designated shall conclusively determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the Rental. The two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker appraisers shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner, and shall notify the parties of his or her decision. The broker’s decision attempt to reach an agreement concerning the Fair Market Rental ~~shall be binding upon~~ within the ~~parties, shall not be subject to any right of appeal and shall constitute~~ within thirty (30) days after the ~~Rent payable by Tenant during the Extended Term~~second thereof has been designated. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building ~~(“Comparable Buildings”)~~ and involving ~~non-renewing~~ leases ~~(i.e. leases where the tenant is not already occupying the leased premises)~~ with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new ~~tenant and build out space~~tenant, brokerage commissions, a new base ~~year (if given in comparable deals) and/or the anticipated budget for Additional Rent~~year, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) Should the two appraisers be unable to agree within said thirty (30) days, the two appraisers shall each submit an independent written appraisal and together they shall designate one (1) additional person as appraiser (which appraiser must also meet the qualifications set forth below) within five (5) days following the expiration of said thirty (30) day period; provided however, that if the difference between the two appraisals is ten percent (10%) or less, then an additional appraiser shall not be designated and the Fair Market Rental shall equal the average of the two (2) appraisals that are submitted. If the two appraisers cannot agree upon a third appraiser, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such third appraiser. The third appraiser shall submit an independent written appraisal within fifteen (15) days following his or her appointment. The Fair Market Rental shall be equal to the average of the two (2) written appraisals which are closest, and third (3rd) appraisal shall be disregarded. (e) Each party shall bear the costs of the appraiser appointed by it. If three (3) appraiser are appointed, each party shall bear the cost of the appraiser appointed by it and the parties shall share equally in the cost of the ~~broker~~third appraiser. No person shall be appointed or designated ~~a broker~~ an appraiser unless he or she is (i) an independent appraiser who is a currently certified member of the American Institute of Real Estate Appraisers (with MAI designation) and unless he or she has at least five (5) years’ experience as an appraiser in Maricopa County, or (ii) a real estate broker ~~licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has~~ with at least ten (10) years’ experience in leasing of commercial office space in the ~~Southwest Valley market and is recognized within~~ vicinity of the ~~field as being reputable and ethical~~Project. The ~~broker~~ third appraiser shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (ef) In the event that the Fair Market Rental is not established before the commencement of the ~~Extended Term~~extended term, Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent ~~and concessions granted pursuant to the Fair Market Rental~~ shall be retroactively effective as of the beginning of the ~~Extended Term~~extended term, and Tenant shall pay Landlord any deficiency ~~or Tenant shall receive a credit, as applicable,~~ with in thirty (30) days after the establishment of the new ~~Fair Market Rental~~Base Rent.

Appears in 1 contract

Samples: Office Lease (VectoIQ Acquisition Corp.)

Option to Extend Lease Term. At Grant of Options Landlord hereby grants to Tenant one option (the "Option") to extend the Lease Term for additional term of five years (the "Extension)", on the same terms and conditions as set forth in the Lease, but at an increased rent as negotiated. The Option shall be exercised only by written notice delivered to Landlord at least one hundred twenty (120) days before the expiration of the ~~original~~ Lease Term, . If Tenant ~~may extend this Lease as~~ fails to ~~the entire Premises or a portion of the Premises for two (2) extended terms of five (5) years each (each an “Extended Term”) by giving~~ deliver Landlord written notice ~~(the “Option Notice”) of its intention to do so not later than twelve (12) months prior to the expiration~~ of the ~~original Lease Term~~exercise of an Option within the prescribed time period, such Option shall lapse, and thereafter twelve (12) months prior to the expiration of the applicable Extended Term; provided, however, that Tenant is not in material default beyond any applicable notice and cure period under the Lease on the date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall set forth Tenant’s election to extend the Lease for all or a portion of the Premises. If Tenant elects to extend the Lease for only a portion of the Premises, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) there shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s no further right to extend the Lease ~~Term provided herein is personal to Tenant and may not be assigned or otherwise transferred except in connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate~~Term. The ~~Extended Term~~ Option shall be ~~upon all of~~ exercisable by Tenant on the ~~terms and~~ express conditions ~~of this Lease, except~~ that ~~the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental:~~ (a) at the time of the exercise, and at all times prior to the commencement of such Extension, Tenant shall not be in default under any ~~right to rent-free possession;~~ of the provisions of this Lease and (b) ~~any right to further extension~~ Tenant has not been ten (10) or more days late in the payment of rent more than a total of three (3) times during the Lease Term ~~beyond the Extended Terms set forth herein above~~. The receipt and acceptance by Landlord of delinquent Rent shall not constitute a waiver of any other default; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost it shall constitute only a waiver of ~~security~~ timely payment for the ~~Building; and (h) the right to the continuation~~ particular Rent payment involved. No act or conduct of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term shall be equal to ninety-five (95%) of the Base Rent component of the “Fair Market Rental” and one hundred percent (100%) of the economic concessionslandlord, ~~including~~ including, without limitation, ~~free rent, improvement allowance, base year and other monetary concessions, component~~ the acceptance of keys to the Premises shall constitute an acceptance of the ~~Fair Market Rental for~~ surrender of the ~~Premises, as determined~~ Premises by ~~as follows: (a) Concurrent with Tenant’s delivery~~ Tenant before the expiration of ~~each Option Notice,~~ the Term. Only a written notice from Landlord to Tenant shall ~~provide Landlord with written notice~~ constitute acceptance of ~~its determination~~ the surrender of ~~Fair Market Rental for~~ the Premises ~~(“Tenant’s Determination~~ and accomplish a termination of ~~FMR”)~~the Lease. ~~Within thirty (30) days after~~ Xxxxxxxx's consent to or approval of any act by Tenant requiring Landlord~~’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”),~~ 's consent or ~~(b) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does~~ approval shall not ~~deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall~~ be deemed to waive or render unnecessary Landlord's consent to or approval of any subsequent act by Xxxxxx. Any waiver by Landlord of any default must be in writing and shall not be a waiver of any other default concerning the same or any other provision of the Lease. The parties hereto have ~~accepted Tenant’s Determination~~ executed this Lease as of ~~FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for~~ the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in good faith in an effort to agree upon the Fair Market Rental within thirty (30) days after Landlord delivers the Notice of Rejection (“Negotiation Period”). (b) If the parties fail to agree on the Fair Market Rental for such Extended Term during the Negotiation Period, then the Fair Market Rental shall be established as dates set forth below. ~~Within fifteen (15) days following expiration~~ LANDLORD TENANT THE XXXXXXX DRUG COMPANY PACIFIC TRAIL, INC./LONDON FOG INDUSTRIES By: By:/s/ Xxxxxxx X. Xxxxxxx --------------------------- ------------------------- Title: Title:EVP & CFO ------------------------ ---------------------- By: ------------------------- Title: ---------------------- CONSULT YOUR ADVISORS - This document has been prepared for approval by your attorney. No representation or recommendation is made by Xxxxxx & Company as to the legal sufficiency or tax consequences of this document or the transaction to which it relates. These are questions for your attorney. In any real estate transaction, it is recommended that you consult with a professional, such as a civil engineer, industrial hygienist or other person, with experience in evaluating the condition of the ~~Negotiation Period~~property, ~~Landlord~~ including the possible presence of asbestos, hazardous materials and ~~Tenant shall mutually agree upon~~ underground storage tanks. ACKNOWLEDGMENT OF LESSOR STATE OF WASHINGTON ) ) SS. COUNTY OF KING ) On this ____________________ day of _____________________________ ,19__ , before the undersigned, a ~~broker to determine the Fair Market Rental~~ Notary Public in and ~~shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use~~ for the ~~arbitration procedure set forth below; provided however~~State of Washington, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner, and shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental shall be binding upon the parties, shall not be subject personally appeared ____________________________________________________________________________ to ~~any right of appeal and shall constitute the Rent payable by Tenant during the Extended Term. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed~~ me known to be the ~~rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity~~ __________________________ and _______________________ of the ~~Building~~ corporation that ~~are comparable in quality, age~~ executed the within and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditionsforegoing lease, and ~~involving~~ acknowledged the ~~use~~ said instrument to be the free and voluntary act and deed of ~~the premises for similar purposes allowed under the Lease for tenants of similar size~~said corporation, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the ~~lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality~~ uses and ~~design to the Premises~~purposes therein mentioned, and ~~such spaces used for comparison shall be comparable~~ on oath stated that they were authorized to ~~the Premises with respect to their location within such buildings, the quality~~ execute said instrument and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the ~~Fair Market Rental~~ seal affixed is ~~not established before~~ the ~~commencement~~ corporate seal of the Extended Term, Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment of the new Fair Market Rentalsaid corporation.

Appears in 1 contract

Samples: Lease Agreement (Mounger Corp)

Option to Extend Lease Term. At Tenant shall have the ~~expiration of the original Lease Term~~right and option, ~~Tenant may extend~~ which said option shall not be severed from this Lease as or separately assigned, mortgaged or transferred, at its election, to extend the ~~entire Premises or a portion of the Premises~~ Original Lease Term for ~~two~~ one (21) ~~extended terms~~ additional period of five (5) years ~~each (each an “Extended Term”) by giving Landlord written notice~~ (the “~~Option Notice~~Extension Period”) commencing upon the expiration of the Original Lease Term, provided that (a) Landlord shall receive written notice from Tenant of the exercise of its ~~intention to do so not later than~~ election at least twelve (12) months prior to the expiration of the ~~original~~ Original Lease Term, ~~and thereafter twelve~~ but no sooner than fifteen (1215) months prior to the expiration of the ~~applicable Extended~~ Original Lease Term; ~~provided, however, that~~ (b) no Event of Default shall exist at the time of Landlord’s receipt of such notice and at the expiration of the Original Lease Term; and (c) the original Tenant named herein or any Affiliate is ~~not in material default beyond any~~ itself occupying the entire Premises both at the time of giving the applicable notice and cure period under the Lease on the date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall set forth Tenant’s election to extend the Lease for all or a portion of the Premises. If Tenant elects to extend the Lease for only a portion of the Premises, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following at the commencement of the ~~applicable Extended Term~~Extension Period. ~~Any termination~~ Notwithstanding the foregoing, in the event that there is a monetary Event of Default by Tenant two (2) or more times during any five (5) year period (even if subsequently cured by Tenant), then the extension option set forth herein shall automatically terminate and shall be of no further force and effect. If Landlord shall receive notice of the ~~entire~~ exercise of the election in the manner and within the time provided aforesaid, the Original Lease Term shall be extended upon the receipt of the notice without the requirement of any action on the part of Landlord or Tenant, except as may be required in order to determine Base Rent as hereinafter provided. Except for the amount of Base Rent (which is to be determined as hereinafter provided), all the terms, covenants, conditions, provisions and agreements contained in this Lease shall ~~result in automatic termination of this option. Tenant’s right~~ be applicable to the Extension Period, except that there shall be no further options to extend the Lease Term ~~provided herein is personal~~ nor shall Landlord be obligated to ~~Tenant and may not be assigned~~ make or ~~otherwise transferred except~~ pay for any improvements to the Premises nor pay any inducement payments of any kind or nature. Landlord hereby reserves the right, exercisable by Landlord in ~~connection with a permitted assignment of this Lease~~its sole discretion, ~~including~~ to a Tenant’s Affiliate. The Extended Term shall be upon all of the terms and conditions of this Lease, except that the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental: waive (in writing) any condition precedent set forth in clauses (a~~) any right to rent-free possession;~~ ), (b) ~~any right to further extension of the Lease Term beyond the Extended Terms set forth herein above;~~ or (c) ~~any right~~ above. Time is of the essence with respect to ~~continue to pay~~ the ~~same Base Rent; (d) any right to additional~~ exercise of the option contained herein. Tenant ~~Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h)~~ shall not have the right to give any notice exercising such option after the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term shall be equal to ninety-five (95%) of the Base Rent component of the “Fair Market Rental” and one hundred percent (100%) of the economic concessions, including without limitation, free rent, improvement allowance, base year and other monetary concessions, component of the Fair Market Rental for the Premises, as determined by as follows: (a) Concurrent with Tenant’s delivery of each Option Notice, Tenant shall provide Landlord with written notice of its determination of Fair Market Rental for the Premises (“Tenant’s Determination of FMR”). Within thirty (30) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in good faith in an effort to agree upon the Fair Market Rental within thirty (30) days after Landlord delivers the Notice of Rejection (“Negotiation Period”). (b) If the parties fail to agree on the Fair Market Rental for such Extended Term during the Negotiation Period, then the Fair Market Rental shall be established as set forth below. Within fifteen (15) days following expiration of the Negotiation Period, Landlord and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure applicable time limitation set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any mannerherein, and ~~shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental~~ any notice given after such time limitation purporting to exercise such option shall be ~~binding upon the parties, shall not be subject to any right~~ void and of ~~appeal and shall constitute the Rent payable by Tenant during the Extended Term~~no force or effect. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of the Extended Term, Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment of the new Fair Market Rental.

Appears in 1 contract

Samples: Lease Agreement (One)

Option to Extend Lease Term. ~~At the expiration of the original Lease Term,~~ Provided Tenant ~~may extend~~ is not in default under any term or provision contained in this Lease ~~as to the entire Premises or a portion~~ beyond any applicable notice and cure period, and is in possession of the Premises ~~for~~ at the time Tenant exercises its option, Tenant shall have two (2) ~~extended terms~~ options to extend the Lease Term (“Extension Option”) for a period of five (5) years each (~~each an~~ “~~Extended~~ Option Term”) ~~by giving Landlord~~ for all of the space then under the Lease under the same terms and conditions except for the Base Monthly Rent and parking fees. If Tenant wishes to exercise an Extension Option, Tenant shall deliver written notice to Landlord no less than six (~~the “Option Notice”) of its intention to do so not later than twelve (12~~6) months prior to the expiration of the ~~original~~ then existing Lease ~~Term~~Term (“Exercise Notice”). If Tenant fails to timely deliver the Exercise Notice, Tenant shall be considered to have elected not to exercise the Extension Option. The Base Monthly Rent payable during the Option Term shall be 95% of the then prevailing Fair Market Rental (“FMR”). For the purposes of this Section 1, “Fair Market Rental” is the rental rate, determined in accordance with this Section 1, at which tenants are leasing comparable space on the Lease Expiration Date. For this purpose, comparable space (“Comparable Space”) shall take into account factors including but not limited to: (a) Not subleased; (b) Not subject to another tenant’s expansion rights; (c) Comparable in size, location, and ~~thereafter twelve (12) months prior~~ quality to the ~~expiration~~ Premise; (d) Leased for a term comparable to Tenant’s lease of the ~~applicable Extended~~ Premises; (e) Similar in use/purpose; and (f) Located in the Building and in other comparable office buildings and office building projects located in the Los Angeles Mid-Wilshire Districts. Landlord and Tenant shall have until the date that is sixty (60) days following the date that Landlord receives Tenant’s Exercise Notice to mutually agree upon the Fair Market Value for the Option Term. Except for Base Monthly Rent at the new rate, all of the terms and conditions of the Lease shall remain the same and shall remain in full force and effect throughout the Option Term; provided, however, that ~~Tenant is not~~ any free rent, improvement allowances, moving allowances, lease assumption payments, plan design allowances (or payments), expansion options, opportunity rights or other similar concessions provided for in ~~material default beyond any applicable notice and cure period under~~ the Lease on the date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall set forth Tenant’s election to extend the Lease for all or a portion of the Premises. If Tenant elects to extend the Lease for only a portion of the Premises, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s right to extend the Lease Term provided herein is personal to Tenant and may not be assigned or otherwise transferred except in connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate. The Extended Term shall be upon all of the terms and conditions of this Lease, except that the following rights of Tenant during the original Lease Term shall not apply during ~~such Extended Term unless granted as part of~~ any Option Term. In the ~~Fair Market Rental: (a) any right~~ event Tenant does not agree to ~~rent-free possession; (b) any right to further extension of~~ the Lease Term beyond the Extended Terms set forth herein above; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security rental rate for the ~~Building; and~~ Option Term during said sixty (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term shall be equal to ninety-five (95%) of the Base Rent component of the “Fair Market Rental” and one hundred percent (100%) of the economic concessions, including without limitation, free rent, improvement allowance, base year and other monetary concessions, component of the Fair Market Rental for the Premises, as determined by as follows: (a) Concurrent with Tenant’s delivery of each Option Notice, Tenant shall provide Landlord with written notice of its determination of Fair Market Rental for the Premises (“Tenant’s Determination of FMR”). Within thirty (30) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (3060) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in good faith in an effort to agree upon the Fair Market Rental within thirty (30) days after Landlord delivers the Notice of Rejection (“Negotiation Period”). (b) If the parties fail to agree on the Fair Market Rental for such Extended Term during the Negotiation Period, then the ~~Fair Market Rental~~ Extension Option shall terminate and be ~~established as set forth below. Within fifteen (15) days following expiration of the Negotiation Period, Landlord~~ null and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR void and the ~~final Tenant’s Determination of FMR is five percent (5%) or less~~Lease shall, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in pursuant to its entirety, without averaging or otherwise adjusting such value in any manner, and shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental shall be binding upon the parties, shall not be subject to any right of appeal and shall constitute the Rent payable by Tenant during the Extended Term. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed provisions terminate at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of the Extended Term, Tenant shall continue to pay the Base Rent in effect as of the end of the ~~prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted pursuant~~ original Lease Term. The rights contained in this Section 1 shall be personal to the ~~Fair Market Rental shall~~ originally named Tenant and may be ~~retroactively effective~~ exercised only by the originally named Tenant (and not any assignee, sublessee, or other transferee of Tenant’s interest in this Lease) and only if the originally named Tenant occupies the entire Premises as of the ~~beginning~~ date it exercises the Extension Option in accordance with the terms of ~~the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment of the new Fair Market Rental~~this section.

Appears in 1 contract

Samples: Office Lease (Wilshire Bancorp Inc)

Option to Extend Lease Term. ~~At the expiration of the original Lease Term,~~ Landlord hereby grants to Tenant may extend this Lease as to the entire Premises or a portion of the Premises for two (2) extended terms of five (5) years each (each an “Extended Term”) by giving Landlord written notice (the “Option Notice”) of its intention to do so not later than twelve (12) months prior to the expiration of the original Lease Term, and thereafter twelve (12) months prior to the expiration of the applicable Extended Term; provided, however, that Tenant is not in material default beyond any applicable notice and cure period under the Lease on the date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall set forth Tenant’s election to extend the Lease for all or a portion of the Premises. If Tenant elects to extend the Lease for only a portion of the Premises, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s right ---------------------------- option to extend the Lease Term ~~provided herein is personal to~~ for a three ( 3 ) year term on the following terms and conditions: A. Tenant must give Landlord notice in writing of its exercise of the option in question no earlier than one hundred eight (180) days and no later than one hundred twenty (120) days before the date the Lease Term would end but for said exercise. B. Tenant may not ~~be assigned or otherwise transferred except~~ extend the Lease Term pursuant to any option granted by this paragraph if Tenant is materially in ~~connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate. The Extended Term shall be upon all~~ default beyond any applicable cure period as of the date of exercise of the option in question or as of the date this Lease would have been terminated but for said exercise. C. All terms and conditions of this ~~Lease~~Lease shall apply during the option period, except that the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental: (a) any right to rent-free possession; (b) any right to further extension of the Lease Term beyond the Extended Terms set forth herein above; (c) any right to continue to pay the same Base ~~Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security~~ Monthly Rent for the ~~Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses~~ option period shall be determined as provided in Paragraph D. D. The Base Monthly Rent for the ~~first twelve (12) months of each new Extended Term~~ Option Period shall be the ~~actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e~~greater of (i) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term shall be equal to ninety-five (95%) of the Base Rent component of the “Fair Market Rental” and one hundred percent (100%) of the ~~economic concessions, including without limitation, free rent, improvement allowance, base year and other monetary concessions, component~~ Base Monthly Rent due the last month of the Fair Market Rental for the Premises, as determined by as follows: (a) Concurrent with Tenant’s delivery of each Option Notice, Tenant shall provide Landlord with written notice of its determination of Fair Market Rental for the Premises (“Tenant’s Determination of FMR”). Within thirty (30) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”)previous Lease Term, or (bii) ~~reject Tenant’s Determination~~ one-hundred percent ( 100% ) of ~~FMR (“Notice~~ the then fair market monthly rent determined as of ~~Rejection”)~~the commencement of the option period in question based upon like buildings with like improvements in the Sunnyvale area. If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties ~~shall negotiate in good faith in an effort~~ are unable to agree upon the ~~Fair Market Rental within thirty~~ fair market monthly rent for the Premises for the option period in question at least seventy-five (3075) days ~~after Landlord delivers~~ prior to the ~~Notice~~ commencement of ~~Rejection (“Negotiation Period”).~~the option period in question, then the fair market monthly rent shall be determined by appraisal conducted pursuant to subparagraph E. ~~(b) If~~ E. In the ~~parties fail~~ event it becomes necessary to ~~agree on~~ determine by appraisal the ~~Fair Market Rental~~ fair market rent of the Premises for ~~such Extended Term~~ the purpose of establishing the Base Monthly Rent during the ~~Negotiation~~ Option Period, then ~~the Fair Market Rental~~ such fair market monthly rent shall be ~~established as set forth below. Within fifteen~~ determined by three (153) ~~days following expiration~~ real estate appraisers, all of whom shall be members of the ~~Negotiation Period, Landlord and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination~~ American Institute of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is Real Estate Appraisers with not less than five ~~percent~~ (5%) years experience appraising real property (other than residential or ~~less~~agricultural property) located in Santa Xxxxx County, ~~then~~ California, in accordance with the following procedures: (1) The party demanding an appraisal (the "Notifying Party") shall notify the other party (the "Non-Notifying Party") thereof by delivering a ~~broker shall not~~ written demand for appraisal, which demand, to be ~~designated~~ effective, must give the name, address, and qualifications of an appraiser selected by the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such brokerNotifying Party. Within ten (10) ~~business~~ days of receipt of said demand, the Non-Notifying Party shall select its appraiser and notify the Notifying Party, in writing, of the name, address, and qualifications of an appraiser selected by it. Failure by the Non- Notifying Party to select a qualified appraiser within said ten (10) day period shall be deemed a waiver of its right to select a second appraiser on its own behalf and the Notifying Party shall select a second appraiser on behalf of the Non-Notifying Party within five (5) days after the expiration or said ten (10) day period. Within ten (10) days from the date the second appraiser shall have been appointed, the two (2) appraisers so selected shall appoint a third appraiser. If the two appraisers fail to select a third qualified appraiser, the third appraiser shall be selected by the American Arbitration Association or if it shall refuse to perform this function, then at the request or either Landlord or Tenant, such third appraiser shall be promptly appointed by the then Presiding Judge of the Superior Court of the State of California for the County of Santa Xxxxx. (2) The three (3) appraisers so selected shall meet in Sunnyvale, California, not later than twenty (20) days following the selection of the ~~broker~~third appraiser. At said meeting the appraisers so selected shall attempt to determine the fair market monthly rent of the Premises for the option period in question (including the timing and amount of periodic increases), (3) If the appraisers so selected are unable to complete their determinations in one meeting, they may continue to consult at such times as they deem necessary for a fifteen (15) day period from the date of the first meeting, in an attempt to have at least two (2) of them agree. If, at the initial meeting or at any time during said fifteen (15) day period, two (2) or more of the appraisers so selected agree on the fair market rent of the Leased Premises, such ~~broker~~ agreement shall ~~select either~~ be determinative and binding on the ~~final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner~~parties hereto, and ~~shall~~ the agreeing appraisers shall, in simple letter form executed by the agreeing appraisers, forthwith notify both Landlord and Tenant of the parties of his or her decision. The broker’s decision concerning the Fair Market Rental shall be binding upon the parties, shall not be subject to any right of appeal and shall constitute the Rent payable amount set by ~~Tenant during the Extended Term~~such agreement. (c4) ~~Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is~~ If two (2) or more appraisers do not so agree within said fifteen (15) day period, then ~~being charged for space located in buildings in the vicinity of the Building that are comparable in quality~~each appraiser shall, ~~age and size and offer similar amenities to the Building~~ within five (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of the Extended Term, Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (305) days after the ~~establishment~~ expiration of said Fifteen (15) day period, submit his independent appraisal in simple letter form to Landlord and Tenant stating his determination of the ~~new Fair Market Rental~~fair market rent of the Premises for the option period in question. The parties shall then determine the fair market rent for the Premises by determining the average of the fair market rent set by each of the appraisers. However, if the lowest appraisal is less than eighty-five percent (85%) of the middle appraisal then such lowest appraisal shall be disregarded and/or if the highest appraisal is greater than one hundred Fifteen percent (I 15%) of the middle appraisal then such highest appraisal shall be disregarded. If the fair market rent set by any appraisal is so disregarded, then the average shall be determined by computing the average set by the other appraisals that have not been disregarded. (5) Nothing contained herein shall prevent Landlord and Tenant from jointly selecting a single appraiser to determine the fair market rent of the Premises, in which event the determination of such appraisal shall be conclusively deemed the fair market rent of the Premises. (6) Each party shall bear the fees and expenses of the appraiser selected by or for it, and the fees and expenses of the third appraiser (or the joint appraiser if one joint appraiser is used) shall be borne fifty percent (50%) by Landlord and fifty percent (50%) by Tenant.

Appears in 1 contract

Samples: Lease (Quicklogic Corporation)

Option to Extend Lease Term. At Landlord hereby grants to Tenant the ~~expiration of~~ option to extend the ~~original~~ Lease ~~Term, Tenant may extend this Lease as to the entire Premises or a portion of the Premises~~ Term for two (2) ~~extended terms~~ additional periods of five (5) years ~~each~~ (each an “Extended Term” and collectively, the “Extended Terms”~~) by giving~~ ), on the following terms and conditions: A. Tenant shall give Landlord written notice ~~(the “Option Notice”)~~ of its ~~intention~~ exercise of the option to ~~do so not later~~ extend the Lease Term for the Extended Term no earlier than twelve (12) months ~~prior to~~ nor later than nine (9) months before the ~~expiration~~ date the Lease Term would end but for said exercise. Time is of the ~~original~~ essence. If Tenant fails to timely exercise its option to extend the Lease Term for the first Extended Term, then Tenant waives its right to extend the Lease Term for the second Extended Term. B. Tenant may not extend the Lease Term pursuant to this Paragraph 3.4 if Tenant is in default, beyond applicable notice and cure periods, in the performance of any of the material terms and conditions of this Lease at the time of Tenant’s notice of exercise of this option, or if this Lease has been assigned (other than to a Permitted Transferee) or in the event the Premises has been sublet in its entirety for the balance of the Term (other than to a Permitted Transferee). C. All terms and conditions of this Lease shall apply during the applicable Extended Term, except that (i) the monthly Base Rent for the Extended Term shall be determined in accordance with Paragraph 3.4.E below, (ii) there shall be no further rights to extend the Lease Term beyond the Extended Terms referred to in the introductory paragraph of this Paragraph 3.4 above, (iii) Tenant shall not be entitled to six months of free Base Rent as provided in Paragraph 1.10 above and (iv) Landlord shall have no obligation to construct any tenant improvements on, in or around the Premises or in the Building or to provide any tenant improvement allowance, refurbishment allowance, preliminary site plan allowance or fit-up allowance. D. Once Tenant delivers notice of its applicable exercise of the option to extend the Lease Term, ~~and thereafter twelve (12) months prior~~ Tenant may not withdraw such exercise and, subject to the provisions of this Paragraph 3.4, such notice shall operate to extend the Lease Term. Upon the applicable extension of the Lease Term pursuant to this Paragraph 3.4, the term “Lease Term” as used in this Lease shall thereafter include the applicable Extended Term and the expiration date of the Lease shall be the expiration date of the applicable Extended Term; provided, however, that Tenant is not in material default beyond any applicable notice and cure period under the Lease on the date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall set forth Tenant’s election to extend the Lease for all or a portion of the Premises. . E. If Tenant elects to extend the Lease ~~for only a portion~~ Term pursuant to the terms of ~~the Premises~~Paragraph 3.4.A above, the ~~portion of the Premises~~ monthly Base Rent for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s right to extend the Lease Term provided herein is personal to Tenant and may not be assigned or otherwise transferred except in connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate. The Extended Term shall be upon all of the terms and conditions of this Lease, except that the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental: (a) any right to rent-free possession; (b) any right to further extension of the Lease Term beyond the Extended Terms set forth herein above; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term shall be an amount equal to ~~ninety-five (95%) of the Base Rent component of the “Fair Market Rental” and~~ one hundred percent (100%) of the ~~economic concessions~~monthly fair market rental value of the Premises in relation to market conditions at the time of the applicable extension (including, ~~including~~ but not limited to, rental rates for comparable space in Class A office buildings in the North San Xxxx submarket (“Comparable Buildings”) with comparable tenant improvements and taking into consideration all relevant factors, including, without limitation, ~~free rent~~any adjustments to rent based upon direct costs (operating expenses) and taxes, ~~improvement allowance~~load factors, ~~base year~~ cost of living or other rental adjustments; rent abatements and other ~~monetary~~ rent concessions~~, component~~ ; tenant improvement allowances; the relative strength of the ~~Fair Market Rental for~~ tenants; the ~~Premises, as determined by as follows: (a) Concurrent with Tenant’s delivery~~ size of ~~each Option Notice, Tenant shall provide Landlord with written notice~~ the space; whether a brokerage commission will be paid; and any other factors which affect market rental values at the time of ~~its determination of Fair Market Rental for the Premises (“Tenant’s Determination of FMR”~~extension). Within thirty (30) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in good faith in an effort to agree upon the Fair Market Rental within thirty (30) days after Landlord delivers the Notice of Rejection (“Negotiation Period”). (b) If the parties fail to agree on the Fair Market Rental for such Extended Term during the Negotiation Period, then the Fair Market Rental shall be established as set forth below. Within fifteen (15) days following expiration of the Negotiation Period, Landlord and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner, and shall notify the parties of his or her decision. The ~~broker’s decision concerning the Fair Market Rental shall be binding upon the parties, shall not be subject to any right of appeal and shall constitute the~~ Base Rent payable by Tenant during the applicable Extended ~~Term. (c) Landlord and Tenant intend~~ Term shall include any cost of living or other inflationary adjustments to occur during the applicable Extended Term that are assumed in the ~~“Fair Market Rental”~~ determination of the fair market rental value of the Premises. The monthly Base Rent for the applicable Extended Term shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field determined as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of the Extended Term, Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment of the new Fair Market Rental.follows::

Appears in 1 contract

Samples: Net Lease Agreement (Bloom Energy Corp)

Option to Extend Lease Term. At Landlord hereby grants to Tenant the ~~expiration of~~ option to extend the ~~original~~ Lease ~~Term, Tenant may extend this Lease as to the entire Premises or a portion of the Premises~~ Term for ~~two~~ one (21) ~~extended terms~~ additional period of five (5) years ~~each (each an~~ ( “Extended Term”~~) by giving~~ ), on the following terms and conditions: A. Tenant shall give Landlord written notice ~~(the “Option Notice”)~~ of its ~~intention~~ exercise of the option to ~~do so not later~~ extend the Lease Term for the Extended Term no earlier than twelve (12) months ~~prior to~~ nor later than nine (9) months before the ~~expiration~~ date the Lease Term would end but for said exercise. Time is of the ~~original~~ essence. B. Tenant may not extend the Lease ~~Term, and thereafter twelve (12) months prior~~ Term pursuant to ~~the expiration of the applicable Extended Term; provided, however, that~~ this Paragraph 3.3 if Tenant is ~~not~~ in ~~material~~ default beyond any applicable notice and cure ~~period under~~ period, in the performance of any of the material terms and conditions of this Lease at the time of Tenant’s notice of exercise of this option, or if this Lease has been assigned (other than to a Permitted Transferee) or in the event the Premises has been sublet in its entirety for the balance of the Lease on Term (other than to a Permitted Transferee). C. All terms and conditions of this Lease shall apply during the ~~date of giving such notice or on the date of commencement of such~~ Extended Term~~. The Option Notice~~ , except that (i) the monthly Base Rent for the Extended Term shall ~~set forth Tenant’s election~~ be determined in accordance with Paragraph 3.3.E below, (ii) there shall be no further rights to extend the Lease ~~for all~~ Term beyond the Extended Term, (iii) Tenant shall not be entitled to eight (8) months of free or ~~a portion~~ conditionally abated Base Rent as provided in Paragraph 1.10 above and (iv) Landlord shall have no obligation to construct any tenant improvements on, in or around the Premises or in the Building or to provide any tenant improvement allowance, refurbishment allowance, preliminary site plan allowance or fit-up allowance. D. Once Tenant delivers notice of its applicable exercise of the ~~Premises~~option to extend the Lease Term, Tenant may not withdraw such exercise and, subject to the provisions of this Paragraph 3.3, such notice shall operate to extend the Lease Term. Upon the extension of the Lease Term pursuant to this Paragraph 3.3, the term “Lease Term” or “Term of the Lease” or similar expression as used in this Lease shall thereafter include the Extended Term and the expiration date of the Lease shall be the expiration date of the Extended Term. E. If Tenant elects to extend the Lease ~~for only a portion~~ Term pursuant to the terms of ~~the Premises~~Paragraph 3.3.A above, the ~~portion of the Premises~~ monthly Base Rent for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s right to extend the Lease Term provided herein is personal to Tenant and may not be assigned or otherwise transferred except in connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate. The Extended Term shall be upon all of the terms and conditions of this Lease, except that the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental: (a) any right to rent-free possession; (b) any right to further extension of the Lease Term beyond the Extended Terms set forth herein above; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term shall be an amount equal to ~~ninety-five (95%) of the Base Rent component of the “Fair Market Rental” and~~ one hundred percent (100%) of the ~~economic concessions~~monthly fair market rental value of the Premises in relation to market conditions at the time of the extension (including, ~~including~~ but not limited to, rental rates for comparable space in Class A office buildings in the North San Xxxx submarket (“Comparable Buildings”) with comparable tenant improvements and taking into consideration all relevant factors, including, without limitation, ~~free rent~~any adjustments to rent based upon direct costs (operating expenses) and taxes, ~~improvement allowance~~load factors, ~~base year~~ cost of living or other rental adjustments; rent abatements and other ~~monetary~~ rent concessions~~, component~~ ; tenant improvement allowances; the relative strength of the ~~Fair Market Rental~~ tenants; the size of the space; whether a brokerage commission will be paid; and any other factors which affect market rental values at the time of extension); provided, that the monthly Base Rent for the ~~Premises, as determined by as follows:~~ applicable Extended Term shall in no event be lower than the monthly Base Rent payable during the last month of the Lease Term immediately preceding the Extended Term (~~a) Concurrent with Tenant’s delivery~~ without regard to any abatement of ~~each Option Notice, Tenant shall provide Landlord with written notice~~ monthly Base Rent during such last month of ~~its determination of Fair Market Rental for~~ the ~~Premises (“Tenant’s Determination of FMR”~~Lease Term immediately preceding the Extended Term). Within thirty (30) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in good faith in an effort to agree upon the Fair Market Rental within thirty (30) days after Landlord delivers the Notice of Rejection (“Negotiation Period”). (b) If the parties fail to agree on the Fair Market Rental for such Extended Term during the Negotiation Period, then the Fair Market Rental shall be established as set forth below. Within fifteen (15) days following expiration of the Negotiation Period, Landlord and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner, and shall notify the parties of his or her decision. The ~~broker’s decision concerning the Fair Market Rental shall be binding upon the parties, shall not be subject to any right of appeal and shall constitute the~~ Base Rent payable by Tenant during the Extended ~~Term. (c) Landlord and Tenant intend~~ Term shall include any cost of living or other inflationary adjustments to occur during the Extended Term that are assumed in the ~~“Fair Market Rental”~~ determination of the fair market rental value of the Premises. The monthly Base Rent for the Extended Term shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field determined as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of the Extended Term, Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment of the new Fair Market Rental.follows:

Appears in 1 contract

Samples: Lease Agreement (Rambus Inc)

Option to Extend Lease Term. ~~At the expiration of the original Lease Term~~A. Provided Tenant is not in default hereunder, Tenant ~~may~~ shall have the option to extend the term of this Lease ~~as to~~ (hereinafter, the ~~entire Premises or a portion of the Premises~~ “Option”)) for two (2) ~~extended terms~~ consecutive periods of five (5) years each (each referred to as an “Extended Term”) upon the same terms and conditions, except for Basic Annual Rent and upon the following further terms and conditions. B. Tenant shall exercise said Option only by giving ~~Landlord~~ written notice ~~(the “Option Notice”) of its intention~~ to ~~do so~~ Landlord not later than twelve (12) months prior to the ~~expiration~~ Expiration Date (“Option Notice”). Thereafter, Landlord shall advise Tenant, within ten (10) business days, of the ~~original Lease Term~~Basic Annual Rent for the Option Period, and ~~thereafter twelve~~ Tenant shall then have ten (1210) ~~months prior~~ business days within which to ~~the expiration~~ revoke in writing its exercise of the applicable Extended Term; provided, however, that Tenant is not in material default beyond any applicable notice and cure period under the Lease on the date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall set forth Tenant’s election to extend the Lease for all or a portion of the Premises. If Tenant elects to extend the Lease for only a portion of the Premises, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) Option. C. Basic Annual Rent shall be 95% of fair rental value, but in ~~a readily marketable and leasable location~~no event less than 1.08 multiplied by the then current Basic Annual Rent. ~~Landlord~~ In the event that the parties cannot agree on what the fair rental value shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s right to extend the Lease Term provided herein is personal to Tenant and may not be assigned or otherwise transferred except in connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate. The Extended Term shall be upon all of the terms and conditions of this Lease, except that the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental: (a) any right to rent-free possession; (b) any right to further extension of the Lease Term beyond the Extended Terms set forth herein above; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term shall be equal to ninety-five (95%) of the Base Rent component of the “Fair Market Rental” and one hundred percent (100%) of the economic concessions, including without limitation, free rent, improvement allowance, base year and other monetary concessions, component of the Fair Market Rental for the Premises, as determined by as follows: (a) Concurrent with Tenant’s delivery of each Option Notice, Tenant shall provide Landlord with written notice of its determination of Fair Market Rental for the Premises (“Tenant’s Determination of FMR”). Within thirty (30) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in good faith in an effort to agree upon the Fair Market Rental within thirty (30) days ~~after Landlord delivers~~ following the ~~Notice of Rejection (“Negotiation Period”). (b) If~~ Option Notice, the ~~parties fail to agree on the Fair Market Rental for such Extended Term during the Negotiation Period, then the Fair Market Rental~~ matter shall be ~~established as set forth below. Within fifteen (15) days following expiration~~ determined by arbitration at the election of the Negotiation Period, Landlord and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner, and shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental shall be binding upon the parties, shall not be subject to any right of appeal and shall constitute the Rent payable by Tenant during the Extended Term. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. . The arbitration proceedings shall be completed and the determination of such Basic Annual Rent made not later than thirty (e30) ~~In the event that the Fair Market Rental is not established before~~ days prior to the commencement of the Extended Term. In the event that Tenant preliminarily exercises its Option, ~~Tenant shall continue to pay~~ the ~~Base Rent in effect as~~ costs of the ~~end of~~ resulting arbitration shall be shared equally between the ~~prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted~~ parties. Any arbitration conducted pursuant to the ~~Fair Market Rental~~ provisions hereof shall be ~~retroactively effective as~~ conducted by an independent appraiser selected by the parties. If the parties cannot agree on such person, then each party shall select one appraiser and the two persons so selected shall appoint a third appraiser. The appraisers shall be members of the ~~beginning~~ American Institute of Real Estate Appraisers or its successor organization, or if neither is in existence, then persons recognized as professional real estate appraisers within the Indianapolis metropolitan area. The decision of a majority of such appraisers shall be recognized as the new Basic Annual Rent associated with the Extended Term, and the parties agree to be bound by such determination. D. It is understood and agreed that this Option is personal to Tenant ~~shall pay Landlord~~ and is not transferable; in the event of any ~~deficiency~~ assignment or ~~Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment~~ subleasing of any or all of the ~~new Fair Market Rental~~Leased Premises, said Option shall be null and void. Notwithstanding the foregoing, in the event that Tenant subleases or assigns any part of this Lease to an affiliate of Tenant or to any successor by merger, consolidation or by operation of law, the Option shall continue in full force and effect exercisable by any successor sublessor or assignee under such circumstances.

Appears in 1 contract

Samples: Lease Agreement (Wells Real Estate Fund Xiii L P)

Option to Extend Lease Term. ~~At the expiration~~ (i) Paragraph 36(A) of the ~~original~~ Original Lease ~~Term~~shall be modified by deleting the first three (3) sentences and replacing them with the following: “Landlord hereby grants to Tenant, ~~Tenant may extend this Lease as~~ upon and subject to the ~~entire Premises or a portion of the Premises for~~ terms and conditions set forth in this paragraph, two (2) ~~extended terms~~ options (each an “Option”) to extend the Lease Term, each for an additional term of five (5) years ~~each~~ (~~each~~ each, an “~~Extended~~ Option Term”) ), with the first Option Term commencing immediately following the then scheduled Expiration Date, and the second Option Term commencing immediately following the then scheduled expiration of the first Option Term. Each Option Term shall be exercised, if at all, by ~~giving Landlord~~ written notice to Landlord no earlier than eighteen (~~the “Option Notice”~~18) ~~of its intention to do so not~~ months and no later than twelve (12) months prior to the expiration date of the original Lease Term, and thereafter twelve (12) months prior to the expiration of the applicable Extended Term; provided, however, that Tenant is not in material default beyond any applicable notice and cure period under the Lease on the date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall set forth Tenant’s election to extend the Lease for all or a portion of the Premisesthen current term. If Tenant ~~elects~~ fails to ~~extend~~ timely exercise the ~~Lease~~ Option for ~~only a portion~~ the first Option Term, the Option for the second Option Term shall automatically terminate and be of no further force or effect. If Tenant timely exercises an Option for an Option Term, each of the ~~Premises~~terms, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s right to extend the Lease Term provided herein is personal to Tenant and may not be assigned or otherwise transferred except in connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate. The Extended Term shall be upon all of the terms covenants and conditions of this ~~Lease,~~ Lease except ~~that the following rights of Tenant during the original Lease Term~~ this paragraph shall ~~not~~ apply during such ~~Extended~~ Option Term ~~unless granted~~ as ~~part~~ though the expiration date of such Option Term was the ~~Fair Market Rental: (a) any right to rent-free possession; (b) any right to further extension of the Lease Term beyond the Extended Terms~~ date originally set forth herein ~~above; (c) any right to continue to pay~~ as the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree Expiration Date, provided that the Base Monthly Rent ~~during each Extended Term~~ to be paid shall be ~~equal to~~ ninety-five percent (95%) of the ~~Base Rent component~~ Fair Market Rental, as hereinafter defined, for the Premises for such Option Term.” 235287 (ii) The definition of ~~the~~ “Fair Market Rental” in the Original Lease is replaced by the following: “As used herein, the term “Fair Market Rental” is defined as the rental and ~~one hundred percent (100%) of the economic concessions~~all other monetary payments, including any escalations and adjustments thereto (including without ~~limitation~~limitation Consumer Price Indexing) that Landlord could obtain during the Option Term from a third party desiring to lease the Premises, ~~free rent, improvement allowance, base year~~ based upon the (i) current use and other ~~monetary concessions, component~~ potential uses of ~~the Fair Market Rental for~~ the Premises, as determined by the rents then obtainable for new leases of space comparable in age and quality to the Premises in the same real estate submarket as the Building and (ii) the credit standing and financial stature of the Tenant. The appraisers shall be advised that the Base Monthly Rent to be paid by Tenant during the Option Term will be ninety five percent (95%) of the Fair Market Rental determined by the appraisers for the Premises, and the appraisers shall be instructed that in determining Fair Market Rental the appraisers shall not factor in any discount for costs which Landlord will not incur in the event Tenant exercises its Option such as (i) brokerage commissions, (ii) tenant improvement or relocation allowances, (iii) vacancy costs, and (iv) other concessions or inducements.” (iii) The last two (2) sentences of Original Lease paragraph 36(B) are hereby amended to read as follows~~: (a) Concurrent with Tenant’s delivery of each Option Notice, Tenant shall provide Landlord with written notice of its determination~~ : “If the amount of Fair Market Rental ~~for the Premises (“Tenant’s Determination of FMR”). Within thirty (30~~as finally determined pursuant to paragraph 36(C) ~~days after~~ below is greater than Landlord’s ~~receipt~~ determination, Tenant shall pay to Landlord the difference between the amount paid by Tenant and the amount that is ninety five percent (95%) of ~~Tenant’s Determination of FMR, Landlord shall,~~ the Fair Market Rental determined by ~~written notice delivered to Tenant, either (a~~Paragraph 36(C) ~~accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”)~~below. If ~~Landlord does not deliver either~~ the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination amount of Fair Market Rental ~~for the Premises (“~~as finally determined pursuant to Paragraph 36(C) below is less than Landlord’s ~~Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period~~determination, the ~~parties shall negotiate in good faith in an effort to agree upon~~ difference between the amount paid by Tenant and the amount that is ninety five percent (95%) of the Fair Market Rental ~~within thirty (30~~as so determined in Paragraph 36(C) ~~days after~~ below shall be credited against the next installments of rent due from Tenant to Landlord ~~delivers the Notice of Rejection (“Negotiation Period~~hereunder.”). (biv) If the parties fail to agree on the Fair Market Rental for such Extended Term during the Negotiation Period, then the Fair Market Rental shall be established as set forth below. Within fifteen (15) days following expiration All other terms and conditions of paragraph 36 of the Negotiation Period, Landlord and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner, and shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental shall be binding upon the parties, shall not be subject to any right of appeal and shall constitute the Rent payable by Tenant during the Extended Term. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Original Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of the Extended Term, Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment of the new Fair Market Rentalapply.

Appears in 1 contract

Samples: Lease (Affymetrix Inc)

Option to Extend Lease Term. At (a) Provided that the Lease is still in full force and effect and that Lessee is not in default in the payment of rent or of any of the terms and conditions of the Lease, Lessor grants to Lessee the right and option to extend the term of this Lease for an additional two (2) year period ("Extended Term") commencing on April 1, 1998, the date of the first day following the expiration of the original ~~Lease Term~~term, ~~Tenant may~~ and ending on March 31, 2000; provided, that Lessee shall have exercised this option by having given Lessor written notice of election to extend the term of this Lease ~~as to the entire Premises or a portion of the Premises for two~~ at least one hundred eighty (2180) ~~extended terms of five (5) years each (each an “Extended Term”) by giving Landlord written notice (the “Option Notice”) of its intention to do so not later than twelve (12) months~~ days prior to the expiration of the original ~~Lease Term~~term of this Lease. Except for the rental adjustment as hereinafter set forth, all other terms and ~~thereafter twelve (12) months prior to the expiration~~ conditions of the applicable Extended Term; provided, however, that Tenant is not in material default beyond any applicable notice and cure period under the Lease on the date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall set forth Tenant’s election to extend the Lease for all or a portion of the Premises. If Tenant elects to extend the Lease for only a portion of the Premises, the portion of the Premises for which Tenant elects not to extend the Lease shall ~~be:~~ apply to the Extended Term. (b) Lessee agrees to pay to Lessor in advance on the first day of each and every month during the Extended Term the monthly rent determined in the following manner: (i) ~~either located entirely on~~ The parties hereto shall attempt to agree upon the then prevailing market rent for the Extended Term during the one ~~floor of~~ hundred eighty (180) through the ~~Premises or located on~~ one ~~entire floor and a portion of~~ hundred fifty (150) days immediately preceding the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement first day of the applicable Extended Term. ~~Any termination of~~ If the ~~entire Lease shall result in automatic termination of this option. Tenant’s right to extend~~ parties agree on the Lease Term provided herein is personal to Tenant and may not be assigned or otherwise transferred except in connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate. The Extended Term shall be upon all of adjusted rent within the terms and conditions of this Lease, except that the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental: (a) any right to rent-free possession; (b) any right to further extension of the Lease Term beyond the Extended Terms set forth herein above; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term shall be equal to ninety-five (95%) of the Base Rent component of the “Fair Market Rental” and one hundred percent (100%) of the economic concessions, including without limitation, free rent, improvement allowance, base year and other monetary concessions, component of the Fair Market Rental for the Premises, as determined by as follows: (a) Concurrent with Tenant’s delivery of each Option Notice, Tenant shall provide Landlord with written notice of its determination of Fair Market Rental for the Premises (“Tenant’s Determination of FMR”). Within thirty (30) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day periodtime specified, the parties ~~shall negotiate in good faith in an effort to agree upon~~ will forthwith execute a letter agreement reflecting the Fair Market Rental within thirty (30) days after Landlord delivers the Notice of Rejection (“Negotiation Period”). (b) If the parties fail to agree on the Fair Market Rental for such Extended Term during the Negotiation Period, then the Fair Market Rental shall be established as set forth below. Within fifteen (15) days following expiration of the Negotiation Period, Landlord and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use monthly rent for the arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner, and shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental shall be binding upon the parties, shall not be subject to any right of appeal and shall constitute the Rent payable by Tenant during the applicable Extended Term. (cii) ~~Landlord and Tenant intend that~~ If the ~~“Fair Market Rental” shall be deemed~~ parties are unable to be agree upon the adjusted rent ~~per square foot of rentable area of space that is~~ for an applicable Extended Term within the time provided above, then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) ~~years’ experience~~ days thereafter Lessor shall appoint an arbitrator and immediately notify Lessee in ~~leasing~~ writing of ~~commercial office space in the Southwest Valley market~~ said appointment and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of the ~~Extended Term, Tenant shall continue to pay the Base Rent in effect as~~ name and address of the ~~end~~ arbitrator so appointed, and Lessee shall also similarly at said time appoint an arbitrator and immediately notify Lessor in writing of said appointment and of the ~~prior term; when the Fair Market Rental has been established, the new Base Rent~~ name and ~~concessions granted pursuant to the Fair Market Rental shall be retroactively effective as~~ address of the ~~beginning of~~ arbitrator so appointed. If the ~~Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment of the new Fair Market Rental.~~two arbitrators do not within twenty

Appears in 1 contract

Samples: Standard Industrial Lease (Earth & Ocean Sports Inc)

Option to Extend Lease Term. At (a) For separate, independent and bargained for consideration, Landlord hereby grants to Tenant one (1) option to extend the ~~expiration of the original~~ Lease ~~Term, Tenant may extend this Lease as to the entire Premises or a portion of the Premises~~ Term ("Option") for ~~two (2) extended terms of~~ an additional five (5) years ~~each~~ (~~each an “Extended Term”~~"Option Period") subject to the following terms and conditions: (b) The Option shall be exercised by ~~giving Landlord written notice (the “Option Notice”) of its intention~~ Tenant, if at all, by delivering to ~~do so~~ Landlord, not later than twelve (12) months prior to the expiration of the original Lease ~~Term, and thereafter twelve (12) months prior~~ Term written notice stating Tenant's election to the expiration of the applicable Extended Term; provided, however, that Tenant is not in material default beyond any applicable notice and cure period under the Lease on the date of giving such notice or on the date of commencement of such Extended Term. The exercise its Option ~~Notice shall set forth Tenant’s election~~ to extend the Lease ~~for all or a portion~~ Term ("Tenant's Option Notice"). (c) All terms and conditions of the ~~Premises. If~~ Lease Agreement shall remain the same during the Option Period (provided that in no event shall Tenant ~~elects to extend~~ have the Lease for only a portion of the Premises, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s right to extend the Lease Term after the expiration of the Option Period) except the payment of Base Rent, which shall be determined as provided ~~herein is personal to Tenant and may not be assigned or otherwise transferred except~~ in ~~connection with a permitted assignment~~ Sections 2.11(d) of this Lease~~, including~~ . (d) In the event that Tenant elects to ~~a Tenant’s Affiliate. The Extended Term shall be upon all of~~ exercise the terms and conditions of this Lease, except that the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental: (a) any right Option to ~~rent-free possession; (b) any right to further extension of~~ extend the Lease Term beyond the Extended Terms set forth herein above; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that as provided herein, then the Base Rent payable during ~~each Extended Term~~ the first year of the Option Period (Lease Year 6) shall be ~~equal to ninety-five (95%) of the Base Rent component of the “Fair Market Rental” and~~ one hundred percent (100%) of the ~~economic concessions~~prevailing fair market rental rate for the Premises ("FMRR") as determined in Section 2.11(e) of this Lease; provided, ~~including without limitation~~however, ~~free rent, improvement allowance, base~~ that in no event shall the Base Rent during the first year ~~and other monetary concessions, component~~ of the ~~Fair Market Rental for~~ Option Period (Lease Year 6) be less than the ~~Premises,~~ Base Rent payable in the last year of the original Lease Term (Lease Year 5). The Base Rent shall be increased at the commencement of the second year of the Option Period (Lease Year 7) and at the commencement of each Lease Year thereafter (each of which is referred to herein as an "Adjustment Date") based on increases in the CPI Index in the same manner as provided in Section 3.01(b) of this Lease. (e) The FMRR shall be determined by as follows: (ai) ~~Concurrent with Tenant’s delivery of each Option Notice,~~ Landlord and Tenant shall ~~provide Landlord with written notice of its determination of Fair Market Rental for~~ meet and attempt to determine the ~~Premises (“Tenant’s Determination of FMR”). Within thirty (30) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall,~~ FMRR by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in good faith in an effort to agree upon the Fair Market Rental mutual agreement within thirty (30) days after Landlord ~~delivers the Notice of Rejection (“Negotiation Period”)~~has received Tenant's Option Notice. (bii) If In the event that the parties fail to agree on the ~~Fair Market Rental for~~ FMRR during such ~~Extended Term during the Negotiation Period~~thirty (30) day period, then ~~the Fair Market Rental shall be established as set forth below. Within fifteen~~ each party shall, within ten (1510) days following the expiration of the ~~Negotiation Period~~thirty (30) day period, select an MAI appraiser with at least five (5) years experience in the appraisal of commercial/retail properties and shopping centers in Santa Xxxxx County. The appraisers so selected shall, in turn, select an additional appraiser meeting the same qualifications as the appraisers selected by Landlord and Tenant. (iii) Landlord shall pay the fees of the appraiser selected by Landlord, Tenant shall pay for the fees of the appraiser selected Tenant and Landlord and Tenant shall ~~mutually agree upon a broker to determine~~ share equally the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average fees of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner, and shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental shall be binding upon the parties, shall not be subject to any right of appeal and shall constitute the Rent payable by Tenant during the Extended Termthird appraiser. (civ) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of the Extended Term, Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in Within thirty (30) days ~~after the establishment~~ of being selected, all appraisers shall submit their respective opinions of FMRR to Landlord and Tenant. The average of the ~~new Fair Market Rental~~three (3) FMRR numbers submitted by the appraisers shall be the FMRR for purposes of this Lease. (v) For purposes of this Lease, FMRR shall mean the Base Rent charged for similar premises located within the City of Gilroy of comparable type and quality, taking into account the condition of the Shopping Center and site improvements, the nature, extent and quality of interior improvements and the Shopping Center, the other tenants of the Shopping Center, the amount of parking and other relevant factors.

Appears in 1 contract

Samples: Lease Agreement (Central Coast Bancorp)

Option to Extend Lease Term. At Landlord hereby grants to Tenant the ~~expiration of~~ option to extend the ~~original~~ Lease ~~Term, Tenant may extend this Lease as to the entire Premises or a portion of the Premises~~ Term for ~~two~~ one (21) ~~extended terms~~ period of five (5) years ~~each~~ (~~each an~~ the “Extended Term”~~) by giving~~ ), on the following terms and conditions: 36.1 Tenant shall give Landlord written notice ~~(the “Option Notice”)~~ of its ~~intention to do so not later than twelve (12) months prior to the expiration~~ exercise of the original Lease Term, and thereafter twelve (12) months prior to the expiration of the applicable Extended Term; provided, however, that Tenant is not in material default beyond any applicable notice and cure period under the Lease on the date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall set forth Tenant’s election to extend the Lease for all or a portion of the Premises. If Tenant elects to extend the Lease for only a portion of the Premises, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s right option to extend the Lease Term ~~provided herein~~ for the Extended Term no earlier than nine (9) months nor later than six (6) months before the date the Lease Term would end but for said exercise. Time is ~~personal to~~ of the essence. 36.2 Tenant ~~and~~ may not ~~be assigned or otherwise transferred except~~ extend the Lease Term pursuant to this Section 36 if Tenant is in ~~connection with a permitted assignment~~ default in the performance of ~~this Lease, including to a Tenant’s Affiliate. The Extended Term shall be upon all~~ any of the material terms and conditions of this ~~Lease~~Lease at the time of Tenant’s notice of exercise of this option, or if Tenant shall have assigned or otherwise transferred its interest in this Lease and/or the Premises, or any portion thereof, to any person or entity, whether or not Landlord’s consent to such assignment or transfer has been given (unless Landlord has waived such restriction in any written consent to such assignment or subletting, which waiver may be withheld in Landlord’s sole and absolute discretion). If Tenant is in default under this Lease on the date that the Extended Term is to commence, then Landlord may elect to terminate this Lease notwithstanding any notice given by Tenant of an exercise of its option to extend. 36.3 All terms and conditions of this Lease shall apply during the Extended Term, except that the ~~following~~ Base Monthly Rent for the Extended Term shall be determined in accordance with Section 37 below, there shall be no further rights ~~of Tenant during~~ to extend the ~~original~~ Lease Term and Landlord shall ~~not apply during such Extended Term unless granted as part~~ have no obligation to construct any improvements on, in or around the Premises or in the Building or to provide any tenant improvement allowance. 36.4 Once Tenant delivers notice of its exercise of the ~~Fair Market Rental: (a) any right~~ option to ~~rent-free possession; (b) any right~~ extend the Lease Term, Tenant may not withdraw such exercise and, subject to ~~further~~ the provisions of this Section 36, such notice shall operate to extend the Lease Term. Upon such extension of the Lease Term ~~beyond~~ pursuant to this Section 36, the ~~Extended Terms set forth herein above; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate~~ term “Lease Term” as used in this Lease shall thereafter include the Extended Term ~~early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost~~ and the expiration date of ~~security for~~ the Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term Lease shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term shall be equal to ninety-five (95%) expiration date of the Base Rent component of the “Fair Market Rental” and one hundred percent (100%) of the economic concessions, including without limitation, free rent, improvement allowance, base year and other monetary concessions, component of the Fair Market Rental for the Premises, as determined by as follows: (a) Concurrent with Tenant’s delivery of each Option Notice, Tenant shall provide Landlord with written notice of its determination of Fair Market Rental for the Premises (“Tenant’s Determination of FMR”). Within thirty (30) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in good faith in an effort to agree upon the Fair Market Rental within thirty (30) days after Landlord delivers the Notice of Rejection (“Negotiation Period”). (b) If the parties fail to agree on the Fair Market Rental for such Extended Term during the Negotiation Period, then the Fair Market Rental shall be established as set forth below. Within fifteen (15) days following expiration of the Negotiation Period, Landlord and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner, and shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental shall be binding upon the parties, shall not be subject to any right of appeal and shall constitute the Rent payable by Tenant during the Extended Term. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of the Extended Term, Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment of the new Fair Market Rental.

Appears in 1 contract

Samples: Lease Agreement (SolarJuice Co., Ltd.)

Option to Extend Lease Term. ~~At the expiration~~ Paragraph 2.2 of the ~~original~~ Original Lease ~~Term,~~ is hereby deleted in its entirety. Landlord hereby grants to Tenant ~~may extend this Lease as to the entire Premises or a portion of the Premises for~~ two (2) ~~extended terms~~ options (each individually, “Option”) to extend the Lease Term for the entire Final Remaining Premises for a period of five (5) years each (~~each an~~ each, the “~~Extended~~ Option Term”) immediately following the expiration of the Final Remaining Premises Term, and if applicable the Option Term following the same if the Option therefore is exercised pursuant to this paragraph. Each Option shall be exercised, if at all, by ~~giving Landlord~~ written notice (~~the~~ “Option Notice”) ~~of its intention~~ delivered by Tenant to ~~do so~~ Landlord not later than ~~twelve~~ two hundred seventy days (12270) ~~months~~ days (but no earlier than three hundred sixty-five [365] days) prior to the expiration of the ~~original Lease~~ Final Remaining Premise Term or Option Term, ~~and thereafter twelve (12) months prior~~ as applicable. Further, each Option shall not be deemed to ~~the expiration~~ be properly exercised if, as of ~~the applicable Extended Term; provided, however, that Tenant is not in material default beyond any applicable notice and cure period under the Lease on~~ the date of ~~giving such notice or on~~ the ~~date of commencement of such Extended Term. The~~ Option Notice ~~shall set forth Tenant’s election to extend~~ or at the ~~Lease for all or a portion~~ end of the ~~Premises. If~~ then applicable Final Remaining Option Premises Term or Option Term, Tenant ~~elects to extend the Lease for only a portion of the Premises, the portion of the Premises for which Tenant elects not to extend the Lease shall be:~~ (i) ~~either located entirely on one floor of~~ is in uncured default under the ~~Premises or located on one entire floor and a portion of the other floor;~~ Lease, (ii) ~~a minimum of 15,000 RSF;~~ has assigned the Lease or its interest therein, or (iii) ~~adjacent to a window line and easily accessible; and~~ has sublet more than fifty percent (iv) shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s right to extend the Lease Term provided herein is personal to Tenant and may not be assigned or otherwise transferred except in connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate. The Extended Term shall be upon all of the terms and conditions of this Lease, except that the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental: (a) any right to rent-free possession; (b) any right to further extension of the Lease Term beyond the Extended Terms set forth herein above; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term shall be equal to ninety-five (9550%) of the ~~Base Rent component~~ Final Remaining Premises. Provided Tenant has properly and timely exercised the Option, the Final Remaining Premises Term shall be extended by the applicable Option Term, and Landlord shall have no obligation to provide an allowance to Tenant for, or to make or pay for any improvements or alterations to the Final Remaining Premises in connection with either Option, and all terms, covenants and conditions of the ~~“Fair Market Rental”~~ Lease (as amended) shall remain unmodified and ~~one hundred percent (100%) of the economic concessions~~in full force and effect, ~~including without limitation, free rent, improvement allowance, base year and other monetary concessions, component of the Fair Market Rental~~ except for the Annual Base Rent, which shall be adjusted to the “Market Rate” for the Final Remaining Premises, as ~~determined by as follows: (a) Concurrent~~ defined and in accordance with ~~Tenant’s delivery~~ 3.1.2 of ~~each~~ the Original Lease. No additional options to extend the second Option Notice, Tenant shall provide Landlord with written notice of its determination of Fair Market Rental for the Premises (“Tenant’s Determination of FMR”). Within thirty (30) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord Term herein shall be ~~deemed~~ granted or allowed unless specifically agreed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in good faith in an effort to agree upon the Fair Market Rental within thirty (30) days after Landlord delivers the Notice of Rejection (“Negotiation Period”). (b) If the parties fail to agree on the Fair Market Rental for such Extended Term during the Negotiation Period, then the Fair Market Rental shall be established as set forth below. Within fifteen (15) days following expiration of the Negotiation Period, writing between Landlord and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner, and shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental shall be binding upon the parties, shall not be subject to any right of appeal and shall constitute the Rent payable by Tenant during the Extended Term. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of the Extended Term, Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment of the new Fair Market Rental.

Appears in 1 contract

Samples: Lease Amendment (Harvard Bioscience Inc)

Option to Extend Lease Term. At Lessee shall have the ~~expiration of the original Lease Term~~right and option, ~~Tenant may extend~~ which option shall not be severed from this Lease as or separately assigned, mortgaged or transferred, at its election, to extend the ~~entire Premises or a portion of the Premises~~ initial Lease Term for ~~two~~ one (21) ~~extended terms~~ additional period of five (5) years ~~each (each an “Extended Term”) by giving Landlord written notice~~ (the “~~Option Notice~~Extension Period”) commencing upon the expiration of the initial Lease Term, provided that (a) Lessor shall receive written notice from Lessee of the exercise of its ~~intention to do so not later than twelve~~ election at least six (126) months prior to the expiration of or the ~~original~~ initial Lease Term, and ~~thereafter twelve~~ (12b) ~~months prior to~~ no default by Lessee beyond the expiration of ~~the applicable Extended Term; provided, however, that Tenant is not in material default beyond~~ any applicable notice and cure period ~~under~~ shall exist at the ~~Lease on the date~~ time of ~~giving such notice or on the date of commencement~~ Lessor’s receipt of such ~~Extended Term~~notice. ~~The Option Notice~~ If Lessor shall ~~set forth Tenant’s election to extend the Lease for all or a portion~~ receive notice of the ~~Premises. If Tenant elects to extend the Lease for only a portion~~ exercise of the ~~Premises~~election in the manner and within the time provided aforesaid, the ~~portion~~ Term of ~~the Premises for which Tenant elects not to extend~~ the Lease shall ~~be: (i) either located entirely on one floor~~ be extended for the Extension Period upon the receipt of the ~~Premises~~ notice without the requirement of any action on the part of Lessor or ~~located on one entire floor~~ Lessee, except as may be required in order to determine Base Rent as hereinafter provided. Except for the amount of Base Rent (which is to be determined as hereinafter provided), all the terms, covenants, conditions, provisions and ~~a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv)~~ agreements contained in this Lease shall be ~~in a readily marketable and leasable location. Landlord~~ applicable to the Extension Period, except that there shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s right no further options to extend the Lease Term ~~provided herein is personal~~ nor shall Lessor be obligated to ~~Tenant and may not be assigned~~ make or ~~otherwise transferred~~ pay for any improvements to the Premises nor pay any inducement payments of any kind or nature except as determined as applicable to the “fair market rent” as determined below. Lessor hereby reserves the right, exercisable by Lessor in ~~connection with a permitted assignment of this Lease~~its sole discretion, ~~including~~ to a Tenant’s Affiliate. The Extended Term shall be upon all of the terms and conditions of this Lease, except that the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental: waive (in writing) any condition precedent set forth in clauses (a) any right to rent-free possession; (b) any right to further extension of the Lease Term beyond the Extended Terms set forth herein above; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term shall be equal to ninety-five (95%) of the Base Rent component of the “Fair Market Rental” and one hundred percent (100%) of the economic concessions, including without limitation, free rent, improvement allowance, base year and other monetary concessions, component of the Fair Market Rental for the Premises, as determined by as follows: (a) Concurrent with Tenant’s delivery of each Option Notice, Tenant shall provide Landlord with written notice of its determination of Fair Market Rental for the Premises (“Tenant’s Determination of FMR”). Within thirty (30) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) ~~reject Tenant’s Determination~~ above. Time is of ~~FMR (“Notice~~ the essence with respect to the exercise of ~~Rejection”)~~the option contained herein. ~~If Landlord does~~ Lessee shall not ~~deliver either~~ have the ~~Notice of Acceptance or~~ right to give any notice exercising such option after the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in good faith in an effort to agree upon the Fair Market Rental within thirty (30) days after Landlord delivers the Notice of Rejection (“Negotiation Period”). (b) If the parties fail to agree on the Fair Market Rental for such Extended Term during the Negotiation Period, then the Fair Market Rental shall be established as set forth below. Within fifteen (15) days following expiration of the Negotiation Period, Landlord and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure applicable time limitation set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any mannerherein, and ~~shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental~~ any notice given after such time limitation purporting to exercise such option shall be ~~binding upon the parties, shall not be subject to any right~~ void and of ~~appeal and shall constitute the Rent payable by Tenant during the Extended Term~~no force or effect. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of the Extended Term, Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment of the new Fair Market Rental.

Appears in 1 contract

Samples: Lease (Alpha Teknova, Inc.)

Option to Extend Lease Term. At Landlord hereby grants to Tenant the ~~expiration~~ option to extend the New Premises Lease Term for one (1) period of ~~the original Lease Term, Tenant may extend this Lease as to the entire Premises or a portion of the Premises for~~ two (2) ~~extended terms of five~~ consecutive years (~~5) years each (each an~~ the “Extended Term”), on the following terms and conditions: (a) ~~by giving~~ Tenant shall give Landlord written notice ~~(the “Option Notice”)~~ of its ~~intention~~ exercise of the option to ~~do so not later~~ extend the New Premises Lease Term for the Extended Term no earlier than twelve (12) months ~~prior to~~ or later than six (6) months before the ~~expiration~~ date the New Premises Lease Term would end but for said exercise. Time is of the ~~original~~ essence. (b) Tenant may not extend the New Premises Lease ~~Term, and thereafter twelve (12) months prior~~ Term pursuant to ~~the expiration~~ this Section 19 if there is an Event of ~~the applicable Extended Term; provided, however, that Tenant is not in material default beyond any applicable notice and cure period~~ Tenant’s Default under the ~~Lease on~~ Amended Lease, as amended by this Second Amendment, exists at the ~~date~~ time of ~~giving such notice or on the date of commencement of such Extended Term. The Option Notice shall set forth~~ Tenant’s ~~election to extend the Lease for all or a portion~~ notice of the Premises. If Tenant elects to extend the Lease for only a portion of the Premises, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination exercise of this option~~. Tenant’s right to extend the Lease Term provided herein is personal to~~ , or if Tenant ~~and may not be~~ shall have assigned or otherwise transferred ~~except~~ its interest in ~~connection~~ Amended Lease, as amended by this Second Amendment, and/or the New Premises, or any portion thereof, to any person or entity (other than an entity which controls, is controlled by or is under common control with ~~a permitted~~ Tenant), whether or not Landlord’s consent to such assignment or transfer has been given (unless Landlord has waived such restriction in any written consent to such assignment or subletting, which waiver may be withheld in Landlord’s sole and absolute discretion). If an Event of Tenant’s Default exists on the date that the Extended Term is to commence, then Landlord may elect to terminate the Amended Lease, as amended by this Second Amendment, effective as of the New Premises Expiration Date notwithstanding any notice given by Tenant of an exercise of its option to extend. (c) Once Tenant delivers notice of its exercise of the option to extend the New Premises Lease Term, Tenant may not withdraw such exercise and, subject to the provisions of this ~~Lease~~Section 19, ~~including~~ such notice shall operate to ~~a Tenant’s Affiliate~~extend the New Premises Lease Term. ~~The Extended Term shall be upon all of the~~ All terms and conditions of this Original Lease, as amended by this Second Amendment, shall apply during the Extended Term, except that (i) the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental: (a) any right to rent-free possession; (b) any right to further extension of the Lease Term beyond the Extended Terms set forth herein above; (c) any right to continue to pay the same monthly New Premises Base ~~Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security~~ Rent for the Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term shall be ~~the actual Operating Expenses without any cap and thereafter the cap set forth~~ determined in accordance with Section ~~4.2(e~~19(e) ~~shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term~~ below, (ii) there shall be ~~equal~~ no further rights to ~~ninety-five~~ extend the New Premises Lease Term and (~~95%~~iii) of and Landlord shall have no obligation to construct any improvements on, in or around the ~~Base Rent component of~~ New Premises or in the ~~“Fair Market Rental” and one hundred percent (100%) of the economic concessions, including without limitation, free rent,~~ New Building or to provide any tenant improvement allowance, base year and other monetary concessions, component of the Fair Market Rental for the Premises, as determined by as follows: (a) Concurrent with Tenant’s delivery of each Option Notice, Tenant shall provide Landlord with written notice of its determination of Fair Market Rental for the Premises (“Tenant’s Determination of FMR”). Within thirty (30) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered allowance or refurbishment allowance to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in good faith in an effort to agree upon the Fair Market Rental within thirty (30) days after Landlord delivers the Notice of Rejection (“Negotiation Period”). (b) If the parties fail to agree on the Fair Market Rental for such Extended Term during the Negotiation Period, then the Fair Market Rental shall be established as set forth below. Within fifteen (15) days following expiration of the Negotiation Period, Landlord and Tenant shall mutually agree upon a broker to determine the Fair Market Rental and shall concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner, and shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental shall be binding upon the parties, shall not be subject to any right of appeal and shall constitute the Rent payable by Tenant during the Extended Term. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) ~~The parties shall share equally in~~ Upon the ~~cost~~ extension of the ~~broker. No person~~ New Premises Lease Term pursuant to this Section 19, the term “New Premises Lease Term” or “Lease Term” or “Term” as used in this Second Amendment or the Original Lease shall thereafter include the Extended Term with respect to the New Premises and the expiration date of the Original Lease, as amended by this Second Amendment, with respect to the New Premises shall be ~~appointed or designated a broker unless he or she is a real estate broker licensed in~~ the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement expiration date of the Extended Term, Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment of the new Fair Market Rental.

Appears in 1 contract

Samples: Lease (Oclaro, Inc.)

Option to Extend Lease Term. At Landlord hereby grants Tenant the ~~expiration~~ right to extend the Term of the ~~original~~ 1195 Building Lease ~~Term, Tenant may extend this Lease as to the entire Premises or a portion of the Premises~~ for ~~two~~ one (21) ~~extended terms~~ additional period of five (5) years ~~each~~ (~~each an~~ such extended period is hereinafter referred to as the “Extended Term”) ~~by giving~~ on the same terms and conditions contained in the 1195 Building Lease, except that (i) Base Rent for the Extended Term shall be as set forth hereinbelow with annual three percent (3%) escalations on each anniversary of the commencement of the Extended Term, (ii) no additional options to extend shall apply following the expiration of the Extended Term, and (iii) Landlord ~~written~~ shall have no obligation to make any improvements to the Premises or contribute any amounts therefor. Written notice of Tenant’s exercise of its option to extend (~~the~~ “Option ~~Notice~~to Extend”) the Term of ~~its intention~~ the 1195 Building Lease for the Extended Term must be given to ~~do so not later~~ Landlord no less than ~~twelve~~ eighteen (1218) months prior to the ~~expiration~~ date the Term of the ~~original~~ 1195 Building Lease ~~Term~~would otherwise expire. If Tenant is in default under the 1195 Building Lease, ~~and thereafter twelve (12) months prior~~ Tenant shall have no Option to Extend the ~~expiration~~ Term of the ~~applicable Extended Term~~1195 Building Lease until such default is cured within the cure period set forth in the 1195 Building Lease for such default, if any; provided, ~~however~~that the period of time within which said Option to Extend may be exercised shall not be extended or enlarged by reason of Tenant’s inability to exercise said Option to Extend because of a default. In the event Tenant validly exercises its Option to Extend the Term of the 1195 Building Lease as herein provided, ~~that Tenant is not in material default beyond any applicable notice and cure period under~~ Base Rent shall be adjusted as of the ~~Lease on the~~ commencement date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall set forth Tenant’s election to extend the Lease for all or a portion of the Premises. If Tenant elects to extend the Lease for only a portion of the Premises, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following the commencement of the applicable Extended Term. Any termination of the entire Lease shall result in automatic termination of this option. Tenant’s right to extend the Lease Term provided herein is personal to Tenant and may not be assigned or otherwise transferred except in connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate. The Extended Term shall be upon all of the terms and conditions of this Lease, except that the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental: (a) any right to rent-free possession; (b) any right to further extension of the Lease Term beyond the Extended Terms set forth herein above; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term ~~early; (f) any right~~ to ~~continue to exclude HVAC Capital Expenditures; (g) cost of security~~ the fair market Base Rent for the Building; and (h) the right to the continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended Term as follows (but in no event shall it be the actual Operating Expenses without any cap and thereafter the cap set forth in Section 4.2(e) shall apply). Landlord and Tenant hereby acknowledge and agree that the Base Rent during each Extended Term shall be equal to less than ninety-five percent (95%) of the Base Rent ~~component~~ for the month immediately prior to the commencement of the “Fair Market Rental” and one hundred percent (100%) of the economic concessions, including without limitation, free rent, improvement allowance, base year and other monetary concessions, component of the Fair Market Rental for the Premises, as determined by as follows:Extended Term): (a1) ~~Concurrent with Tenant’s delivery~~ Not later than six (6) months prior to the commencement of each Option Notice, Tenant shall provide Landlord with written notice of its determination of Fair Market Rental for the Premises (“Tenant’s Determination of FMR”). Within thirty (30) days after Landlord’s receipt of Tenant’s Determination of FMR, Landlord shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day periodan Extended Term, Landlord shall ~~be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to~~ provide Tenant with Landlord’s determination of ~~Fair Market Rental~~ the fair market Base Rent for the ~~Premises~~ Extended Term (“Landlord’s Determination of ~~FMR~~Base Rent for Extended Term”). Tenant shall provide notice to Landlord within ten (10) days after receipt of such notice from Landlord as to whether Tenant accepts Landlord’s Determination of Base Rent for Extended Term. In the event Tenant does not agree to Landlord’s Determination of Base Rent for Extended Term, Landlord and Tenant shall attempt to agree upon Base Rent for the Premises for the Extended Term, such rent to be the fair market Base Rent installment of rent for the Premises for the Extended Term, as defined in Subsection (3) below. If ~~Landlord delivers the Notice of Rejection within said thirty (30) day period,~~ the parties ~~shall negotiate in good faith in an effort~~ are unable to agree upon the ~~Fair Market Rental~~ Base Rent for the Extended Term by the date three (3) months prior to the commencement of the Extended Term, then within ten (10) days thereafter each party, at its own cost and by giving notice to the other party, shall appoint a real estate appraiser with at least five (5) years full-time commercial real estate appraisal experience in the area in which the Premises are located to appraise and set Base Rent for the Extended Term. If a party does not appoint an appraiser within ten (10) days after the other party has given notice of the name of its appraiser, the single appraiser appointed shall be the sole appraiser and shall set Base Rent for the Extended Term. If each party shall have so appointed an appraiser, the two (2) appraisers shall meet promptly and attempt to set the Base Rent for the Extended Term. If the two (2) appraisers are unable to agree within thirty (30) days after ~~Landlord delivers~~ the ~~Notice of Rejection~~ second appraiser has been appointed, they shall attempt to select a third appraiser meeting the qualifications herein stated within ten (~~“Negotiation Period”).~~ 10) days after the last day the two (b2) appraisers are given to set Base Rent. If the ~~parties fail~~ two (2) appraisers are unable to agree on the ~~Fair Market Rental~~ third appraiser within such ten (10) day period, either of the parties to the 1195 Building Lease, by giving five (5) days’ notice to the other party, may apply to the Arbitration Service of Portland for ~~such Extended Term during~~ the ~~Negotiation Period~~selection of a third appraiser meeting the qualifications stated in this Section. Each of the parties shall bear one-half (1/2) of the cost of appointing the third appraiser and of paying the third appraiser’s fee. The third appraiser, ~~then the Fair Market Rental~~ however selected, shall be ~~established as set forth below~~a person who has not previously acted in any capacity for either party. (2) The fair market Base Rent shall be fixed by the appraisers in accordance with the following procedures. ~~Within fifteen (15) days following expiration~~ Each party-appointed appraiser shall state, in writing, such appraiser’s determination of the ~~Negotiation Period, Landlord and Tenant shall mutually agree upon a broker to determine~~ fair market Base Rent supported by the ~~Fair Market Rental~~ reasons therefor and shall ~~concurrently deliver their final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use~~ make counterpart copies for the ~~arbitration procedure set forth below; provided however, that if the difference between the final Landlord’s Determination~~ other party-appointed appraiser and any neutral appraiser. The party-appointed appraisers shall arrange for a simultaneous exchange of ~~FMR and the final Tenant’s Determination~~ their proposed fair market Base Rent determinations. The role of ~~FMR is five percent (5%) or less, then a broker~~ any neutral appraiser shall ~~not~~ be ~~designated and the Fair Market Rental shall equal the average~~ to select whichever of the two (2) ~~determinations~~proposed determinations of fair market Base Rent most closely approximates the neutral appraiser’s own determination of fair market Base Rent. ~~If Landlord and Tenant cannot agree upon~~ The neutral appraiser shall have no right to propose a ~~broker, then~~ middle ground or any modification of either ~~party hereunder may request that the Presiding Judge~~ of the ~~Maricopa County Superior Court appoint such broker~~two (2) proposed determinations of fair market Base Rent. ~~Within ten (10) business days after~~ The determination of fair market Base Rent the ~~selection~~ neutral appraiser chooses as that most closely approximating the neutral appraiser’s determination of the ~~broker, such broker~~ fair market Base Rent shall ~~select either~~ constitute the ~~final Landlord’s Determination~~ decision of ~~FMR or~~ the ~~final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner,~~ appraisers and shall ~~notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental shall~~ be final and binding upon the parties, . The appraisers shall ~~not be subject~~ have no power to ~~any right~~ modify the provisions of ~~appeal and shall constitute~~ the ~~Rent payable by Tenant during the Extended Term~~1195 Building Lease. (c3) ~~Landlord and Tenant intend that~~ For purposes of the appraisal, the term “~~Fair Market Rental~~fair market Base Rent” shall ~~be deemed to be~~ mean the ~~rent per square foot of rentable area of space~~ price that ~~is then being charged for space located in buildings in the vicinity~~ a ready and willing tenant would pay, as of the ~~Building that are~~ Extended Term commencement date, as a base rent to a ready and willing landlord of premises comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, ~~and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings~~in terms of size, ~~the~~ quality and ~~quantity of tenant improvements installed at each landlord’s expense~~comparable term, ~~the services provided by each landlord to such tenant~~in their then-improved state, ~~and the financial strength of tenant. (d) The parties shall share equally~~ in the ~~cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona~~Hillsboro, ~~who specializes in the field of commercial office space leasing in the Southeast Valley~~ Oregon market, ~~has at least ten (10) years’ experience in leasing~~ if such premises were exposed for lease on the open market for a reasonable period of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of time; including any rent increases over the Extended Term. In no event shall there be deducted from such fair market rental the value of any concessions, ~~Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established~~including without limitation, ~~the new Base Rent and concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term~~tenant improvements, ~~and Tenant shall pay Landlord any deficiency or Tenant shall receive a credit, as applicable, with in thirty (30) days after the establishment of the new Fair Market Rental~~commission and/or “down time.”

Appears in 1 contract

Samples: Lease (Planar Systems Inc)

Option to Extend Lease Term. At (a) Tenant shall have one option to extend (the ~~expiration of~~ “Option to Extend”) the ~~original~~ initial Lease ~~Term, Tenant may extend this Lease as to the entire Premises or a portion of the Premises~~ Term for ~~two~~ one (21) ~~extended terms~~ additional period of five (5) years ~~each (each an “Extended Term”) by giving Landlord written notice~~ (the “Extension Term”), subject to the following conditions: (i) the Option ~~Notice”)~~ to Extend shall only be exercised by irrevocable written notice of ~~its intention~~ exercise given to ~~do so~~ Landlord not ~~later~~ sooner than twelve (12) months ~~prior~~ and not later than nine (9) months before the Expiration Date; (ii) at the time the Option to Extend is exercised and at the ~~expiration~~ commencement of the ~~original Lease~~ Extension Term, this Lease shall be in full force and ~~thereafter twelve (12) months prior to the expiration of the applicable Extended Term; provided~~effect, ~~however, that~~ and Tenant is shall not then be in ~~material~~ default beyond any applicable notice and cure ~~period under the~~ period; and (iii) except in connection with a Permitted Transfer (as defined below) Tenant has not assigned this Lease ~~on the date of giving such notice or on the date of commencement of such Extended Term. The Option Notice shall set forth Tenant’s election to extend the Lease for~~ nor sublet all or a portion of the Premises~~. If Tenant elects~~ , or if so sublet, no subletting is then in effect at the time the Option to extend the Lease for only a portion of the Premises, the portion of the Premises for which Tenant elects not to extend the Lease shall be: (i) either located entirely on one floor of the Premises or located on one entire floor Extend is exercised and a portion of the other floor; (ii) a minimum of 15,000 RSF; (iii) adjacent to a window line and easily accessible; and (iv) shall be in a readily marketable and leasable location. Landlord shall be responsible for any and all costs to separate the portion of the Premises for which Tenant elects not to extend the Lease from the remainder of the Premises such that the space is a separate easily accessible and readily marketable space promptly following at the commencement of the ~~applicable Extended~~ Extension Term, it being understood and agreed that the Option to Extend is personal to the Tenant originally named herein and any Permitted Transferee (as defined below). ~~Any termination~~ If Tenant fails to exercise the Option to Extend strictly in the manner set forth hereunder, any purported exercise shall be null and void and of no force or effect, and the Option to Extend shall terminate and be deemed waived by Tenant. (b) Within twenty (20) days after Landlord’s receipt of Tenant’s written notice of exercise of the ~~entire Lease~~ Option to Extend, Landlord shall ~~result~~ notify Tenant of Landlord’s good faith determination of the monthly Base Rent that will become applicable pursuant to Section 3.3(c) below. If Tenant in ~~automatic termination~~ good faith disputes Landlord’s determination of ~~this option.~~ Base Rent as indicated in the notice given by Landlord, Tenant shall so notify Landlord within ten (10) business days after Tenant receives Landlord’s determination of Base Rent, and if such dispute is not resolved by negotiation between the parties within ten (10) business days after Tenant’s ~~right~~ notice is given, the Fair Market Rent (as defined below) shall be determined by appraisal pursuant to ~~extend~~ Section 3.3(d) below. If the Base Rent is not determined as of the commencement of the Extension Term, then Tenant’s monthly payments of Base Rent shall be in an amount equal to the monthly Base Rent payable by Tenant immediately prior to the scheduled Expiration Date. Within thirty (30) days following the resolution of such dispute by the parties or the decision of the arbitrators, as applicable, Tenant shall pay to Landlord the amount of any deficiency in the Base Rent previously paid, or Landlord shall pay to Tenant any excess or credit the excess to the next succeeding installments of Base Rent in the Base Rent previously paid, as the case may be. (c) In the event the Option to Extend is exercised by Tenant as required herein, the Lease Term provided herein is personal to Tenant and may not be assigned or otherwise transferred except in connection with a permitted assignment of this Lease, including to a Tenant’s Affiliate. The Extended Term shall be ~~upon~~ extended for the Extension Term subject to all of the terms and conditions of this Lease, ~~except that the following rights of Tenant during the original Lease Term shall not apply during such Extended Term unless granted as part of the Fair Market Rental~~provided that: (a1) ~~any right~~ there shall be no further option to ~~rent-free possession; (b) any right to further extension of~~ extend the Lease Term beyond the ~~Extended Terms set forth herein above~~Extension Term; (c) any right to continue to pay the same Base Rent; (d) any right to additional Tenant Allowance; (e) any right to terminate the Extended Term early; (f) any right to continue to exclude HVAC Capital Expenditures; (g) cost of security for the Building; and (h2) the ~~right to~~ monthly Base Rent during the ~~continuation of any cap on Controllable Operating Expenses from the previous year (it being understood that the Operating Expenses for the first twelve (12) months of each new Extended~~ Extension Term shall be the ~~actual Operating Expenses without any cap~~ “Fair Market Rent”, which means the rental rate for comparable space under primary lease (and ~~thereafter~~ not sublease) to new tenants, taking into consideration the ~~cap~~ unique quality and prestige of the Building and such amenities as existing improvements, view, floor on which the Premises are situated and the like, situated in first class, reputable, established high rise office buildings in comparable locations in the San Francisco Financial District, in comparable physical and economic condition (“Comparable Buildings”), taking into consideration the then prevailing ordinary rental market practices with respect to tenant concessions (if any) (e.g., not offering extraordinary rental, promotional deals and other concessions to tenants which deviate from what is the then prevailing ordinary practice in an effort to alleviate cash flow problems, difficulties in meeting loan obligations or other financial distress, or in response to a greater than average vacancy rate); (3) Landlord shall have no obligation to improve, or provide Tenant with allowances for improvement of, the Premises; and (4) the Base Year shall be the calendar year in which the Extension Term commences. (d) If Fair Market Rent is to be determined by appraisal, then, within twenty (20) days after the expiration of the ten (10)-day negotiation period, Landlord and Tenant shall each appoint as an appraiser an independent real estate broker with at least five (5) years of experience in leasing office space in the San Francisco Financial District, and give notice of such appointment to the other. If either Landlord or Tenant shall fail timely to appoint an appraiser, the appointed appraiser shall select the second appraiser within ten (10) days after the failure of Landlord or Tenant, as the case may be, to appoint. Such appraisers shall, within fifteen (15) days after the appointment of the last of them to be appointed, complete their determinations of Fair Market Rent pursuant to the terms set forth in Section ~~4.2(e~~3.3(c) ~~shall apply).~~ above, and submit their appraisal reports to Landlord and ~~Tenant hereby acknowledge and agree that~~ Tenant. If the ~~Base~~ valuations vary by five percent (5%) or less of the higher value, the Fair Market Rent ~~during each Extended Term~~ shall be ~~equal to ninety-~~the average of the two valuations. If the valuations vary by more than five percent (955%) of the ~~Base Rent component of~~ higher value, the ~~“Fair Market Rental” and one hundred percent~~ two appraisers shall, within ten (100%) of the economic concessions, including without limitation, free rent, improvement allowance, base year and other monetary concessions, component of the Fair Market Rental for the Premises, as determined by as follows: (a) Concurrent with Tenant’s delivery of each Option Notice, Tenant shall provide Landlord with written notice of its determination of Fair Market Rental for the Premises (“Tenant’s Determination of FMR”). Within thirty (3010) days after ~~Landlord’s receipt~~ submission of ~~Tenant’s Determination~~ the last appraisal report, appoint a third appraiser who shall be similarly qualified and independent. If the two appraisers shall be unable to agree timely on the selection of ~~FMR~~a third appraiser, ~~Landlord~~ then either appraiser, on behalf of both, may request such appointment by the presiding judge of the Superior Court of California for the City and County of San Francisco. The third appraiser independently shall, by written notice delivered to Tenant, either (a) accept Tenant’s Determination of FMR (“Notice of Acceptance”), or (b) reject Tenant’s Determination of FMR (“Notice of Rejection”). If Landlord does not deliver either the Notice of Acceptance or the Notice of Rejection within said thirty (30) day period, Landlord shall be deemed to have accepted Tenant’s Determination of FMR. If Landlord delivers a Notice of Rejection, Landlord shall also concurrently deliver to Tenant Landlord’s determination of Fair Market Rental for the Premises (“Landlord’s Determination of FMR”). If Landlord delivers the Notice of Rejection within said thirty (30) day period, the parties shall negotiate in good faith in an effort to agree upon the Fair Market Rental within thirty (30) days after ~~Landlord delivers~~ his or her appointment, select the ~~Notice~~ determination of ~~Rejection (“Negotiation Period”). (b) If the parties fail to agree on the~~ Fair Market ~~Rental for such Extended Term during the Negotiation Period~~Rent that is determined by either Landlord’s appraiser or Tenant’s appraiser, ~~then the Fair Market Rental~~ and shall ~~be established as set forth below~~not make any “compromise” determination. ~~Within fifteen (15) days following expiration of the Negotiation Period,~~ Landlord and Tenant shall ~~mutually agree upon a broker to determine~~ each pay the ~~Fair Market Rental and shall concurrently deliver~~ fees of their ~~final Tenant’s Determination of FMR and final Landlord’s Determination of FMR to use for the arbitration procedure set forth below; provided however~~respective appraisers, that if the difference between the final Landlord’s Determination of FMR and the final Tenant’s Determination of FMR is five percent (5%) or less, then a broker shall not be designated and the Fair Market Rental shall equal the average of the two (2) determinations. If Landlord and Tenant cannot agree upon a broker, then either party hereunder may request that the Presiding Judge of the Maricopa County Superior Court appoint such broker. Within ten (10) business days after the selection of the broker, such broker shall select either the final Landlord’s Determination of FMR or the final Tenant’s Determination of FMR in its entirety, without averaging or otherwise adjusting such value in any manner, and shall notify the parties of his or her decision. The broker’s decision concerning the Fair Market Rental shall be binding upon the parties, shall not be subject to any right of appeal and shall constitute the Rent payable by Tenant during the Extended Term. (c) Landlord and Tenant intend that the “Fair Market Rental” shall be deemed to be the rent per square foot of rentable area of space that is then being charged for space located in buildings appraiser selected on their behalf in the vicinity of the Building that are comparable in quality, age and size and offer similar amenities to the Building (“Comparable Buildings”) and involving non-renewing leases (i.e. leases where the tenant is not already occupying the leased premises) with similar terms and conditions, and involving the use of the premises for similar purposes allowed under the Lease for tenants of similar size, credit quality and stature and include current market concessions including tenant improvement allowances, abatement, downtime to secure a new tenant and build out space, brokerage commissions, a new base year (if given in comparable deals) and/or the anticipated budget for Additional Rent, inducements and other economic considerations for the lease of space comparable to the Premises then being offered in similar buildings in the Southeast Valley Submarket. The spaces used for comparison shall be comparable in size, age, quality and design to the Premises, and such spaces used for comparison shall be comparable to the Premises with respect to their location within such buildings, the quality and quantity of tenant improvements installed at each landlord’s expense, the services provided by each landlord to such tenant, and the financial strength of tenant. (d) The parties shall share equally in the cost of the broker. No person shall be appointed or designated a broker unless he or she is a real estate broker licensed in the State of Arizona, who specializes in the field of commercial office space leasing in the Southeast Valley market, has at least ten (10) years’ experience in leasing of commercial office space in the Southwest Valley market and is recognized within the field as being reputable and ethical. The broker shall not have ever been employed (full-time or part-time or on a consulting basis) by event Landlord or Tenant. (e) In the event that the Fair Market Rental is not established before the commencement of the Extended Term, Tenant shall continue to pay the Base Rent in effect as of the end of the prior term; when the Fair Market Rental has been established, the new Base Rent and concessions granted pursuant to the Fair Market Rental shall be retroactively effective as of the beginning of the Extended Term, and Tenant shall pay Landlord any deficiency or Tenant shall ~~receive a credit~~fail to timely appoint, as ~~applicable, with in thirty (30) days after the establishment~~ provided above. The fees of the ~~new Fair Market Rental~~third appraiser, if there be one, shall be paid one-half by Landlord and one-half by Tenant.

Appears in 1 contract

Samples: Office Lease (Guidance Software, Inc.)

Common use of Option to Extend Lease Term Clause in Contracts