Option to Extend. Tenant shall have one option to extend the Term of this Lease (the “Extension Option”) for one additional period of 7 years (the “Extension Term”) on the terms and conditions of this Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Lease Agreement (WuXi PharmaTech (Cayman) Inc.)

Option to Extend. Landlord grants to Tenant ~~shall have one~~ an option to extend the ~~Term of this Lease (the “Extension Option”)~~ ----------------- term for ~~one additional~~ a period of 7 five (5) years (such extension is hereafter referred to as the ~~“Extension~~ "Second Extended Term~~”) on the terms and conditions of this Section 3.2~~"). The ~~Extension~~ Second Extended Term shall ~~commence~~follow the expiration of the Extended Term. Tenant must exercise the option, if at all, ~~on April 1, 2018,~~ for both the Original Premises and ~~end on March 31, 2025~~the Additional Premises and shall have no right to extend the term of the Lease for only the Original Premises or only the Additional Premises. All the provisions of this Lease shall apply during the Second Extended Term except for the amount of the basic rent. The basic rent for the Second Extended Term shall be adjusted to market rate; provided that in no event shall the basic rent for the Second Extended Term be less than the basic rent in effect at the expiration of the Extended Term. The option is further subject to the following terms and conditions: (a) Tenant ~~may exercise the Extension Option by delivering~~ must deliver its irrevocable written notice of Tenant's exercise of the option to Landlord not less than six (~~a “Notice~~ 6) lease months, nor more than twelve (12) lease months, prior to ~~Extend”)~~ the expiration of the Second Extended Term. Time is of the essence with respect to the time period during which Tenant must deliver to Landlord its written notice of exercise and, therefore, if Tenant fails to give Landlord its irrevocable written notice of its exercise of the ~~Extension Option to Landlord not later than April 1~~option within the applicable time period provided above, ~~2017~~then the option shall expire and be of no further force or effect. ~~3.2.1~~ (b) The ~~Net Rent payable for each month~~ parties shall have thirty (30) days from the date Landlord receives Tenant's notice of exercise in which to agree on the amount constituting the market rate, If Landlord and Tenant agree on the amount of the market rate, they shall immediately execute an amendment to this Lease setting forth the expiration date of the Second Extended Term and the amount of the basic rent to be paid by Tenant during the ~~Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension~~ Second Extended Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant ~~fail, despite good-faith negotiations,~~ are unable to agree on the ~~Prevailing Rental Rate on or before~~ amount of the ~~date~~ market rate within thirty (~~the “Outside Date”~~30) ~~that is 30~~ days after ~~Landlord receives~~ the ~~PRR Objection Notice~~commencement of such negotiations, then the market rate shall be determined in the following manner: Within forty-five (45) days after commencement of negotiations, Landlord and Tenant shall each select an independent licensed commercial real estate broker having not less than ten (10) years experience in the leasing of research and development and industrial properties in Santa Xxxxx County, which broker shall ~~give notice to~~ not have been employed by either party in this transaction. Within fifteen (15) days of their employment, the ~~other~~ two real estate brokers shall select a third real estate broker who is similarly qualified. Within thirty (30) days from the appointment of the ~~name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date~~third broker, the ~~other party shall provide an additional notice to such party requiring such party’s appointment~~ three brokers so selected shall, acting as a board of ~~an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period~~arbitrators, determine the ~~first arbitrator chosen shall make the determination~~ amount of the ~~Prevailing Rental Rate alone~~market rate, basing their determination on standard procedures and tests normally employed in the commercial real estate profession in determining market rate and applying the factors included within the definition of market rate set forth above. ~~If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation~~ The decision of the ~~second arbitrator, make their determination~~ majority of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate brokers shall be final and binding upon ~~Landlord and Tenant. If~~ the ~~two arbitrators fail~~ parties hereto, if a majority of the brokers are unable to agree on the ~~Prevailing Rental Rate by~~ market rate within the ~~end~~ stipulated period of time, the three opinions of the ~~10-business day period~~market rate shall be added together and their total divided by three, ~~then~~ and the ~~two arbitrators~~ resulting quotation shall ~~promptly designate a~~ be the market rate; provided, however, in no event shall the market rate be less than the basic rent in effect at the expiration of the Extended Term. Each party shall pay the expenses and charges of the broker appointed by it and the parties shall pay the expenses and charges of the third ~~arbitrator~~broker in equal shares. If When the ~~two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days~~market rate has been so determined, ~~then either party may apply~~ Landlord and Tenant shall immediately execute an amendment to the ~~American Arbitration Association~~ Lease stating the basic rent for the Second Extended Term. Tenant shall pay the basic rent determined for the Second Extended Term in accordance with the provisions of Paragraph 4(a) of the Lease. (c) As used herein, the "market rate" shall be the monthly rent (triple net) then obtained for five (5) year leases of comparable terms for premises in the Project and in buildings and/or projects within the same geographical area of similar types and identity, quality and location as the Project. (d) Common area charges shall continue to be determined and payable as provided in paragraph 16 of the Lease. (e) Neither party shall have the right to have any court or other third party (other than arbitration by brokers as set forth in subsection (b) above) determine the market rate or the basic rent. Tenant shall not assign or otherwise transfer this option or any ~~successor having jurisdiction for the designation of such arbitrator~~interest therein and any attempt to do so shall render this option or any interest therein null and void. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator Tenant shall have no right to ~~propose a middle ground or any modification~~ extend the term beyond the Second Extended Term. If Tenant is in default under this Lease at the date of ~~either~~ delivery of Tenant's notice of exercise to Landlord, then such notice shall be of no effect and this Lease shall expire at the end of the ~~determinations proposed by~~ Extended Term. if Tenant is in default under this Lease on the ~~original two arbitrators. Each party shall bear the cost~~ last day of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Extended Term, then Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term may in its ~~then-current condition, and Landlord shall~~ sole discretion elect to have ~~no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with~~ Tenant’s 's exercise of the ~~Extension Option~~option be of no effect, in which case the Lease shall expire at the end of the Extended Term.

Appears in 1 contract

Samples: Lease (Integrated Sensor Solutions Inc)

Option to Extend. Provided that this Lease is in full force and effect and Tenant is not in default under any of the material terms and conditions of this Lease at the time of notification and commencement beyond applicable notice and cure periods, if any, at the time of notification and commencement, then Tenant shall have ~~one~~ the option (the “First Extension Option”) for each such Premises to extend the Term of this Lease on up to one hundred percent (100%) of the ~~“Extension Option”)~~ Premises for ~~one additional~~ a period of 7 five (5) years (the “First Extension Term”) ), commencing on the day immediately following the original Termination Date and expiring on the five (5) year anniversary of the original Termination Date (the “First Extension Term Termination Date”), for the portion of the 20 Xxxxxx Premises, the 22 Xxxxxx Premises and/or the 28 Xxxxxx Premises then being leased by Tenant as of the date the First Extension Term is to commence, on the same terms and conditions of this Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location as set forth in ~~the Mendota Heights area, talking into account the terms of~~ this Lease, except as modified by the ~~length of the Extension Term~~terms, covenants and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below.conditions as set forth hereinbelow: ~~3.2.2~~ 40.1.1 If Tenant ~~does not accept Landlord’s determination of~~ elects to exercise the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers First Extension Option with respect to ~~comparable commercial office buildings in~~ the ~~southeastern Twin Cities market~~20 Xxxxxx Premises, ~~exclusive of any broker from any brokerage firm currently representing~~ the 22 Xxxxxx Premises and/or the 28 Xxxxxx Premises, then Tenant shall provide Landlord with written notice no earlier than the date which is fifteen (~~or who had previously represented within~~ 15) months prior to the ~~preceding 2-year period~~original Termination Date, but no later than the date which is twelve (12) ~~either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon~~ months prior to the ~~occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2)~~ original Termination Date. If Tenant fails to timely ~~exercise the Extension Option~~provide such written notice, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further ~~extension~~ or ~~renewal option other than~~ additional right to extend the ~~Extension Option except pursuant to an express written agreement by Landlord executed and delivered after~~ Term of the Lease ~~Date~~for the First Extension Term. 40.1.2 The Annual Rent and Monthly Installment in effect as of the day immediately preceding the Termination Date shall be adjusted to reflect the current Fair Market Rent for the applicable Premises as of the date the First Extension Term is to commence. The “Fair Market Rent” shall mean the arm’s length fair market annual rental rate per rentable square foot under leases entered into on an as-is basis to private sector tenants for a comparable term on or about the date on which the fair market rent is being determined for space comparable to the applicable Premises in the applicable Building and in office buildings comparable to such Building in the immediate vicinity of the Park, taking into account all relevant factors, including without limitation, the adjustment of tax and operating expense base years, as applicable, tenant improvement allowances and any concessions then being offered in the marketplace for space of comparable size, quality and location. Landlord shall ~~lease to~~ advise Tenant of its determination of Fair Market Rent for the applicable Premises for which Tenant has exercised the First Extension ~~Term in~~ Option no later than thirty (30) days after receipt of Tenant’s written request therefor. Said request shall be made no earlier than thirty (30) days prior to the first date on which Tenant may exercise its ~~then-current condition,~~ First Extension Option under this Section 40.1. If Tenant and Landlord are unable to agree on a mutually acceptable Fair Market Rent not later than sixty (60) days prior to the Termination Date, then the parties shall proceed with the following procedures and requirements (the “Appraiser’s Determination”): Landlord and Tenant shall, within ten (10) additional days, each select an appraiser who shall be a member of the M.A.I. or Counselor’s of Real Estate (CRE) (or successor professional organizations) and shall have ~~no obligation to provide to Tenant any allowances~~ at least ten (~~e.g.~~10) years experience appraising rental values of property in the same rental market area whereupon each of said appraisers shall, ~~moving allowance~~within five (5) days of their selection hereunder, ~~construction allowance,~~ select a third appraiser with the foregoing qualifications and the ~~like~~majority shall decide upon the Fair Market Rent which determination shall be binding on Landlord and Tenant. Landlord and Tenant shall share equally the expense of any and all appraisers. The appraiser(s) ~~or other tenant inducements in connection with Tenant’s exercise~~ shall be obligated to make a determination of Fair Market Rent within thirty (30) days following the appointment of the ~~Extension Option~~third appraiser.

Appears in 1 contract

Samples: Lease Agreement (Aspen Technology Inc /De/)

Option to Extend. ~~Tenant~~ Provided Lessee is not then in material default under the terms and provision of this Lease, Lessee, subject to the terms and conditions herein contained, shall have ~~one~~ the option to extend the ~~Term~~ term of this Lease ~~(the “Extension Option”)~~ for one (1) additional ~~period~~ term of 7 five (5) years (the ~~“Extension~~ "Renewal Term”") ~~on the terms and conditions of this Section 3.2~~commencing January 1, 2011. The ~~Extension Term~~ option herein granted shall ~~commence~~be conditioned for its effectiveness upon Lessee notifying Lessor in writing, ~~if at all~~by registered or certified mail before 5:00 p.m., ~~on April~~ July 1, ~~2018~~2010, ~~and end on March 31, 2025~~of Lessee's decision to exercise said option. ~~Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1~~ The ~~Net Rent payable for each month~~ base rental rate during the ~~Extension~~ Renewal Term shall be the then fair market rental rate for first class office space of comparable size and quality in Downtown San Diego, prevailing at the commencement of the Renewal Term. The fair market rental rate shall be determined by mutual agreement between Lessor and Lessee, and upon failure of the parties to so agree at least ninety (90) days prior to the commencement of the Renewal Term, the fair market rental rate shall be determined by three (3) certified appraisers, each of whom must have knowledge of the ~~“Prevailing Rental Rate”~~office rental market in Downtown San Diego. Lessor and Lessee shall each select, at least eighty-five (85) at days prior to the commencement of the ~~Extension~~ Renewal Term, ~~for extensions of space of equivalent quality, size, utility~~an appraiser, and ~~location in~~ the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord two so selected shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, select a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Ratethird. If the two ~~arbitrators agree on the Prevailing Rental Rate, that rate shall be final~~ appraisers selected by Lessor and ~~binding upon Landlord and Tenant. If the two arbitrators fail~~ Lessee are unable within five (5) days of their selection to agree on a third appraiser, the ~~Prevailing Rental Rate~~ third appraiser, at least eighty (80) days prior to the commencement of the Renewal Term, shall be selected by the ~~end~~ then President of the ~~10-business day period~~San Diego Chapter of the Institute of Real Estate Management (or, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as if he or she ~~deems appropriate and shall~~shall refuse to or be unable to do so, ~~within 30 days after his or her designation, choose the one determination out of the two determinations~~ by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs comparable Real Estate Official in ~~connection with such arbitration~~San Diego). The ~~determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall~~ appraisal to be ~~final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power~~ made prior to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the ~~Extension Term, Landlord and Tenant~~ Renewal Term shall ~~execute an amendment to this Lease extending~~ establish the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant fair market rental rate of the Premises for the ~~Extension Term~~ 180 day period immediately preceding commencement of the Renewal Term. In determining the fair market rental rate each appraiser shall: take into consideration the then current availability of similar space in ~~its then-~~buildings of comparable size and age in the San Diego urban area, giving due consideration to the location; assume the Premises are in their current condition; consider the amount of space within the Premises; and consider the credit rating of the Lessee. Said appraisers shall be instructed to determine fair market rental rate independently without consulting each other, and ~~Landlord~~ thereafter, to submit the appraisals to both Lessor and Lessee contemporaneously in writing no later than sixty (60) days prior to the commencement of the Renewal Term. The rental rate shall ~~have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance~~be determined by eliminating the highest and lowest appraisals, and the ~~like) or other tenant inducements in connection with Tenant’s exercise~~ remaining appraisal shall apply. Each party shall pay the cost of its own appraiser. The cost of the ~~Extension Option~~third appraiser, and his/her out of pocket expenses, shall be borne equally by Lessor and Lessee. Upon the determination of fair market rental rate, the parties shall execute an appropriate document confirming said fair market rental rate, and thereafter Lessee shall have ten (10) days in which to make a final election as to whether this lease shall or shall not be so extended. Lessee's choice not to notify Lessor of its final election within the ten (10) days, shall be automatically deemed by Lessor as Lessee's decision the Lease shall not be extended.

Appears in 1 contract

Samples: Office Lease (Pacific Crest Capital Inc)

Option to Extend. Upon expiration of the primary term of this Lease, Tenant ~~shall have one~~ is granted an option to extend the ~~Term~~ term of this Lease ~~(the “Extension Option”)~~ for one (1) additional ~~period of 7 years~~ sixty (60) month period, upon the ~~“Extension Term”) on the~~ same terms and conditions of as are included in this ~~Section 3.2. The Extension Term shall commence~~Lease, ~~if at all~~subject, ~~on April 1~~however, ~~2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice~~ to ~~Extend”) of its exercise~~ renegotiation of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location rent provided in ~~the Mendota Heights area, talking into account the terms~~ paragraph 4 of this Lease. The primary term and the extension terms will be collectively referred to in this Lease as the “term.” Tenant shall notify Landlord within not less than one hundred twenty (120) days prior to the expiration of the primary term of this Lease or prior to the expiration of each extension term of Tenant’s exercise of its option to extend this Lease, provided that in the circumstances described in paragraph 13, the ~~length of~~ options to extend the ~~Extension Term~~term may be exercised earlier as provided in paragraph 13, and ~~all other relevant factors~~if the option to extend is exercised earlier as provided in paragraph 13, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Ratenevertheless, the ~~Prevailing Rental Rate~~ rental payable as provided in paragraph 4 shall be determined at the time and in ~~accordance with Section 3.2.2 below. 3.2.2 If~~ the manner provided in paragraph 4 and this paragraph 3. During the following sixty (60) day period, Tenant ~~does not accept Landlord’s determination~~ and Landlord shall negotiate and arrive at an agreement or disagreement of the ~~Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1,~~ amount of rent to be paid during the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rateapplicable extension term. If Landlord and Tenant ~~fail, despite good-faith negotiations,~~ agree upon the rent to ~~agree on~~ be paid during the ~~Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice~~applicable extension term, Landlord and Tenant ~~each~~ shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by at the end of the ~~10-business~~ sixty (60) day ~~period, then~~ period enter into a new written lease or an amendment agreement setting forth the ~~two arbitrators~~ amount of rental Tenant shall ~~promptly designate a third arbitrator~~be required to pay pursuant paragraph 4 for the applicable extension term and any other additional terms to which Landlord and Tenant have agreed. If ~~the two arbitrators~~ Tenant and Landlord fail to agree upon the ~~designation~~ rent to be paid during the applicable extension term during the sixty (60) day period of negotiations, a ~~third arbitrator within 10 business days~~fair market appraisal comparison of comparable properties will be completed by an independent party upon which the Landlord and Tenant may use to negotiate the amount of rent to be paid during the applicable extension term. If Tenant and Landlord fail to agree upon the rent to be paid during the applicable extension term during the sixty (60) day period of negotiations, ~~then~~ either ~~party may apply~~ Landlord or Tenant may, by written notice to the ~~American Arbitration Association or any successor having jurisdiction for~~ other party given within the ~~designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall~~ensuing thirty (30) day period, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right elect to ~~propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of~~ invoke the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this ~~Lease. All arbitrators~~ Lease to determine the rent Tenant shall be ~~real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect~~ required to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pay pursuant to ~~an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises~~ paragraph 4 for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Optionapplicable extension term.

Appears in 1 contract

Samples: Lease Agreement (Rightnow Technologies Inc)

Option to Extend. So long as the Lease is in full force and effect and, at the time of exercise of the option to renew, Tenant is not in default under the Lease beyond any applicable notice and cure period provided herein, Tenant shall have ~~one option~~ two (2) successive options to extend the ~~Term~~ Lease for a term of ~~this Lease~~ five (5) years each (each, an "Option"), on the ~~“Extension Option”) for one additional period of 7 years (~~same terms and conditions set forth in the ~~“Extension Term”) on~~ Lease, except as modified by the terms and conditions ~~of this Section 3.2. The Extension Term shall commence~~set forth below: i) If Tenant elects to exercise an Option, ~~if at all, on April 1, 2018, and end on March 31, 2025.~~ Tenant ~~may exercise the Extension Option by delivering~~ must provide Landlord with written notice ~~(a “Notice to Extend”)~~ of its election to exercise such Option no earlier than the date which is eighteen (18) months prior to the expiration of the ~~Extension Option to Landlord~~ then current term and not later than ~~April 1~~the date which is six (6) months prior to the expiration of the then current term of the Lease. If Tenant fails to timely provide such notice, ~~2017~~Tenant shall have no further right to exercise any Option or to extend the term of the Lease. Time is of the essence for this provision. ~~3.2.1~~ ii) The ~~Net~~ Base Rent ~~payable~~ for each ~~month during the Extension Term~~ Option term shall be the ~~fair market rental rate (~~Fair Market Rental Rate of the ~~“Prevailing~~ Premises in effect at the expiration of the then current term of the Lease. "Fair Market Rental Rate”) " shall be the then going rate for comparable space at the ~~commencement~~ Xxxxxx Airport Center and other comparable buildings in the Airport sub-market. The determination of the ~~Extension Term, for extensions of space of equivalent quality, size, utility,~~ Fair Market Rental Rate shall take into consideration any concessions and ~~location~~ inducement then being offered by landlords in the ~~Mendota Heights~~ submarket area, ~~talking into account~~ as well as the ~~terms~~ quality of ~~this~~ the buildings, the extent of Tenant's liability under the Lease, abatement provisions reflecting free rent and/or no rent during the period of construction or subsequent to the commencement date as to the space in question, brokerage commissions, length of the ~~Extension Term~~lease term, size and location of premises being leased, building standard work letter and/or tenant improvement allowances, if any, and ~~all~~ other ~~relevant factors, but assuming that~~ generally applicable conditions of tenancy. There shall be no ~~improvements Tenant has made to~~ minimum rent in the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of ~~the Prevailing~~ Fair Market Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (iiii) ~~advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate.~~ If Landlord and Tenant ~~fail, despite good-faith negotiations, to~~ do not agree on the ~~Prevailing~~ Fair Market Rental Rate ~~on or before~~ within thirty (30) days of Tenant's delivery of notice of its intent to exercise an Option, then Landlord and Tenant shall submit the ~~date~~ matter to arbitration as set forth below. (~~the “Outside Date”~~a) ~~that is 30~~ Within fifteen (15) days after the Landlord ~~receives the PRR Objection Notice~~and Tenant's failure to agree as set forth above, Landlord and Tenant shall each appoint an independent appraiser who shall ~~give notice~~ by profession be a real estate broker who shall have been active over the five (5) year period ending on the date of such appointment in the leasing of commercial property in the Las Vegas area. Landlord and Tenant shall each submit to the ~~other~~ appraisers their respective Fair Market Rental Rate determinations (and back-up information regarding their determination), and the determination of the ~~name and address~~ appraisers shall be limited solely to the issue of ~~an arbitrator designated~~ whether Landlord's or Tenant's submitted Fair Market Rental Rate for the Premises is the closest to the actual Fair Market Rental Rate for the Premises, as determined by the ~~party giving~~ appraisers. Such arbitrators may (or at the request of either party, shall) hold such ~~notice~~hearings and require such briefs as the arbitrators, in their discretion, determine to be necessary. (b) The arbitrators shall, within fifteen (15) days of their appointment, agree upon and appoint a third appraiser who shall have the same qualifications required of the initial two appraisers. If ~~either party fails~~ the two appraisers fail to ~~give notice~~ agree on a third appraiser, both appraisers shall be dismissed and the matter shall be submitted to arbitration under the Judicial Arbitration and Mediation Service ("JAMS"), but based on the same procedures set forth herein, however, in the event that the Property association recorded covenants and restrictions requires such matter to be determined in another manner, then the parties agree to do so. (c) The three appraisers shall reach a decision within thirty (30) days of the appointment of the third appraiser and shall promptly notify Landlord and Tenant of such ~~designation~~ determination. The decision of the majority of the three appraisers shall be binding upon the parties. (d) If any party shall fail to appoint an appraiser within ~~10 business days after~~ the ~~Outside Date~~time period set forth above, the other party shall provide ~~an additional~~ written notice to the non-performing party regarding such failure, and in the event such non-performing party ~~requiring such party’s appointment~~ fails to appoint an appraiser within five (5) Business Days of ~~an arbitrator within 10 business days after~~ receipt of such ~~second~~ notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the ~~two arbitrators~~ appraiser appointed by one of them shall ~~promptly designate a third arbitrator. If~~ appoint another appraiser under the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions requirements of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2sub-~~year period) either Landlord or Tenant~~section iii. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Lease Agreement (Griffin Capital Essential Asset REIT II, Inc.)

Option to Extend. The Landlord covenants and agrees with the Tenant that if the Tenant duly and punctually observes and performs the covenants, agreements, and provisos in this Lease on the part of the Tenant to be observed and performed, the Landlord will, at the expiration of the Term and upon the Tenant's written request delivered to the Landlord in accordance with clause 16.4 not later than six (6) months prior to and not earlier than twelve (12) months prior to the expiration of the Term, grant to the Tenant an extension of the term of the lease of the Premises for a further period of three (3) years (the "Extended Term") upon all the terms, covenants, agreements, and provisos contained in this Lease except for this right of renewal, and except for the Annual Basic Rent payable during the Extended Term, which shall be the prevailing fair market rate for the Premises as of the commencement of the Extended Term having regard to premises of similar size, quality of improvements, use and location, and if the Landlord and the Tenant have not mutually agreed on the amount of such Annual Basic Rent at least two months prior to the commencement of the Extended Term such Annual Basic Rent shall be decided by binding arbitration pursuant to the Commercial Arbitration Act of British Columbia, but in any event the Annual Basic Rent payable during the Extended Term shall not be less than that paid during the last year of the initial Term of this Lease. Until the Annual Basic Rent has been determined as provided herein, the Tenant shall continue to pay the monthly Annual Basic Rent payable during the last year of the Term as well as Additional Rent. The Landlord and the Tenant acknowledge and agree that, by this clause, the Tenant is only given the option of renewing the Term for one Extended Term, and at the expiration of the Extended Term there shall be no further right of renewal. If the Landlord and the Tenant have ~~one~~ failed to agree as to the Annual Basic Rent payable for the Premises with respect to the Extended Term by the date specified above, the determination of such Annual Basic Rent shall be referred to a single arbitrator pursuant to the provisions of the Commercial Arbitration Act of British Columbia for determination in accordance with the foregoing, and the provisions of this section shall be deemed to be a submission to arbitration within the provisions of the Commercial Arbitration Act and any statutory modifications or reenactment thereof. Failure of the Tenant to exercise its option to extend the Term of this Lease (the “Extension Option”) for one additional period of 7 years (the “Extension Term”) on the terms and conditions of this Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with ~~Section 3.2.2 below~~the foregoing shall render such option null and void and incapable of exercise. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Assignment and Assumption Agreement (Source Interlink Companies Inc)

Option to Extend. 34.1 Tenant ~~shall have one option~~ has the right to extend the ~~Term~~ term of this Lease for two (2) five (5) year periods under the ~~“Extension Option”) for one additional period of 7 years (the “Extension Term”) on the~~ same terms and conditions existing in the original Lease (except for Basic Annual Rent) by Tenant giving written notice to Landlord (“Notice of ~~this Section 3.2~~Exercise”) no later than twelve (12) months prior to the end of the then current term (“Extension Periods”). The ~~Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise~~ Basic Annual Rent for the Extension ~~Option by delivering written notice~~ Periods shall be equal to ninety-five percent (~~a “Notice to Extend”~~95%) of ~~its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be~~ the fair market value for rental ~~rate~~ of the Premises (~~the~~ “~~Prevailing Rental Rate~~Market Rent”) at measured nine (9) months prior to the commencement of ~~the~~ any Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been madePeriod. Within 30 ten (10) days after ~~receiving Tenant’s~~ a Notice ~~to Extend~~of Exercise, Landlord shall ~~deliver to Tenant written notice (~~propose a Market Rent from which the ~~“PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate~~Basic Annual Rent for an Extension Period will be calculated. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not ~~accept~~ approve of Landlord’s ~~determination~~ proposed Market Rent, Tenant shall provide Landlord a counter-proposal of ~~the Prevailing Rental Rate~~ Market Rent within 30 ten (10) days after receipt of Landlord’s ~~PRR Notice as provided in Section 3.2.1~~initial proposal. If the parties cannot agree on a Market Rent within ten (10) days after Tenant’s initial counter-proposal, ~~the Prevailing~~ then Market Rent ~~Rate~~ shall be determined ~~as follows. Tenant~~ by the procedure set forth in Section 34.2. 34.2 If the parties cannot agree on Market Rent pursuant to Section 34.1, then the Market Rent of the Premises shall ~~submit to Landlord, within 30~~ be established promptly thereafter by the following appraisal method: Within ten (10) days after ~~receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination~~ failure of the ~~Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations,~~ parties to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension TermMarket Rent, Landlord and Tenant shall ~~execute~~ each appoint an ~~amendment~~ appraiser to appraise the rental value of the Premises based on the terms set forth in this Lease ~~extending~~ (“Appraisal”) by delivering the ~~Term~~ appraiser’s name to the other party. Each appraiser shall be an MAI appraiser with at least ten (10) years experience appraising rental values of similar properties in San Diego County, California (“Qualified Appraiser”). Failure by either party to timely appoint a Qualified Appraiser shall be deemed an acceptance of the other party’s most recently delivered proposed Market Rent, but only after written notice to such party of such party’s failure to appoint a Qualified Appraiser and ~~adjusting~~ ten (10) days have elapsed after the ~~Net~~ date of such written notice with such failure to appoint continuing. Each party’s Qualified Appraiser shall perform an Appraisal of the Premises and each party’s Qualified Appraiser shall deliver such appraisal to the other Qualified Appraiser and the other party on the fifteenth (15th) calendar day after the last Qualified Appraiser was appointed. If each Appraisal is timely provided and the Market Rent to set forth in the lower of the two Appraisals is at least ninety-five percent (95%) of the higher appraisal, then the Market Rent of the Premises shall be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise average of the ~~Extension Option.~~two (2)

Appears in 1 contract

Samples: Purchase Agreement (Ligand Pharmaceuticals Inc)

Option to Extend. ~~Tenant~~ Provided the LESSEE is not in material default hereunder after any notice and grace periods. LESSEE shall have one (1) five (5) year option to extend the ~~Term~~ lease term at a rent equal to the greater of ~~this~~ the following: (a) market rate for equivalent lab space in similarly located buildings in Lexington within one (1) mile of the Leased Premises (including, without limitation, taking into consideration the age and condition of the building) ("Market Rate"); or (b) the rent then in effect as of the expiration date of the then current lease term. In no event shall the rent for the option term be less than the current total rent at the end of the initial term. LESSEE must give LESSOR written notice it is exercising its extension option no later than nine (9) months prior to the expiration of the then cu rent lease term. If LESSEE notifies LESSOR as provided herein. LESSOR shall notify LESSEE of its good faith estimate of the Market Rate for the extended tetra; then within thirty (30) days of receiving the LESSOR'S Market Rate for the extended term the LESSEE shall either: (1) deliver a written notice accepting the rent rate, and thereafter the parties shall fully execute a Lease amendment within thirty (30) days from the ~~“Extension Option”) for one additional period of 7 years (~~date the ~~“Extension Term”)~~ LESSOR receives LESSEE'S written notice accepting the rent rate, which lease amendment shall be on the same terms and conditions of as the Lease Agreement except as otherwise provided in this ~~Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018,~~ Paragraph 26 and ~~end on March 31, 2025. Tenant may exercise~~ except that the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term base rent shall be the ~~fair market rental rate~~ Market Rate and the lease term shall be extended by five (5) years; or (2) deliver a written notice disagreeing with the ~~“Prevailing Rental Rate”) at~~ LESSOR'S Market Rate for the ~~commencement~~ extended term, said notice to include LESSEE'S good faith estimate of the ~~Extension Term,~~ Market Rate for ~~extensions of space of equivalent quality, size, utility~~the extended term, and ~~location in~~ the ~~Mendota Heights area, talking into account~~ LESSOR and LESSEE shall attempt to agree upon the ~~terms~~ rent rate using their best good-faith efforts. If LESSOR and LESSEE fail to reach an agreement within thirty (30) days following LESSOR'S receipt of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant LESSEE'S above-mentioned written notice of disagreement (~~the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord~~"Outside Agreement Date"), within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): then: (i) ~~advising Landlord that Tenant disagrees with Landlord’s determination~~ LESSOR and LESSEE shall each appoint, at their own cost and expense, within ten (10) business days of the ~~Prevailing Rental~~ Outside Agreement Date, one arbitrator who shall by profession be a current commercial real estate broker or appraiser of comparable properties in Lexington within one (1) mile from the Leased Premises, and who has been active in such field over the last five (5) years. The two (2) arbitrators shall confer and within thirty (30) days from the date the last arbitrator was appointed, shall each recommend a Market Rate in writing to both parties. In the ~~PRR Notice~~event their recommendation is joint or equal, then this recommendation shall be the rent rate for the extended terra; and (ii) ~~proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on~~ In the ~~Prevailing Rental Rate on or before~~ event the ~~date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other~~ arbitrators recommendation of the ~~name and address of an arbitrator designated~~ Market Rate differs by five percent (5%) or less, then the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate average shall be ~~final~~ the rent rate for the extended team; and ~~binding upon Landlord and Tenant. If~~ (iii) In the ~~two~~ event the arbitrators ~~fail to agree on the Prevailing Rental Rate~~ recommendation differs by ~~the end of the 10-business day period~~more than five percent (5%), then the two arbitrators ~~shall promptly designate~~ so appointed shall, within five (5) business days of the date of the last written recommendation, agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two arbitrators. The third arbitrator shall, within fifteen (15) days after his/her appointment, recommend a Market Rate in writing to both parties, and the two (2) closest of the three (3) recommendations shall then be averaged to establish the rent rate for the extended term: and (iv) If either LESSOR or LESSEE fails to appoint an arbitrator within ten (10) business days after the applicable Outside Agreement Date, the arbitrator appointed by one of them shall reach a decision, notify LESSOR and LESSEE thereof, and such arbitrator. 's decision shall be binding upon LESSOR and LESSEE; and (v) If the two arbitrators fail to agree upon ~~the designation of~~ and appoint a third ~~arbitrator within 10 business days~~arbitrator, or both parties fail to appoint an arbitrator, and this matter has not been otherwise resolved, then ~~either party may apply to~~ the ~~American Arbitration Association or any successor having jurisdiction for the designation~~ appointment of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be ~~binding upon Landlord~~ made by the American Arbitration Association (or, if not available, an equivalent arbitration association) subject to the instructions set forth in this Paragraph 26; and ~~Tenant.~~ (vi) The cost of arbitration, as well as the above-mentioned third ~~arbitrator~~ arbitrator, shall ~~have~~ be paid by LESSOR and LESSEE equally; and (vii) Notwithstanding the above, in no ~~right to propose a middle ground~~ event shall the Market Rate or ~~any modification of either~~ rent for the option term be less than the current total rent at the end of the ~~determinations proposed by~~ initial term. In the ~~original two arbitrators. Each party shall bear~~ event the ~~cost of~~ rent for the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate option term is being established in accordance with ~~this Section 3.2.2~~ Paragraph 26(2) above, then the parties shall fully execute a lease amendment within thirty (30) days from the date the rent rate is established in accordance with the above, which lease amendment shall be ~~final~~ on the same terms and ~~binding~~ conditions as the Lease Agreement except as otherwise provided in ~~fixing~~ this Paragraph 26 and except that the ~~Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators~~ base rent shall be ~~real estate brokers with at least 5~~ the Market Rate and the lease term shall be extended by five (S) years ~~of continuous experience in~~ front the ~~business of acting as real estate agents or brokers with respect~~ date the Lease Agreement would have expired had the option to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and extend not been exercised. LESSEE shall be responsible for all ~~of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following:~~ payments necessary to maintain a security deposit equivalent to one (1) ~~either~~ month's base rent. All other terms and provisions under the Lease Agreement, as amended, shall continue through the extended lease term. In the event the LESSEE does not provide payment or has not delivered an executed lease amendment or written notice as provided in this ~~Lease or Tenant’s right to possession of the Premises is terminated;~~ Paragraph 26 and subparagraphs (1) and (2) ~~Tenant fails~~ above, the LESSEE shall be deemed to ~~timely exercise~~ have waived its option to extend the ~~Extension Option, time being~~ lease term and this Lease Agreement shall terminate upon the expiration of the ~~essence with respect~~ then current term. Notwithstanding the above, LESSEE accepts the Leased Premises in its current "AS IS" condition and acknowledges that the Leased Premises are currently occupied by the LESSEE and that the Leased Premises, as delivered and currently constituted, is suitable for the LESSEE'S intended use. LESSEE acknowledges that all work, if any, contemplated in the Lease Agreement and this First Amendment to ~~Tenant’s exercise; or (3) an uncured Event of Default exists at~~ the ~~time Tenant delivers~~ Lease Agreement, including but not limited to the ~~Notice~~ Exhibit B thereto, to ~~Extend. 3.2.4 If Tenant exercises~~ be performed by the ~~Extension Option, then, on or before~~ LESSOR has been completed to the ~~commencement date~~ full satisfaction of the ~~Extension Term~~LESSEE. The Parties acknowledge that the Lease Agreement and this First Amendment represent the entire agreement between the Parties and that no other modification, ~~Landlord~~ written or otherwise, exists between the Parties. The normal rule of construction that any ambiguities be resolved against the drafting party shall not apply to the interpretation of the Lease Agreement or this First Amendment or any exhibits or amendments thereto. All other terms and ~~Tenant~~ provisions wider the Lease Agreement shall ~~execute an amendment~~ remain unchanged, are in full force and effect, and are hereby ratified and affirmed. LESSOR and LESSEE hereby acknowledge and confirm that, to the best of their respective knowledge, neither the LESSOR nor the LESSEE is in default of any other term or condition of the Lease Agreement. In the event of a conflict between this First Amendment and the Lease ~~extending~~ Agreement, the ~~Term and adjusting the Net Rent to be the Prevailing Rental Rate~~terms of this First Amendment shall govern. ~~Tenant~~ All capitalized terms used but not defined herein shall have ~~no further extension or renewal option other than~~ the ~~Extension Option except pursuant~~ same definitions ascribed to ~~an express written agreement by Landlord executed and delivered after~~ such terms in the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension OptionAgreement.

Appears in 1 contract

Samples: Commercial Lease (Synta Pharmaceuticals Corp)

Option to Extend. ~~Tenant~~ The Lessee shall have ~~one option~~ the right to further extend the term hereinbefore stated of the Leases for the following three (3) consecutive three-year terms: (i) February 1, 2001 to January 31, 2004, (ii) February 1, 2004 to January 31, 2007, and (iii) February 1, 2007 to January 31, 2010, all of which, up and until January 31, 2010, upon the same terms and conditions as those found in the relevant Leases, mutatis mutandis, save for rent, which shall be at fair market rental, determined in accordance with this Section 4. (a) In order to exercise any said extension option, the Lessee shall give written notice to the Lessor at least six (6) months prior to the expiry of the then current term, of its intention to extend the ~~Term~~ term for a further three (3) years. The date of ~~this Lease~~ the giving of such notice shall be hereinafter referred to as the "Exercise Date". (b) Following the ~~“Extension Option”) for one additional period of 7 years (the “Extension Term”)~~ Exercise Date, Lessor and Lessee shall in good faith attempt to agree on the ~~terms~~ fair market rental. If Lessee and ~~conditions of this Section 3.2. The Extension Term shall commence~~Lessor are unable to agree upon such fair market rental, ~~if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice~~ then within fifteen (~~a “Notice to Extend”~~15) ~~of its exercise~~ days of the ~~Extension Option~~ Exercise Date, Lessee and Lessor shall jointly appoint a real estate appraisal firm based in Montreal with at least five (5) years experience in appraising commercial real estate (an "Appraiser") to ~~Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during~~ determine such fair market rental. Lessee and the ~~Extension Term shall be~~ Lessor agree that the Appraiser in making its appraisal of the fair market rental ~~rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking~~ shall take into account the terms of ~~this Lease~~the Leases, including the triple net nature thereof, the ~~length~~ condition of the ~~Extension Term~~Leased Premises, the rent payable for premises similar to the Leased Premises having regard to the nature, location and usage of the Leased Premises and all other ~~relevant~~ appropriate factors~~, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made~~. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate The fair market rental shall be determined ~~in accordance with Section 3.2.2 below~~by such Appraiser within ninety (90) days of the Exercise Date. ~~3.2.2~~ (c) If ~~Tenant does~~ Lessor and Lessee cannot ~~accept Landlord’s determination~~ jointly agree on an Appraiser, then within twenty (20) days of the ~~Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1~~Exercise Date, ~~the Prevailing Rent Rate~~ each shall appoint an Appraiser. Both appraisals shall be ~~determined as follows. Tenant shall submit~~ completed and delivered simultaneously to ~~Landlord, within 30 days after receiving~~ Lessor and Lessee on the ~~PRR Notice, a notice~~ fiftieth (50th) day following the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental RateExercise Date. If ~~Landlord and Tenant fail~~the higher appraisal is less than 5% greater than the lower appraisal, ~~despite good-faith negotiations, to agree on~~ then the ~~Prevailing Rental Rate on or before~~ fair market rental shall be the ~~date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other~~ average of ~~the name and address of an arbitrator designated by the party giving such notice~~both appraisals. If ~~either party fails to give notice of such designation~~ the higher appraisal is more than 5% greater than the lower appraisal, then within ~~10 business~~ sixty-five (65) days ~~after~~ following the ~~Outside~~ Exercise Date, the ~~other party~~ Appraisers shall ~~provide~~ jointly select another Appraiser to make an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination appraisal of the ~~Prevailing Rental Rate alone. If two arbitrators have been designated~~fair market rental, ~~both arbitrators shall,~~ which shall be completed and delivered to Lessor and Lessee within ~~10 business~~ ninety (90) days following the ~~designation of the second arbitrator~~Exercise Date. In this last case, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate fair market rental shall be ~~final and binding upon Landlord and Tenant. If~~ the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out average of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. closest appraisals. (d) Each party shall bear the cost of the ~~arbitrator it selects~~Appraiser selected solely by such party. All costs of any Appraisers jointly selected by Lessor and Lessee shall be borne equally by Lessor and Lessee. The ~~remaining cost of~~ fair market rental determined by (i) the ~~arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate~~ sole jointly elected Appraiser in accordance with ~~this~~ Section ~~3.2.2~~ 4(b) or (ii) by averaging certain appraisals pursuant to Section 4(c) shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers on Lessor and Lessee with respect to ~~comparable commercial office buildings~~ the three year renewal term in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenantquestion. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Lease Addendum (Hasbro Inc)

Option to Extend. Subject to the terms of this Paragraph 35 and Paragraph 36 below, entitled "Options", Landlord hereby grants Tenant ~~shall have~~ a one time option to extend the Term ~~of this Lease~~ (~~the “Extension Option”~~"Option to Extend") for ~~one~~ an additional period of 7 three (3) years (the ~~“Extension Term”) on~~ "Option Period"). Tenant's Option to Extend shall be for a term that shall begin immediately following the ~~terms~~ initial Term and ~~conditions of this Section 3.2. The Extension Term~~ shall ~~commence, if at all, on April 1, 2018, and end on March 31, 2025.~~ be exercised by Tenant ~~may exercise the Extension Option~~ by ~~delivering~~ giving written notice to Landlord at least six (~~a “Notice~~ 6) months but not earlier than nine (9) months prior to ~~Extend”) of its exercise~~ the expiration of the ~~Extension~~ initial Term. If Tenant exercises its Option to Landlord ~~not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term~~ shall be provide Tenant with written notice of the fair market rental rate for the Premises, including all appropriate rental concessions, not later than thirty (30) days after the ~~“Prevailing Rental Rate”) at~~ date upon which Tenant timely exercises the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made right giving rise to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as followsnecessity for such fair market rental rate determination. Tenant shall have twenty (20) days ("Tenant's Review Period") after receipt of Landlord's notice of the fair market rental rate within which to accept such fair market rental rate or to reasonably object thereto in writing. If within Tenant's Review Period, Tenant objects to the fair market rental rate submitted by Landlord, Landlord and Tenant will meet together with their respective advisors to present and discuss their individual determinations of the fair market rental rate for the Premises under the parameters set forth above and shall diligently and in good faith attempt to negotiate a rental rate on the basis of such individual determinations. Such meeting shall occur no later than ten (10) days after the expiration of Tenant's Review Period. The parties shall each provide the other with such supporting information and documentation as they deem appropriate. At such meeting if Landlord and Tenant are unable to agree upon the fair market rental rate, they shall each submit to ~~Landlord, within 30 days after receiving~~ the ~~PRR Notice, a notice (~~other their respective best and final offer as to the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Ratefair market rental rate. If Landlord and Tenant ~~fail, despite good-faith negotiations,~~ fail to ~~agree~~ reach agreement on ~~the Prevailing Rental Rate on or before the date~~ such fair market rental rate within five (5) business days following such a meeting (the “"Outside Agreement Date”") ~~that is 30 days after Landlord receives~~ then, Tenant's Option to Extend will be deemed null and void unless Tenant demands appraisal, in which event each party's best and final determination of the ~~PRR Objection Notice,~~ fair market rental rate for the Premises be submitted to appraisal in accordance with the following: (i) Landlord and Tenant shall each appoint one appraiser who shall ~~give notice~~ by profession be an MAI certified real estate appraiser who shall have been active over the five (5) year period ending on the date of such appointment in the appraisal of commercial properties in the West Los Angeles/Santa Monica, California area. The determination of the appraisers shall be limited solely to the ~~other~~ issue of whether Landlord's or Tenant's last proposed (as of the ~~name~~ Outside Agreement Date) best and ~~address of an arbitrator designated~~ final fair market rental rate for the Premises is the closest to the actual fair market rental rate for the Premises as determined by the ~~party giving~~ appraisers, taking into account the requirements of this subparagraph (i). Each such ~~notice. If either party fails to give notice of such designation~~ appraiser shall be appointed within ~~10 business~~ fifteen (15) days after the Outside Agreement Date, . (ii) The two appraisers so appointed shall within fifteen (15) days of the ~~other party shall provide an additional notice to such party requiring such party’s~~ date of the appointment of ~~an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period,~~ the ~~first arbitrator chosen~~ last appointed appraiser agree upon and appoint a third appraiser who shall ~~make~~ be qualified under the ~~determination~~ same criteria set forth hereinabove for qualification of the ~~Prevailing Rental Rate alone. If~~ initial two ~~arbitrators have been designated, both arbitrators shall,~~ appraisers. (iii) The three appraisers shall within ~~10 business~~ thirty (30) days ~~following the designation~~ of the ~~second arbitrator, make their determination~~ appointment of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to third appraiser reach ~~agreement~~ a decision as to whether the ~~determination~~ parties shall use Landlord's or Tenant's submitted best and final fair market rental rate to establish the new (iv) The decision of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end majority of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator three appraisers shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties . (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year periodv) If either Landlord or Tenant fails to appoint an appraiser within the time period specified in subparagraph (i) hereinabove, the appraiser appointed by one of them shall within thirty (30) days following the date on which the party failing to appoint an appraiser could have last appointed such appraiser, reach a decision based upon the procedures set forth above (i.e., by selecting either Landlord's or Tenant's submitted best and final fair market rental rate), notify Landlord and Tenant thereof, and such appraiser's decision shall be binding upon Landlord and Tenant. ~~3.2.3 The Extension Option~~ (vi) If the two appraisers fail to agree upon and ~~all~~ appoint a third appraiser, both appraisers shall be dismissed and a third appraiser shall be appointed by the Superior Court of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension OptionLos Angeles County, ~~time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend~~California. ~~3.2.4 If Tenant exercises the Extension Option~~(vii) The cost of appraisal (and, ~~then~~if necessary, ~~on or before the commencement date of the Extension Term,~~ arbitration) shall be paid by Landlord and Tenant equally. (viii) If the process described hereinabove has not resulted in a selection of either Landlord's or Tenant's submitted best and final fair market rental rate by the commencement of the applicable lease term, then the fair market rental rate estimated by Landlord will be used until the appraiser(s) reach a decision, with an appropriate rental credit and other adjustments for any overpayments of Monthly Base Rent or other amounts if the appraisers select Tenant's submitted best and final estimate of the fair market rental rate. The parties shall ~~execute~~ enter into an amendment to this Lease ~~extending~~ confirming the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise terms of the ~~Extension Option~~decision.

Appears in 1 contract

Samples: Office Lease (Lightspan Partnership Inc)

Option to Extend. Section 6 of the Ninth Amendment is hereby deleted in its entirety. Provided Tenant is not in Default of any term or condition of the Lease as of the date of exercise or the commencement of the applicable Renewal Term, Tenant shall have ~~one~~ the option to ~~extend~~ renew the ~~Term~~ term of ~~this~~ the Lease as to the entire Premises (~~the “Extension Option”~~as herein expanded) for ~~one~~ two (2) additional ~~period of 7 years~~ five (~~the~~ 5) year periods (each, a “~~Extension~~ Renewal Term”) ), on the same terms and conditions of ~~this Section 3.2~~the Lease, except that the Base Rent shall be adjusted to an amount equal to the then prevailing market rental rate for comparable leases for similar projects in Oakland’s Lake Xxxxxxx sub-market (but not less than the Base Rent in effect immediately prior to the commencement of the applicable Renewal Term). ~~The Extension Term~~ Such options shall ~~commence,~~ be exercised (if at all) by Tenant giving irrevocable written notice to Landlord at least nine (9) months prior to the expiration of the Second Extended Term, ~~on April 1~~or first Renewal Term, ~~2018~~as the case may be. The option shall be personal to the currently named Tenant and any affiliate assignee. The prevailing market rental rate shall be determined in the following manner: Prevailing market rental rate shall be determined taking into account all relevant factors, including (to the extent relevant) number of months of free rent, if any (which shall be part of the determination of the rental rate), tenant improvement obligations, moving allowances, and ~~end on March 31~~leasing commissions and costs. The term “comparable leases” shall not include leases entered into under special circumstances affecting the economics of the tenancies, ~~2025~~including following the exercise of options to lease space at other than then current prevailing market rate, the lease of awkward or unusually shaped space or space without windows or other usual amenities, leases entered into under conditions where the landlord was forced to lease the space by external legal, economic, or other pressures not generally applicable to the market, or the sublease of space by a sublandlord not primarily in the business of leasing space similar to the Premises. Prior to the date which is six (6) months before the expiration of the Second Extended Term or first Renewal Term, as the case may be, and assuming that Tenant has properly exercised its option to renew, Landlord shall give Tenant notice of Landlord's proposed prevailing market rental value for the Premises. Tenant ~~may exercise the Extension Option by delivering~~ shall give Landlord written notice within thirty (30) days thereafter as to whether or not Tenant agrees with Landlord's proposed prevailing market rental value. If Tenant disagrees with Landlord's proposed prevailing market rental value, the parties shall negotiate in good faith to resolve their differences for a ~~“Notice~~ period of thirty (30) days. Upon the expiration of such thirty day period, if the parties are not in agreement as to ~~Extend”) of its exercise of the Extension Option~~ such fair market rental value, then either party may initiate appraisal to ~~Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be~~ determine the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant value by giving written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of party, such notice containing the name ~~and address~~ of an ~~arbitrator designated~~ independent real estate broker or a person with an MAI designation with at least ten (10) years of experience in leasing commercial office space in the Oakland Lake Xxxxxxx submarket area (a “Qualified Appraiser”) appointed by such initiating party. Within fifteen (15) days thereafter, the party ~~giving~~ receiving such ~~notice. If either party fails to give~~ notice ~~of such designation within 10 business days after the Outside Date, the other party~~ shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing appoint its own Qualified Appraiser and give written notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as thereof to the ~~determination of the Prevailing Rental Rate~~initiating party. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business second Qualified Appraiser is not appointed within such fifteen day period, then the Qualified Appraiser selected by the initiating party shall determine the fair market rental value of the Premises, and such appraisal shall be binding upon the parties. If the second Qualified Appraiser is timely appointed, then the two ~~arbitrators~~ Qualified Appraisers shall ~~promptly designate a third arbitrator~~confer and attempt to agree on the prevailing market rental value. If the two ~~arbitrators fail~~ Qualified Appraisers are unable to ~~agree upon~~ agree, but the ~~designation~~ higher appraisal is no more than five percent (5%) higher than the lower appraisal, then the prevailing market rental value shall be the average of ~~a third arbitrator~~ the two appraisals. If the higher appraisal is more than five percent (5%) greater than the lower appraisal, the two Qualified Appraisers shall together, within 10 ten (10) business days, ~~then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The~~ select a third ~~arbitrator~~ Qualified Appraiser who shall ~~conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the~~ select one ~~determination out~~ of the ~~two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate~~Qualified Appraisers determined prevailing market rental value, and that ~~choice by the third arbitrator~~ determination shall be ~~binding upon Landlord~~ the prevailing market rental value. All appraisers shall be members of the MAI and ~~Tenant. The third arbitrator~~ shall have ~~no right to propose a middle ground or any modification of either of~~ at least ten (10) years' experience appraising similar property in the ~~determinations proposed by the original two arbitrators~~Oakland Lake Xxxxxxx sub-market area. Each party shall bear the cost of the ~~arbitrator it selects. The remaining~~ appraiser appointed by such party, and the parties shall share equally in the cost of the ~~arbitration shall be split evenly between~~ third appraiser, if appointed. If the ~~parties (and each~~ two appraisers initially appointed are unable to agree on a third appraiser, then either party shall ~~bear all of its own costs in connection with such arbitration). The determination~~ have the right to apply to the presiding judge of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant Superior Court having jurisdiction over the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise appointment of ~~the Extension Option~~a third appraiser.

Appears in 1 contract

Samples: Lease (Pandora Media, Inc.)

Option to Extend. Upon expiration of the primary term of this Lease, Tenant ~~shall have one~~ is granted an option to extend the ~~Term~~ term of this Lease ~~(the “Extension Option”)~~ for one (1) additional ~~period of 7 years~~ one hundred twenty (120) month period, (an "extension term") upon the ~~“Extension Term”) on the~~ same terms and conditions of as are included in this ~~Section 3.2. The Extension Term shall commence~~Lease, ~~if at all~~subject, ~~on April 1~~however, ~~2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice~~ to ~~Extend”) of its exercise~~ renegotiation of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location rent provided in ~~the Mendota Heights area, talking into account the terms~~ paragraph 4 of this Lease. The primary term and the extension terms will be collectively referred to in this Lease as the "term." Tenant shall notify Landlord within not less than one hundred twenty (120) days prior to the expiration of the primary term of this Lease or prior to the expiration of each extension term of Tenant's exercise of its option to extend this Lease, provided that in the circumstances described in paragraph 13, the ~~length of~~ options to extend the ~~Extension Term~~term may be exercised earlier as provided in paragraph 13, and ~~all other relevant factors~~if the option to extend is exercised earlier as provided in paragraph 13, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Ratenevertheless, the ~~Prevailing Rental Rate~~ rental payable as provided in paragraph 4 shall be determined at the time and in ~~accordance with Section 3.2.2 below. 3.2.2 If~~ the manner provided in paragraph 4 and this paragraph 3. During the following sixty (60) day period, Tenant ~~does not accept Landlord’s determination~~ and Landlord shall negotiate and arrive at an agreement or disagreement of the ~~Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1,~~ amount of rent to be paid during the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rateapplicable extension term. If Landlord and Tenant ~~fail, despite good-faith negotiations,~~ agree upon the rent to ~~agree on~~ be paid during the ~~Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice~~applicable extension term, Landlord and Tenant ~~each~~ shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by at the end of the ~~10-business~~ sixty (60) day ~~period, then~~ period enter into a new written lease or an amendment agreement setting forth the ~~two arbitrators~~ amount of rental Tenant shall ~~promptly designate a third arbitrator~~be required to pay pursuant paragraph 4 for the applicable extension term and any other additional terms to which Landlord and Tenant have agreed. If ~~the two arbitrators~~ Tenant and Landlord fail to agree upon the ~~designation~~ rent to be paid during the applicable extension term during the sixty (60) day period of negotiations, a ~~third arbitrator within 10 business days~~fair market appraisal comparison of comparable properties will be completed by an independent party upon which the Landlord and Tenant may use to negotiate the amount of rent to be paid during the applicable extension term. If Tenant and Landlord fail to agree upon the rent to be paid during the applicable extension term during the sixty (60) day period of negotiations, ~~then~~ either ~~party may apply~~ Landlord or Tenant may, by written notice to the ~~American Arbitration Association or any successor having jurisdiction for~~ other party given within the ~~designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall~~ensuing thirty (30) day period, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right elect to ~~propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of~~ invoke the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this ~~Lease. All arbitrators~~ Lease to determine the rent Tenant shall be ~~real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect~~ required to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pay pursuant to ~~an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises~~ paragraph 4 for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Optionapplicable extension term.

Appears in 1 contract

Samples: Lease Agreement (Rightnow Technologies Inc)

Option to Extend. Provided that Tenant ~~shall have one option~~ is not in default of the performance or observation of any of the terms or provisions of this Lease after notice to Tenant and expiration of applicable grace and cure periods (as defined in Section 7.1 herein), Tenant may elect to extend the Term of this Lease ~~(the “Extension Option”)~~ for one (1) additional period of 7 five (5) years (the “Extension Term”), by giving Landlord notice of such election no later than twelve (12) on months prior to the ~~terms~~ expiration of the initial Term. Such extension shall be upon the terms, covenants, and conditions of contained in this ~~Section 3.2. The Extension~~ Lease except that Tenant shall have no further right to extend the Term ~~shall commence, if at all, on April 1, 2018,~~ and ~~end on March 31, 2025. Tenant may exercise~~ that the ~~Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net~~ Base Rent ~~payable~~ for ~~each month during~~ the Extension Term shall be ~~the~~ at fair market rent for comparable space in comparable properties in the Watertown area taking into account all relevant factors. If Landlord and Tenant are unable to agree on the amount of such fair market rent by the date that is thirty (30) days after the date of Tenant’s election notice based on rental ~~rate~~ rates and terms for comparable space in the Greater Boston area, then Landlord shall promptly specify in writing the rent (the “~~Prevailing~~ Landlord’s Rental Rate”) at which Landlord is willing to lease the ~~commencement~~ Premises for the Extension Term and Tenant shall promptly specify in writing the rent ( the “Tenant’s Rental Rate”) which Tenant is willing to pay for the Premises for the Extension Term and the amount of the ~~Extension Term, for extensions of space of equivalent quality, size, utility, and location~~ fair market rent shall be established by appraisal in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been madefollowing manner. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If The Landlord and Tenant ~~fail, despite good-faith negotiations,~~ shall each appoint one appraiser and the two appraisers so appointed shall determine the fair market rent within thirty days of Tenant’s election notice. If such appraisers are unable to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice amount of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation fair market rent within such ~~second 10 business~~ 30-day period, ~~the first arbitrator chosen~~ they shall ~~make the determination~~ appoint a third appraiser within ten (10) days of the ~~Prevailing Rental Rate alone~~expiration of such period, who shall be instructed to select, as between the rents chosen by the two appraisers, the rent that is closest to the third appraiser’s estimate of Fair Market Rent. ~~If two arbitrators have been designated, both arbitrators shall, within 10 business days following~~ The fair market rent shall be the ~~designation of~~ amount so selected by the ~~second arbitrator, make their determination of~~ third appraiser and shall be conclusive on the ~~Prevailing Rental Rate in writing and give notice to each other and to~~ Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of its appraiser, and the ~~arbitrator it selects. The remaining~~ cost of the ~~arbitration~~ third appraiser shall be split ~~evenly~~ equally between ~~the parties (and each party shall bear all of its own costs in connection with such arbitration)~~parties. The ~~determination of the Prevailing Rental Rate in accordance with this Section 3.2.2~~ third appraiser’s estimate shall be ~~final~~ based on the data supplied and ~~binding in fixing~~ used by the ~~Prevailing Rental Rate. The arbitrators shall not have~~ original two appraisers and the ~~power to add to, modify, or change any of~~ findings made by the ~~provisions of this Lease. All arbitrators~~ third appraiser shall be ~~real estate brokers with at least 5 years of continuous experience~~ set forth in writing. EXECUTED as a sealed instrument in two or more counterparts on the ~~business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market~~day and year first above written. /s/ Xxxxx X. Xxxxxxxxx By: Xxxxx X. Xxxxxxxxx Its: Manager /s/ Xxxx Xxxxxxxx By: Xxxx Xxxxxxxx Its: Vice President, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension OptionCorporate Affairs, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.General Counsel & Secretary

Appears in 1 contract

Samples: Lease (pSivida Corp.)

Option to Extend. ~~Tenant shall have one~~ In the event and on the condition that Lessee has timely performed each and every, all and singular of the terms, covenants, and conditions of this Lease on Lessee's part to be performed, then Lessor hereby grants to Lessee the option to extend the ~~Term~~ term of this Lease for two (2) consecutive five (5) year periods commencing when the ~~“Extension Option”~~prior term expires upon each and all of the following terms and conditions: Lessee give to Lessor, and Lessor actually receives, on a date which is prior to the date that option period would commence (if exercised) by at least four (4) months and not more that seven (7) months, a written notice of the exercise of the option to extend this Lease for ~~one~~ said additional ~~period~~ term, time being of ~~7 years (~~the ~~“Extension Term”) on~~ essence. If said notification of the exercise of said option is not so given and received, this option shall automatically expire. All of the terms and conditions of this ~~Section 3.2~~Lease except where specifically modified by this option shall apply. The ~~Extension Term~~ initial base rent for the option period shall ~~commence~~be ninety-five percent (95%) of the prevailing market rate at the time of commencement of the option period, ~~if at all~~for comparable office space within the general market area. The term 'fair market rental rate' as used in this Addendum shall mean the annual amount per rentable square foot, ~~on April 1~~projected during the relevant period, ~~2018~~that a willing, comparable, non-equity tenant (excluding sublease and assignment transactions) would pay, and ~~end on March 31~~willing, ~~2025. Tenant~~ comparable landlord of a comparable quality office building located in the Anaheim Stadium area ('Comparison Area') would accept, at arm's length (what Lessor is accepting in current transactions for the building may ~~exercise~~ be considered), for space comparable in size, quality and floor height as the ~~Extension Option by delivering written notice (a “Notice to Extend”) of its exercise~~ lease area at issue taking into account the age, quality and layout of the ~~Extension Option~~ existing improvements in the leased area at issue and taking in account items that professional real estate brokers customarily consider, including but not limited to, rental rates, office space availability, tenant size, tenant improvement allowances, operating expenses and allowance, parking charges and any other lease economics than being considered by Lessor or the lessors of such similar office buildings. Lessor's determination of fair market rental rate shall be delivered to ~~Landlord~~ Lessee in writing not later than ~~April 1, 2017. 3.2.1 The Net Rent payable for each month during the~~ thirty (30) days following Lessor's receipt of Lessee's Extension ~~Term shall be~~ Notice. Lessee will have thirty (30) days ('Lessee's Review Period') after receipt of Lessor's notice of the fair market rental rate within which to accept such fair market rental rate or to object thereto in writing. Lessee's failure to object to the fair market rental rate submitted by Lessor in writing within Lessee's Review Period will conclusively be deemed Lessee's approval and acceptance thereof. if Lessee objects to the fair market rental rate submitted by Lessor within Lessee's Review Period, then Lessor and lessee will attempt in good faith to agree upon such fair market rental rate using their best good faith efforts. if Lessor and Lessee fail to reach agreement on such fair market rental rate with fifteen (15) days following the expiration of Lessee's Review Period (the ~~“Prevailing Rental Rate”) at the commencement of the Extension Term~~'Outside Agreement Date'), for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made then each party's determination will be submitted to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined appraisal in accordance with ~~Section 3.2.2~~ the provisions below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Standard Office Lease (Orange National Bancorp)

Option to Extend. If this Lease shall not have been previously terminated and if Tenant is not in default under the terms of this Lease as of the date Tenant exercises its option hereunder, then Tenant shall have ~~one~~ the option to extend the ~~Term~~ term of this Lease on the same terms and conditions (except for Base Rent) for one (1) additional term of five (5) years( “Option Term”) at the expiration of the existing Term. Said option may be exercised only by the delivery of written notice by Tenant to City at least one hundred eighty (180) days, but not more than three hundred sixty (360) days, prior to the expiration of the existing Term (the “~~Extension Option~~Tenant’s Option Election Notice”~~) for one additional period of 7 years (the “Extension Term”) on the terms and conditions of this Section 3.2~~). The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Base Rent ~~payable for~~ due each month during ~~the Extension~~ any Option Term shall be ~~the fair market rental rate~~ adjusted to (i) the “Prevailing Fair Market Rate” for the rental of movie theaters (“Renewal Rental Rate”) ~~at the commencement~~ or (ii) such other rental amount as may be agreed upon between Landlord and Tenant. Within one hundred eighty (180) days after receipt of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s ~~sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend~~Option Election Notice, Landlord shall deliver ~~to Tenant~~ written notice ~~(the “PRR Notice”) advising Tenant~~ of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Renewal Rental Rate ~~shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of~~ for the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice Option Term (the “~~PRR Objection~~ Option Rent Notice”~~): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate~~). If Tenant disputes such determination by Landlord ~~and~~ Tenant ~~fail, despite good-faith negotiations,~~ may elect to ~~agree on the Prevailing Rental Rate on or before the date~~ withdraw Tenant’s Option Election Notice within ten (~~the “Outside Date”~~10) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of ~~such second notice. If either party fails to give notice of such designation within such second 10 business day period,~~ the ~~first arbitrator chosen~~ Option Rent Notice and this Lease shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree terminate on the original Termination Date. For the purposes of this Section, “Prevailing ~~Rental~~ Fair Market Rate~~, that rate~~ ” shall be ~~final and binding upon Landlord and Tenant. If~~ the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience monthly base rent in the ~~business of acting~~ San Xxxx metropolitan area for leases with substantially similar terms and square footage as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to may be ~~the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement~~ reasonably determined by Landlord ~~executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term~~ in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with TenantLandlord’s ~~exercise of the Extension Option~~reasonable discretion.

Appears in 1 contract

Samples: Lease Agreement

Option to Extend. Provided that (a) this Lease is in full force and effect and there is no ongoing Event of Default at the time of notification or commencement, and (b) I-Therapeutix, Inc. or a Permitted Transferee shall then be in occupancy of at least 70% of the entire Premises under this Lease at the time of commencement, then Tenant shall have one (1) option to extend the Term of this Lease ~~(the “Extension Option”)~~ for ~~one additional~~ a period of ~~7 years~~ five (5) years, for the ~~“Extension Term”)~~ portion of the Premises being leased by Xxxxxx as of the date the extension term is to commence, on the same terms and conditions of this Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location set forth in ~~the Mendota Heights area, talking into account the terms of~~ this Lease, except as modified by the ~~length of~~ terms, covenants and conditions as set forth below: a. If Tenant elects to exercise said option, then Tenant shall provide Landlord with written notice no earlier than the ~~Extension Term, and all other relevant factors~~date which is twelve (12) months prior to the Termination Date, but ~~assuming that~~ no ~~improvements Tenant has made~~ later than the date which is nine (9) months prior to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental RateTermination Date. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely ~~exercise the Extension Option~~provide such written notice, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further or additional right to extend the Term of Lease. b. The Annual Rent and Monthly Installment of Rent in effect as of the day immediately preceding the Termination Date shall be increased to reflect the current fair market rental for comparable space in the Building and in other similar buildings in the same rental market as of the date the extension ~~or renewal option other~~ term is to commence, taking into account the specific provisions of this Lease which will remain constant; provided, however, in no event shall the Annual Rent and Monthly Installment of Rent for the extension term be less than the ~~Extension Option except pursuant to an express written agreement by Landlord executed~~ Annual Rent and ~~delivered after~~ Monthly Installment of Rent in effect as of the ~~Lease~~ day immediately preceding the Termination Date. Landlord shall ~~lease to~~ advise Tenant of the new Annual Rent and Monthly Installment of Rent for the Premises no later than thirty (30) days after receipt of Tenant’s written request therefor. Said request shall be made no earlier than sixty (60) days prior to the first date on which Tenant may exercise its option under this Article 40. Said notification of the new Annual Rent and Monthly Installment of Rent may include a provision for their escalation to provide for a change in fair market rental between the time of notification and the commencement of the extension term. If Tenant and Landlord are unable to agree on a mutually acceptable rental rate not later than sixty (60) days prior to the Termination Date, then Landlord and Tenant shall each appoint a qualified commercial real estate broker with at least ten (10) years experience doing business in the area, in turn those two (2) independent commercial real estate brokers shall appoint a third (3rd) independent commercial real estate broker with at least ten (10) years experience doing business in the area and the majority shall decide upon the fair market rental for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise Premises as of the ~~Extension Option~~Termination Date. Landlord and Tenant shall equally share in the expense of this appraisal except that in the event the Annual Rent and Monthly Installment of Rent is found to be within ten (10%) of the original rate quoted by Landlord, then Tenant shall bear the full cost of all the appraisal process. c. This option is not transferable; the parties hereto acknowledge and agree that they intend that the aforesaid option to extend this Lease shall be “personal” to I-Therapeutix, Inc. and its Permitted Transferees as set forth above and that in no event will any assignee or sublessee other than a Permitted Transferee have any rights to exercise the aforesaid option to extend.

Appears in 1 contract

Samples: Lease Agreement (Ocular Therapeutix, Inc)

Option to Extend. Landlord grants to Tenant ~~shall have one~~ an option (the “Option”) to extend the Term ~~of this Lease (the “Extension Option”)~~ for one ~~additional~~ (1) period of 7 five (5) years (the “~~Extension Term~~Extension”) on the same terms and conditions ~~of this Section 3.2. The Extension Term~~ as set forth in the Lease, except that the Base Monthly Rent shall ~~commence, if at all,~~ be adjusted on ~~April 1, 2018, and end on March 31, 2025. Tenant may exercise~~ the ~~Extension Option by delivering written notice (a “Notice to Extend”) of its exercise~~ first day of the Extension ~~Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate~~ (the “~~Prevailing Rental Rate~~Adjustment Date”) at to the ~~commencement~~ “fair rental value” of the Premises on the Adjustment Date as follows: (a) At least one hundred eighty (180) days before the Adjustment Date, Landlord and Tenant shall meet in an effort to negotiate, in good faith, the fair rental value of the Premises as of the Adjustment Date for the first year of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant ~~fail, despite good-faith negotiations, to agree on~~ have not agreed upon the ~~Prevailing Rental Rate on or~~ fair rental value of the Premises at least one hundred (100) days before the ~~date (the “Outside~~ Adjustment Date~~”) that is 30 days after Landlord receives the PRR Objection Notice~~, Landlord and Tenant shall attempt to agree in good faith upon a single appraiser not later than seventy-five (75) days before the Adjustment Date. If Landlord and Tenant are unable to agree upon a single appraiser within this time period, then Landlord and Tenant shall each appoint one (1) appraiser not later than sixty-five (65) days before the Adjustment Date. Within ten (10) days thereafter, the two (2) appointed appraisers shall ~~give notice to the other of the name and address of an arbitrator designated by the party giving such notice~~appoint a third appraiser. If either ~~party~~ Landlord or Tenant fails to ~~give notice of such designation~~ appoint its appraiser within ~~10 business days after~~ the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day prescribed time period, the ~~first arbitrator chosen~~ single appraiser appointed shall ~~make~~ determine the ~~determination~~ fair rental value of the ~~Prevailing Rental Rate alone~~Premises. If ~~two arbitrators have been designated,~~ both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators parties fail to ~~agree on~~ appoint appraisers within the ~~Prevailing Rental Rate by the end of the 10-business day period~~prescribed time periods, then the ~~two arbitrators~~ first appraiser thereafter selected by a party shall ~~promptly designate a third arbitrator. If~~ determine the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out fair rental value of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitratorsPremises. Each party shall bear the cost of its own appraiser, and the ~~arbitrator it selects. The remaining~~ parties shall share equally the cost of ~~the arbitration~~ a single or a third appraiser, if applicable. Each appraiser shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have ~~the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with~~ at least 5 ten (10) continuous years ~~of continuous~~ experience in the ~~business~~ appraisal of ~~acting as real estate agents or brokers with respect to comparable commercial office~~ Class A office/industrial buildings in ~~the southeastern Twin Cities market~~Los Angeles County, ~~exclusive~~ California and shall be a member of ~~any broker from any brokerage firm currently representing (~~one or ~~who had previously represented within the preceding 2-year period) either Landlord~~ more professional organizations such as MAI or ~~Tenant~~an equivalent. ~~3.2.3 The Extension Option~~ (b) For purposes of such appraisal, “fair rental value” shall mean the price that a ready and ~~all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any~~ willing tenant would pay, as of the ~~following: (1) either this Lease or Tenant’s right~~ Adjustment Date, as monthly rent to ~~possession~~ a ready and willing landlord of comparable commercial/industrial buildings for space comparable to the Premises ~~is terminated; (2) Tenant fails to timely exercise~~ in Commerce, California for the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date first year of the Extension Term, if that property were exposed for lease on the open market for a reasonable period of time with a lease comparable to the Lease and with tenant improvements comparable to those in the Premises (excluding the depreciated costs of any tenant improvements) and taking into account visibility and frontage on major streets. If a single appraiser is chosen, then such appraisal shall determine the fair rental value of the Premises. Otherwise, the fair rental value of the Premises shall be the arithmetic average of the two of the three appraisals which are closest in amount, and the third appraisal shall be disregarded. In no event shall the fair rental value be less than the Base Monthly Rent payable by Tenant during the calendar month immediately preceding the Adjustment Date, nor there be any rent concession or additional tenant improvement allowance for the Extension term. Landlord and Tenant shall ~~execute an amendment~~ instruct the appraiser(s) to ~~this Lease extending~~ complete their determination of the ~~Term and adjusting~~ fair rental value not later than thirty (30) days before the ~~Net Rent to be~~ Adjustment Date. If the ~~Prevailing Rental Rate.~~ fair rental value is not determined before the Adjustment Date, then Tenant shall ~~have no further extension or renewal option other than~~ continue to pay to Landlord the ~~Extension~~ monthly rent in effect immediately prior to such Extension, until the fair rental value is determined. When the fair rental value of the Premises is determined, Landlord shall deliver notice of that amount to Tenant, and Tenant shall pay to Landlord, within ten (10) days after receipt of such notice, the difference between the monthly rent actually paid by Tenant to Landlord and the new monthly rent determined under this Section 32. (c) On the first anniversary of the Adjustment Date and every twelve (12) months thereafter, the Base Monthly Rent shall increase every twelve (12) months by three percent (3.0%), calculated by multiplying the Base Monthly Rent then in effect by 1.03. (d) The Option ~~except pursuant to an express~~ shall be exercised only by written ~~agreement~~ unconditional notice received by Landlord ~~executed and delivered after~~ at least two hundred seventy (270) days before expiration of the ~~Lease Date~~Original Term. ~~Landlord shall lease to Tenant~~ Time is of the ~~Premises for the Extension Term~~ essence in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s delivery of such notice. If Landlord does not timely receive Tenant’s written unconditional notice of the exercise of the ~~Extension~~ Option, the Option under this Section 32 shall immediately lapse, and there shall be no further right to extend the Original Term or to the Extension. The Option shall be exercisable by Tenant on the express condition for Landlord’s benefit that no Tenant Default exists either at the time of the exercise of the Option or at the commencement of the Extension. If Tenant timely exercises the Option under this Section 32, “Term” shall mean, for all purposes under the Lease, the sum of (i) the Original Term, plus (ii) the term of the Extension. Tenant’s election to exercise the Option shall be deemed an acceptance of the Building and the Premises in their then “as is” condition. (e) The Option is personal to Tenant and to any Tenant Affiliate that is an assignee of the Lease. In the event of any assignment or sublease of Tenant’s interest in the Lease before the permitted exercise of the Option other than to a Tenant Affiliate that is an assignee of this Lease, the Option shall not be transferred to any such transferee but shall instead automatically lapse.

Appears in 1 contract

Samples: Multi Tenant Industrial Lease (Metropark Usa Inc)

Option to Extend. So long as Tenant is not in material default under the terms of the Lease, Tenant shall have ~~one option~~ the right to extend the ~~Term~~ term of ~~this~~ the Lease for two (2) additional terms of five (5) years each (the “"Extension ~~Option”~~Terms"). Tenant agrees to notify Landlord in writing of Tenant's intent to renew at twelve (12) ~~for one additional period~~ months prior to the termination of ~~7 years (~~the ~~“Extension Term”) on the terms and conditions of this Section 3.2~~then current lease term. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month rental rate during the Extension ~~Term~~ Terms shall be equal to the ~~fair market rental rate~~ then Fair Market Rental Rate (adjusted for lease concessions) for comparable space located in Lower Xxxxx Xxxx, Seattle, Washington. Within thirty (30) days following Tenant's notice to Landlord of Tenant's desire to extend the ~~“Prevailing~~ Lease, Landlord shall notify Tenant of the proposed Extended Term Base Rent, which shall be equal to the then Fair Market Rental ~~Rate”) at~~ Rate of the Premises. Fair Market Rental Rate shall be defined as the annual Base Rent (projected from the date of the commencement of the ~~Extension Term, for extensions~~ payment of annual rental to which it applies) which Tenant would expect to pay and Landlord would expect to receive under leases of space of ~~equivalent quality, size, utility,~~ comparable size and ~~location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made~~ quality to the Premises ~~at Tenant’s sole expense~~ and as provided for in and on terms and conditions comparable to, this Lease covering premises similar to the Premises. Tenant shall have thirty (~~in other words, without reimbursement through any allowance or credit~~30) ~~had been made. Within 30~~ days ~~after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant~~ following receipt of Landlord~~’s determination~~ 's notice of the ~~Prevailing~~ proposed Extended Term Base Rent, in which to accept such determination; or to agree with Landlord on a stipulated Fair Market Rental Rate. ~~Unless~~ If Tenant ~~delivers to~~ notifies Landlord, within 30 the aforesaid thirty (30) day period, that Tenant disputes the Prevailing Market Rate quoted by Landlord, the parties shall, during the following thirty (30) days, negotiate in good faith to determine the Annual Base Rent for the renewal Term. If within said thirty-day period the parties are unable to agree on the Annual Base Rent, then within ten (10) days ~~after receiving~~ thereafter, each party shall select a qualified appraiser experienced in appraising commercial rental properties in the ~~PRR Notice, a written acceptance of Landlord’s determination~~ vicinity of the ~~Prevailing Rental Rate~~Building, who shall submit appraisals for the Premises within thirty (30) days of their appointment. If the difference between the appraisals is five percent (5%) or less, the Prevailing ~~Rental~~ Market Rate shall be determined ~~in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination~~ to be the average of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rateappraisals. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day perioddifference is greater than five percent (5%), then the two ~~arbitrators~~ appraisers shall ~~promptly designate~~ select a third ~~arbitrator. If~~ qualified appraiser who shall submit an appraisal within the ~~two arbitrators fail to agree upon~~ thirty (30) days following the ~~designation~~ submission of ~~a third arbitrator within 10 business days, then either party may apply to~~ the ~~American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator~~first appraisals. The ~~third arbitrator~~ Prevailing Market Rate shall ~~conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose~~ then be the ~~one determination out~~ average of the two ~~determinations~~ (2) closest appraisals. The fees of each appraiser shall be paid by the ~~two arbitrators originally selected~~ party appointing the appraiser and the fees of the third appraiser, if any, shall be shared equally by the ~~parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator~~ parties. The option shall be ~~binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification~~ void if, at the time of ~~either~~ exercise of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs such option, Tenant is not in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises or is ~~terminated; (2)~~ in default under this Lease or if Tenant fails to ~~timely exercise~~ deliver the ~~Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at~~ requisite notice thereof within the time ~~Tenant delivers the Notice to Extend~~period specified above. The option granted herein shall not be severed from this Lease, separately sold, assigned, or transferred. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Office Lease Agreement (F5 Networks Inc)

Option to Extend. 40.1 Landlord grants to Tenant ~~shall have one option~~ the right to extend the ~~Term~~ term of this Lease for two (2) periods of two (2) years under the same terms and conditions existing in the original Lease except as set forth in this Article 40. Tenant shall exercise such right to extend the term of this Lease by written notice to Landlord no later than twelve (12) months prior to the end of the original term. 40.2 Basic Annual Rent shall be adjusted on the first day of the extension term to an amount equal to the fair market rental value of the Premises as of the commencement of the extension term, but in no event less than one hundred three percent (103%) of the Basic Annual Rent payable during the last year of the original term. 40.3 Landlord shall obtain at its expense and deliver to Tenant an independent appraisal of the fair market rental value of the Premises as of the commencement of the extension term. Following its receipt of Landlord’s appraisal, Tenant may elect to obtain at its expense and deliver to Landlord a second independent appraisal of the fair market rental value of the Premises as of the commencement of the extension term. If Tenant elects not to obtain a second appraisal, Landlord’s appraisal shall be conclusive. If Tenant’s appraisal is no more than five percent (5%) less than Landlord’s appraisal, the fair market rental value of the Premises shall be the arithmetic average of the two appraisals. If Tenant’s appraisal is more than five percent (5%) less than Landlord’s appraisal, the two appraisers shall appoint a third appraiser to appraise the fair market rental value of the Premises as of the commencement of the extension term, and the fair market rental value of the Premises shall be the arithmetic average of the two appraisals closest in their determination of fair market rental value, but in no event less than one hundred three percent (103%) of the Basic Annual Rent payable during the last year of the original term. Landlord and Tenant shall bear equally the expense of the third appraiser. 40.4 All appraisers appointed hereunder shall have at least ten (10) years’ experience in the appraisal of commercial and industrial real property in the UTC/Xxxxxx Xxxxx/Sorrento Valley areas of San Diego, and shall be members of professional organizations such as the American Appraisal Institute with a designation of MAI or equivalent. 40.5 As used herein, the term “~~Extension Option”~~fair market rental value of the Premises” shall mean the base rent that a ready and willing tenant would pay for the Premises, as of the commencement of the extension term, to a ready and willing landlord, for a term of two (2) ~~for one additional period of 7~~ years ~~(the “Extension Term”)~~ on the terms and conditions of ~~this Section 3.2. The Extension Term shall commence~~the Lease, determined as if ~~at all,~~ the Premises were exposed for lease on ~~April 1, 2018,~~ the open market for a reasonable period of time and ~~end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise~~ taking into account all of the ~~Extension Option~~ purposes for which such property may be used. Any appraiser appointed hereunder to ~~Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during~~ determine the ~~Extension Term shall be the~~ “fair market rental ~~rate~~ value of the Premises” shall take into account all of the other terms and conditions of this Lease, including, without limitation, that this Lease provides for the Basic Annual Rent to increase annually by three percent (3%) during the ~~“Prevailing Rental Rate”) at~~ extension term. 40.6 Any increase in Basic Annual Rent under this Article 40 which is not determined until after the effective date of the increase shall nevertheless be retroactive to the effective date, and Tenant shall pay any such retroactive increase with the installment of Rent next due. 40.7 Basic Annual Rent as of the commencement of the ~~Extension Term, for extensions of space of equivalent quality, size, utility,~~ extension term as determined under this Article 40 (and ~~location in the Mendota Heights area, talking into account the terms of this Lease, the length~~ as previously increased each year of the ~~Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made~~ extension term pursuant to ~~the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit~~this Section 40.7) ~~had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord~~ shall ~~deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination~~ be increased each year of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice extension term by three percent (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration3%). The ~~determination~~ first such increase shall become effective commencing with that monthly rental installment which is first due on or after the twelfth (12th) anniversary of the ~~Prevailing Rental Rate~~ Term Commencement Date and subsequent increases shall become effective on the same day of each calendar year thereafter for so long as this Lease continues in ~~accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators~~ effect. 40.8 Tenant shall not have the ~~power~~ right to ~~add to~~exercise the option to extend the term, ~~modify,~~ notwithstanding anything set forth above to the contrary: (a) during the time commencing from the date Landlord gives to Tenant a written notice that Tenant is in material default under any provision of this Lease and continuing until the default alleged in said notice is cured; (b) during the period of time commencing on the day after a monetary obligation to Landlord is due from Tenant and unpaid without any necessity for notice thereof to Tenant and continuing until the obligation is paid; or ~~change any of~~ (c) after the ~~provisions~~ expiration or earlier termination of this Lease. ~~All arbitrators~~ The period of time within which the option to extend may be exercised shall not be ~~real estate brokers with at least 5 years~~ extended or enlarged by reason of ~~continuous experience in~~ the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s ~~rights under this Section 3.2 shall automatically terminate immediately upon~~ inability to exercise the ~~occurrence of any~~ option because of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extendforegoing provisions. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Sublease (Salmedix Inc)

Option to Extend. Tenant shall have one (1) option to extend ~~the Term of~~ this Lease (the “Extension Option”) for one additional period of 7 years (the “Extension Term”) on the terms and conditions of this Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this ~~Lease. All arbitrators~~ paragraph, as long as Tenant has not been and is not then in default under the terms of the lease, for an additional term of five (5) years upon the same terms and conditions with the exception of Base Rental payable under Section 4 of the Lease which shall be ~~real estate brokers with at least 5 years of continuous experience~~ Landlord's then prevailing Base Rental being charged by Landlord for space in the ~~business of acting as real estate agents or brokers with respect~~ Building reasonably comparable to ~~comparable commercial office buildings in~~ the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right Premises. If Tenant elects to ~~possession of the Premises is terminated; (2) Tenant fails to timely~~ exercise the ~~Extension Option~~foregoing option to extend, it shall give Landlord written notice of its election to do so on or before August 1, 2000 but not prior to May 1, 2000, time being of the ~~essence~~ essence, which notice shall also request that Landlord furnish Tenant with ~~respect~~ the Base Rental for the extended term which shall be derived using Landlord's then prevailing rate for space actually leased in the Building comparable to the Premises. Landlord shall furnish Tenant, in writing, within fifteen (15) days of receipt of Tenant's notice of exercise with the Base Rental figure for the term extension. In the event that Landlord's Base Rental figure is unacceptable to Tenant~~’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option~~, ~~then~~for any reason whatsoever, ~~on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate.~~ then Tenant shall have ~~no further~~ the right to void its previous notice to extend its Lease by providing written notice to Landlord, such notice to be given within fifteen (15) days, time being of the essence, of receipt of Landlord's written notice stipulating the Base Rental figure. Upon Tenant giving such notice, the extension ~~or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after~~ of the Lease ~~Date~~shall be deemed null and void and this Lease shall expire on its initial expiration date as if the above extension option had not been exercised. If Tenant fails to notify Landlord within the stipulated time that the Base Rental figure is unacceptable then Tenant shall ~~lease~~ be deemed to have accepted the Base Rental figure. Tenant has no option(s) to extend this Lease except as set forth in this paragraph. PROPERTY NAME: Trafalgar Plaza AGENCY DISCLOSURE Florida real estate licensees are required by law to disclose which party they represent in a transaction and to allow a party the ~~Premises for~~ right to choose or refuse among the ~~Extension Term~~ various agency relationships. The purpose of the AGENCY DISCLOSURE is to acknowledge that the disclosure occurred and that the consumer has been informed of the various agency relationships which are available in ~~its then-current condition~~a real estate transaction. The following descriptions of terms, ~~and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance,~~ agency relationships and the ~~like~~respective duties and obligations are based upon Florida Law (Chapter 475, Florida Statutes). Lessor's Agent (a) ~~or other tenant inducements in connection with Tenant’s exercise~~ The fiduciary duties of loyalty, confidentiality, obedience, full disclosure, accounting and the duly to use skill, care and diligence. To the Lessee and Lessor: (a) A duty of honesty and fair dealing. (b) A duty to disclose all facts known to the Lessor's agent materially affecting the value of the ~~Extension Option~~property which are not known to, or readily observable by the parties in a residential transaction. Lessee's Agent A licensee who is engaged by and act as the agent of the Lessee only is known as the Lessee's agent. A Lessee's agent has the following duties and obligations: To the Lessee: (a) The fiduciary duties or loyalty, confidentiality, obedience, full disclosure, accounting and the duty to use skill, care and diligence. To the Lessor and Lessee: (a) A duty of honesty and fair dealing.

Appears in 1 contract

Samples: Office Lease (Quikbiz Internet Group Inc)

Option to Extend. 40.1 Landlord grants to Tenant ~~shall have one option~~ the right to extend the ~~Term~~ term of this Lease ~~(the “Extension Option”)~~ for one ~~additional~~ (1) period of 7 five (5) years under the same terms and conditions existing in the original Lease except as set forth in this Article 40. Tenant shall exercise such right to extend the term of this Lease by written notice to Landlord no later than twelve (12) months prior to the ~~“Extension Term”~~end of the original term. 40.2 Basic Annual Rent shall be adjusted on the first day of the extension term to an amount equal to the fair market rental value of the Premises as of the commencement of the extension term, but in no event less than one hundred three percent (103%) of the Basic Annual Rent payable during the last year of the original term. 40.3 Landlord shall obtain at its expense and deliver to Tenant an independent appraisal of the fair market rental value of the Premises as of the commencement of the extension term. Following its receipt of Landlord's appraisal, Tenant may elect to obtain at its expense and deliver to Landlord a second independent appraisal of the fair market rental value of the Premises as of the commencement of the extension term. If Tenant elects not to obtain a second appraisal, Landlord's appraisal shall be conclusive. If Tenant's appraisal is no more than five percent (5%) less than Landlord's appraisal, the fair market rental value of the Premises shall be the arithmetic average of the two appraisals. If Tenant's appraisal is more than five percent (5%) less than Landlord's appraisal, the two appraisers shall appoint a third appraiser to appraise the fair market rental value of the Premises as of the commencement of the extension term, and the fair market rental value of the Premises shall be the arithmetic average of the two appraisals closest in their determination of fair market rental value, but in no event less than one hundred three percent (103%) of the Basic Annual Rent payable during the last year of the original term. Landlord and Tenant shall bear equally the expense of the third appraiser. 40.4 All appraisers appointed hereunder shall have at least ten (10) years' experience in the appraisal of commercial and industrial real property in the UTC/Torrey Pines/Sorrento Valley areas of San Diego, and shall be memberx xx xxxxxxxional organizations such as the American Appraisal Institute with a designation of MAI or equivalent. 40.5 As used herein, the term "fair market rental value of the Premises" shall mean the base rent that a ready and willing tenant would pay for the Premises, as of the commencement of the extension term, to a ready and willing landlord, for a term of five (5) years on the terms and conditions of ~~this Section 3.2. The Extension Term shall commence~~the Lease, determined as if ~~at all,~~ the Premise were exposed for lease on ~~April 1, 2018,~~ the open market for a reasonable period of time and ~~end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise~~ taking into account all of the ~~Extension Option~~ purposes for which such property may be used. Any appraiser appointed hereunder to ~~Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during~~ determine the ~~Extension Term shall be the~~ "fair market rental ~~rate~~ value of the Premises' shall take into account all of the other terms and conditions of this Lease, including, without limitation, that this Lease provides for the Basic Annual Rent to increase annually by three percent (3% ) during the ~~“Prevailing Rental Rate”) at~~ extension term. 40.6 Any increase in Basic Annual Rent under this Article 40 which is not determined until after the effective date of the increase shall nevertheless be retroactive to the effective date, and Tenant shall pay any such retroactive increase with the installment of Rent next due. 40.7 Basic Annual Rent as of the commencement of the ~~Extension Term, for extensions of space of equivalent quality, size, utility,~~ extension term as determined under this Article 40 (and ~~location in the Mendota Heights area, talking into account the terms of this Lease, the length~~ as previously increased each year of the ~~Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made~~ extension term pursuant to ~~the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit~~this Section 40.7) ~~had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord~~ shall ~~deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination~~ be increased each year of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice extension term by three percent (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration3%). The ~~determination~~ first such increase shall become effective commencing with that monthly rental installment which is first due on or after the sixth (6th) anniversary of the ~~Prevailing Rental Rate~~ Term Commencement Date and subsequent increases shall become effective on the same day of each calendar year thereafter for so long as this Lease continues in ~~accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators~~ effect. 40.8 Tenant shall not have the ~~power~~ right to ~~add to~~exercise the option to extend the term, ~~modify, or change~~ notwithstanding anything set forth above to the contrary: (a) During the time commencing from the date Landlord gives to Tenant a written notice that Tenant is in default under any ~~of the provisions~~ provision of this ~~Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience~~ Lease and continuing until the default alleged in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises said notice is ~~terminated~~cured; (2b) During the period of time commencing on the day after a monetary obligation to Landlord is due from Tenant ~~fails~~ and unpaid without any necessity for notice thereof to ~~timely exercise~~ Tenant and continuing until the ~~Extension Option, time being of the essence with respect to Tenant’s exercise~~obligation is paid; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Sublease Agreement (Amylin Pharmaceuticals Inc)

Option to Extend. ~~Tenant~~ Lessee shall have ~~one option~~ the right, subject to the provisions hereinafter provided, to extend the ~~Term~~ term of this Lease ~~(the “Extension Option”)~~ for one ~~additional~~ (1) period of ~~7 years~~ five (~~the “Extension Term”~~5) years, zero (0) months on the terms and provisions of this Article XXXVII. Such five (5) year, zero (0) month renewal period is sometimes herein referred to as the "Renewal Term". The conditions of ~~this Section 3.2. The Extension~~ such Renewal Term shall ~~commence~~be as follows: (a) That this Lease is in full force and effect and Lessee is not in default in the performance of any of the terms, if covenants and conditions herein contained, in respect to which notice of default has been given hereunder which has not been or is not being remedied in the time limited in this Lease, at ~~all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise~~ the ~~Extension Option by delivering written notice (a “Notice to Extend”)~~ time of ~~its~~ exercise of the ~~Extension Option~~ right of renewal, but Lessor shall have the right at its sole discretion to ~~Landlord not later than April 1, 2017~~waive the non-default conditions herein. ~~3.2.1 The Net~~ (b) That such Renewal Term shall be on the same terms, covenants and conditions as in this Lease; provided, however, the annual Base Rent ~~payable~~ for ~~each month during the Extension~~ such Renewal Term shall be the fair market ~~rental~~ Base Rent rate for such space on the date such renewal term shall commence in relation to comparable (in quality, location and size) space located in Scottsdale, Arizona. The determination of such fair market Base Rent for the ~~“Prevailing Rental Rate”) at~~ Premises shall be made no later than the date that is eight (8) months prior to commencement of the ~~Extension~~ Renewal Term~~, for extensions~~ . Provided Lessee has properly elected to renew the term of ~~space of equivalent quality, size, utility~~this Lease, and ~~location~~ if Lessor and Lessee fail to agree at least eight (8) months prior to commencement of the Renewal Term upon the fair market Base Rent of the Premises, the fair market Base Rent of the Premises shall be determined by appraisal in accordance with the ~~Mendota Heights area~~provisions of Article XXXVIII ("Appraisal") hereof. Notwithstanding anything to the contrary contained in this Article, ~~talking into account~~ in no event shall the Base Rent of the Premises for the Renewal Term be less than the Base Rent (exclusive of temporary abatements) payable by Lessee under the terms of this ~~Lease, the length~~ Lease immediately prior to commencement of ~~the Extension~~ such Renewal Term~~, and all other relevant factors, but assuming that no improvements Tenant has made~~ . (c) That Lessee shall exercise its right to the ~~Premises~~ Renewal Term provided herein, if at ~~Tenant’s sole expense (in other words~~all, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate notifying Lessor in writing ~~and give notice~~ of its election to ~~each other and~~ exercise the right to ~~Landlord and Tenant. The two arbitrators shall have 10 business days after~~ renew the ~~receipt~~ term of ~~notice of each other’s determinations~~ this Lease no later than nine (9) months prior to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the ~~10-business day period~~initial five (5) year, ~~then~~ zero (0) month term. Upon notification with respect to such Exhibit C (Page 8 of 9) 45 renewal, and for a period of thirty (30) days thereafter, the ~~two arbitrators~~ parties hereto shall ~~promptly designate~~ make a ~~third arbitrator. If the two arbitrators fail~~ good faith effort to agree upon the ~~designation~~ fair market Base Rent of ~~a third arbitrator~~ the Premises and for such Renewal Term. In the event that Lessor and Lessee fail to agree within ~~10 business days~~the thirty-day time period set forth in this subparagraph (c), ~~then either party may apply to~~ the ~~American Arbitration Association~~ fair market Base Rent of the Premises for such Renewal Term shall be determined by appraisal in the manner set forth in Article XXXVIII hereof. Any determination by appraisal or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected agreement reached by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers hereto with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option such fair market Base Rent and ~~all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession~~ resulting Base Rent of the Premises ~~is terminated; (2) Tenant fails~~ for such Renewal Term shall be expressed in writing and shall be executed by the parties hereto, and a copy thereof delivered to ~~timely exercise the Extension Option, time being~~ each of the ~~essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend~~parties. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Office Lease (Business Resource Group)

Option to Extend. ~~Tenant~~ Provided that Lessee has waived its Right to Terminate under Section 44 hereof, if Lessee is not in default hereunder on the last day of the Original Lease Term hereof and is in possession of the Premises and if the Lease is then in full force and effect, Lessee shall have ~~one~~ the option (hereinafter called the "Option") to extend the Original Lease Term ~~of this Lease (the “Extension Option”)~~ hereof for ~~one additional~~ a period of 7 five (5) years after the last day of the Original Lease Term (herein called the ~~“Extension~~ "Extended Lease Term~~”) on~~ "), upon the same terms and conditions of provided in this ~~Section 3.2.~~ Lease, except for the Initial Rental Rate, Parking Rate, rent escalations, and tenant improvement Allowances, 42.1 The ~~Extension~~ Annual Base Rental rate under this Lease for the Extended Lease Term shall ~~commence~~then be determined as follows: 42.1.1 Upon Lessee's written request prior to the required exercise date of the option, ~~if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering~~ Lessor shall promptly deliver written notice ~~(a “Notice~~ to ~~Extend”)~~ Lessee of ~~its exercise~~ Lessor's estimation of ~~the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be~~ the fair market rental rate and shall negotiate in good faith with Lessee in an attempt to agree upon such fair market rental rate. The Annual Base Rental under this Lease shall be an amount equal to the then "fair market rental rate", as hereinafter defined, for renewal leases as agreed upon by Lessor and Lessee not later than forty-five (45) days after Lessee's delivery to Lessor of written notice exercising the ~~“Prevailing~~ Option. In the event Lessor and Lessee are unable to agree upon the definition of the fair market rental rate prior to the required exercise date, then the Annual Base Rental ~~Rate”) at~~ for the Extended Lease Term shall be an amount equal to the then "fair market rental rate", for renewal leases as hereinafter defined and established. The phrase "fair market rental rate" shall mean the annual rental rate (projected to the date of the commencement of the ~~Extension~~ Extended Lease Term, ) which Lessee would expect to pay and Lessor would expect to receive under renewal leases for ~~extensions of~~ space of ~~equivalent quality~~comparable size and quality to the Premises for comparable office buildings in the Buckhead, ~~size~~Atlanta, ~~utility~~Georgia submarket area and as provided for in, and ~~location in~~ upon terms and conditions comparable to, this Lease covering renewal lease premises similar to the ~~Mendota Heights area, talking~~ Premises and taking into account the ~~terms of this Lease,~~ direct operating expenses payable by Lessee during the ~~length of the Extension~~ Extended Lease Term, ~~and all other relevant factors~~concessions offered by landlords, ~~but assuming that no improvements Tenant has made~~ if any, for such comparable renewal lease space to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR NoticePremises, and ~~(ii) proposing a specific alternative Prevailing Rental Rate~~increases in Base Rent, Operating Expenses and Parking Charges. If ~~Landlord~~ Lessor and ~~Tenant fail, despite good-faith negotiations,~~ Lessee have not reached agreement on a fair market rental rate and executed an amendment to ~~agree on the Prevailing Rental Rate~~ this Lease setting forth such agreement on or before the date ~~(the “Outside Date”)~~ that is 30 forty-five (45) days after ~~Landlord receives~~ Lessee's delivery to Lessor of written notice exercising the ~~PRR Objection Notice~~Option, ~~Landlord~~ and ~~Tenant each shall give notice~~ Lessee still desires to extend the ~~other~~ term of ~~the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation~~ this Lease, then, within ~~10 business~~ ten (10) days after ~~the Outside Date~~that date, ~~the other~~ each party shall ~~provide an additional notice~~ appoint and employ, a real estate professional to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, appraise and establish the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant"fair market rental rate" for renewal leases. The two ~~arbitrators~~ real estate professionals, thus appointed, shall ~~have 10 business days after the receipt of notice of each other’s determinations to confer with each other~~ meet promptly and to attempt to ~~reach agreement as~~ agree upon and establish said rate or, upon failing to ~~the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate~~do so, ~~that rate~~ shall ~~be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period,~~ then ~~the two arbitrators shall promptly~~ jointly designate a third ~~arbitrator~~real estate professional within ten (10) days of the appointment of the last two real estate professionals. If ~~the two arbitrators fail~~ they are unable to agree upon the ~~designation~~ third real estate professional, either of the parties, after giving five (5) days' notice to the other, may apply to a judge of the Superior Court of DeKalb County, Georgia (to whose jurisdiction for this limited purpose both Lessor and Lessee hereby consent) for the selection of a third ~~arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator~~real estate professional. ~~The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out~~ Each of the ~~two determinations by the two arbitrators originally selected by the~~ parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear one-half (1/2) of the cost of the ~~arbitrator it selects. The remaining cost~~ appointment of the ~~arbitration~~ real estate professionals. Within thirty (30) days after the selection of the third real estate professional, the real estate professionals shall agree upon the "fair market rental rate" for such renewal leases. If the real estate professionals are unable to agree within the stipulated time, then each of the real estate professionals shall independently estimate the fair market rental rate for renewal leases. Any rate that is more than ten (10%) percent different from the middle estimate shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowancedisregarded, and the ~~like) or other tenant inducements in connection with Tenant’s exercise~~ remaining estimates shall be averaged to determine the fair market rental rate for renewal leases. In any of said events, the ~~Extension Option~~determination so chosen shall be final, conclusive and binding upon both Lessor and Lessee.

Appears in 1 contract

Samples: Lease Agreement (Harbinger Corp)

Option to Extend. ~~Tenant~~ Provided that (i) no Event of Default shall ~~have one~~ exist at the time such option to extend the Term of this Lease (the “Extension Option”) for one additional period of 7 years (the “Extension Term”) on the terms and conditions of this Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) is exercised or at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) ~~proposing~~ this Lease remains in full force and effect and Tenant or a ~~specific alternative Prevailing Rental Rate~~Permitted Transferee remains in occupancy of the Premises, Tenant may elect to extend the Term of this Lease for two (2) additional periods of seven (7) years each (each, an “Extension Term”), by giving Landlord notice of such election no sooner than eighteen (18) months earlier than and no later than fifteen (15) months prior to the Expiration Date of the original term or first Extension Term, as the case may be. Such extension shall be upon the terms, covenants, and conditions contained in this Lease except that after the exercise of the second Extension Term, Tenant shall have no further right to extend the Lease Term and except that the Base Rent for each Extension Term shall be at fair market rent for comparable space in comparable properties in the Route 3/Route 495 area and not less than the then current Base Rent in effect during the last year of the original term or first Extension Term, as the case may be. If Landlord and Tenant ~~fail, despite good-faith negotiations,~~ are unable to agree on the ~~Prevailing Rental Rate on or before~~ amount of such fair market rent by the date that is thirty (30) days after the date of Tenant’s election notice based on rental rates and terms for comparable space in the Route 3/Route 495 area, then Landlord shall promptly specify in writing the rent (“~~Outside Date~~Landlord’s Rental Rate”) ~~that~~ at which Landlord is ~~30 days after Landlord receives~~ willing to lease the ~~PRR Objection Notice,~~ Premises for the applicable Extension Term and Tenant shall promptly specify in writing the rent (“Tenant’s Rental Rate”) which Tenant is willing to pay for the Premises for the Extension Term and the amount of the fair market rent shall be established by appraisal in the following manner. The Landlord and Tenant shall each appoint one appraiser and the two appraisers so appointed shall ~~give notice to~~ determine the ~~other~~ fair market rent within thirty days of ~~the name and address of an arbitrator designated by the party giving such~~ Tenant’s election notice. If ~~either party fails to give notice of~~ such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail appraisers are unable to agree on the ~~Prevailing Rental Rate by the end~~ amount of ~~the 10-business~~ such fair market rent within such thirty (30) day period, ~~then the two arbitrators~~ they shall ~~promptly designate~~ appoint a third ~~arbitrator. If~~ appraiser within ten (10) days of the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation expiration of such ~~arbitrator. The third arbitrator~~ period, who shall ~~conduct such hearing and investigations~~ be instructed to select, as ~~he or she deems appropriate and shall, within 30 days after his or her designation, choose~~ between the ~~one determination out of the two determinations~~ rents chosen by the two ~~arbitrators originally~~ appraisers, the rent that is closest to the third appraiser’s estimate of fair market rent. The fair market rent shall be the amount so selected by the ~~parties that most closely approximates the~~ third ~~arbitrator’s own determination of the Prevailing Rental Rate,~~ appraiser and ~~that choice by the third arbitrator~~ shall be ~~binding upon~~ conclusive on the Landlord and Tenant~~. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators~~. Each party shall bear the cost of its appraiser, and the ~~arbitrator it selects. The remaining~~ cost of the ~~arbitration~~ third appraiser shall be split ~~evenly~~ equally between ~~the parties (and each party shall bear all of its own costs in connection with such arbitration)~~parties. The ~~determination of the Prevailing Rental Rate in accordance with this Section 3.2.2~~ third appraiser’s estimate shall be ~~final~~ based on the data supplied and ~~binding in fixing~~ used by the ~~Prevailing Rental Rate. The arbitrators shall not have~~ original two appraisers and the ~~power to add to, modify, or change any of~~ findings made by the ~~provisions of this Lease. All arbitrators~~ third appraiser shall be ~~real estate brokers with at least 5 years of continuous experience~~ set forth in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or writing. Tenant~~. 3.2.3 The Extension Option and all of Tenant’s~~ 's rights under this Section ~~3.2~~ are personal to Tenant and shall ~~automatically terminate immediately upon~~ not apply to any Transferee of Tenant (other than a Permitted Transferee) and shall not be assignable or exercisable by any other person or entity. If at any time during the ~~occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of~~ Term Tenant has sublet the Premises ~~is terminated;~~ (~~2) Tenant fails~~ not including Transfers to ~~timely exercise the Extension Option~~Permitted Transferees), ~~time being~~ then Tenant's rights under this Section shall thereafter be null and void and of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further ~~extension~~ force or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Optioneffect.

Appears in 1 contract

Samples: Lease (T2 Biosystems, Inc.)

Option to Extend. Landlord does hereby grant to Tenant ~~shall have one~~ the right, ---------------- privilege, and option to extend ~~the Term of~~ this Lease ~~(the “Extension Option”)~~ for one ~~additional~~ (1) period of 7 five (5) years (the ~~“Extension~~ "Extended Term”") on from the date of expiration of the initial Term hereof, upon the same terms and conditions ~~of this Section 3.2. The Extension Term shall commence~~as herein contained, ~~if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice~~ except as to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate "Basic Rent" which shall be determined in accordance with ~~Section 3.2.2 below. 3.2.2~~ the following paragraph. In the event Tenant desires to exercise its option to extend this Lease, then at least twelve (12) months prior to the expiration of the Term hereof, Tenant shall give Landlord a written notice binding upon Tenant (the "Extension Notice"), which shall set forth the name of the parties, the Lease date, and the option period and dates of which Tenant is exercising. If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate exercises its extension option in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Noticemanner set forth herein, Landlord and Tenant ~~each~~ shall ~~give notice~~ promptly execute and deliver an amendment to the ~~other of~~ Lease. In the ~~name and address of an arbitrator designated by the party giving such notice. If either party~~ event that Tenant fails to give ~~notice~~ the Extension Notice as set forth herein, then Tenant's right to extend this Lease shall terminate and be of ~~such designation within 10 business days after the Outside Date~~no further force and effect. The rent reserved herein, i.e., the ~~other party~~ "Basic Rent", during the Extended Term shall ~~provide an additional notice~~ be set at a figure which is equal to ~~such party requiring such party’s appointment~~ the then prevailing fair market rental value for the Premises at the time of ~~an arbitrator within 10 business days after receipt~~ commencement of ~~such second notice. If either party fails to give notice of such designation within such second 10 business day period~~said Extended Term, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to as determined by mutual agreement between Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, ~~that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate~~ or by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration ~~shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate~~ in accordance with ~~this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of~~ the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing Not later than thirty (~~or who had previously represented within the preceding 2-year period~~30) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time days after Tenant delivers the ~~Notice~~ Extension Notice, Landlord shall give Tenant Landlord's proposed determination of the fair market rental value for the Premises for the Extended Term. If Landlord and Tenant are unable to ~~Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date~~ agree upon said fair market rental value within sixty (60) days after Landlord's receipt of the Extension ~~Term~~Notice, then the matter shall be determined by arbitration pursuant to the terms of this Subsection. The parties agree to a standard of good faith and reasonableness in their attempts to affirmatively resolve the issue of Basic Rent. Notwithstanding anything to the contrary in this Lease, Landlord and Tenant agree that under no circumstances shall ~~execute an amendment~~ the Basic Rent be less during the Extended Term than during the Lease Year immediately prior to ~~this Lease extending~~ the ~~Term and adjusting the Net Rent~~ Extended Term. Arbitration, if required, shall be before one disinterested arbitrator if one can be mutually agreed upon as hereinafter provided, otherwise before three disinterested arbitrators, one to be named by the ~~Prevailing Rental Rate~~Landlord, one by the Tenant as hereinafter provided and one by the two thus chosen. Within fifteen (15) days of their selection, if Landlord and Tenant ~~shall have no further extension or renewal option other than~~ are unable to agree upon the ~~Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant~~ fair market rental value of the Premises ~~for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances~~ within sixty (~~e.g., moving allowance, construction allowance, and the like~~60) ~~or other tenant inducements in connection with Tenant’s exercise~~ days after Landlord's receipt of the Extension ~~Option.~~Notice, then either Landlord or Tenant (the "Initiating

Appears in 1 contract

Samples: Lease (Watchguard Technologies Inc)

Option to Extend. ~~Tenant~~ Lessee shall have ~~one option~~ the right, to be exercised as hereinafter provided, to extend the ~~Term~~ term of this Lease ~~(the “Extension Option”)~~ for one ~~additional~~ (1) period of ~~7 years~~ two (~~the “Extension Term”~~2) years, on the following terms and conditions of and subject to the limitations hereinafter set forth, such two (2) year extension period being in this ~~Section 3.2. The Extension Term shall commence, if~~ Lease sometimes referred to as the "Renewal Term." (a) That at ~~all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise~~ the ~~Extension Option by delivering written notice (a “Notice to Extend”) of its~~ time hereinafter set forth for the exercise of the ~~Extension Option~~ renewal option, this Lease shall be in full force and effect and Lessee shall not be in default in the performance of any of the terms, covenants and conditions herein contained in respect to ~~Landlord~~ a matter as to which notice of default has been given hereunder which has not ~~later than April 1~~been remedied within the time limited in this Lease, ~~2017~~but Lessor shall have the right, at its sole discretion, to waive the non-default conditions herein. ~~3.2.1 The Net~~ (b) That the Renewal Term shall be upon the same terms, covenants and conditions as in this Lease provided; provided, however, the annual Base Rent ~~payable~~ for ~~each month during~~ the ~~Extension~~ Renewal Term shall be the fair market ~~rental~~ Base Rent rate for such space on the date such Renewal Term shall commence in relation to comparable (in quality and location) space located in the ~~“Prevailing Rental Rate”~~Minneapolis-St. Xxxx metropolitan area. The fair market Base Rent for the Premises shall be determined as of the date six (6) ~~at the~~ months prior to commencement of the ~~Extension~~ Renewal Term~~, for extensions of space of equivalent quality, size, utility, and location in~~ . Provided Lessee has properly elected to renew the ~~Mendota Heights area, talking into account the terms~~ term of this Lease, ~~the length~~ and if Lessor and Lessee fail to agree at least five (5) months prior to commencement of the ~~Extension Term~~Renewal Term upon the fair market Base Rent of the Premises, ~~and all other relevant factors, but assuming that no improvements Tenant has made to~~ the amount of the fair market Base Rent of the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined by arbitration in accordance with ~~Section 3.2.2 below~~the provisions of Article XXXI hereof. The fair market Base Rent of the Premises shall be based upon the highest and best use of the Premises; provided, however, the non-office areas of the Premises (production and warehouse areas) shall be based on the market rate for non-air-conditioned warehouse space only. The rate for the office areas shall be based upon market rates for office areas. In no event shall the Base Rent of the Premises for the Renewal Term be either less than the Base Rent rate payable nor more than 120% of the Base Rent rate payable (absent temporary abatements) by Lessee immediately prior to commencement of the Renewal Term. ~~3.2.2 If Tenant does not accept Landlord’s determination~~ (c) That Lessee shall exercise its rights to extend the term of this Lease for the Renewal Term by notifying Lessor, in writing, of its election to exercise the right to renew and extend the term of this Lease no later than the date six (6) months prior to the expiration of the ~~Prevailing Rental Rate within 30~~ initial term of this Lease. Upon notification with respect to such renewal, and for a period of thirty (30) days ~~after Landlord’s PRR Notice as provided in Section 3.2.1~~thereafter, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen parties hereto shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a ~~third arbitrator. If the two arbitrators fail~~ good faith effort to agree upon the ~~designation~~ fair market Base Rent of ~~a third arbitrator~~ the Premises for such Renewal Term. In the event that Lessor and Lessee fail to agree within ~~10 business days~~the thirty (30) day time period set forth in this subparagraph (c), ~~then either party may apply~~ the fair market Base Rent of the Premises for such Renewal Term shall be determined by Arbitration in the manner set forth in Article XXXI ("Arbitration") hereof. However, such arbitrators shall be directed to determine the ~~American Arbitration Association~~ fair market Base Rent for the Premises as above provided and in determining the same said appraisers shall be instructed to make said appraisal independently, without consulting with each other. Any determination by arbitration or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected agreement reached by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers hereto with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option such fair market Base Rent and ~~all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession~~ resulting Base Rent of the Premises ~~is terminated; (2) Tenant fails~~ for such Renewal Term shall be expressed in writing and shall be executed by the parties hereto, and a copy thereof delivered to ~~timely exercise the Extension Option, time being~~ each of the ~~essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend~~parties. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Office/Warehouse Lease (Fargo Electronics Inc)

Option to Extend. Provided that the Required Conditions have been satisfied and the Tenant gives the Landlord not less than six (6) months’ and not more than twelve (12) months’ written notice prior to the expiration of the initial Term of the exercise of this option, then the Tenant shall have ~~one~~ the option to extend the ~~Term~~ Lease in respect of ~~this Lease~~ the whole of the Premises for a single additional five (~~the “Extension Option”~~5) ~~for one additional period of 7 years~~ year term (the “Extension Term”) on the same terms and conditions ~~of this Section 3.2. The~~ as set out in the Lease (hereinafter referred to as the “Extension ~~Term~~ Option”) except: (a) the Basic Rent shall ~~commence~~be fair market rental for similar premises in the area (the “Extension Rate”), ~~if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise~~ provided that in no event shall the Extension ~~Option by delivering written notice (a “Notice~~ Rate be less than the rate of Basic Rent payable in the immediately preceding year. If the Landlord and the Tenant do not agree on the Extension Rate at least 90 days prior to ~~Extend”) of its exercise~~ the start of the Extension ~~Option to Landlord not later than April 1~~Term, ~~2017. 3.2.1 The Net Rent payable for each month during~~ the Extension ~~Term~~ Rate shall be determined by an independent real estate appraisal firm to be agreed upon by the Landlord and the Tenant or, if the Landlord and the Tenant cannot agree on a mutually acceptable independent real estate appraisal firm at least 75 days prior to the start of the Extension Term, then the Landlord and the Tenant shall each promptly select a reputable independent real estate appraisal firm , those two firms shall together promptly select a third reputable independent real estate appraisal firm, each of the three firms shall promptly determine the fair market rental rate (for the ~~“Prevailing Rental Rate”) at~~ Premises and the ~~commencement~~ Extension Rate shall be the average of the ~~Extension Term, for extensions of space of equivalent quality, size, utility, and location in~~ three rates determined by the ~~Mendota Heights area, talking into account~~ three firms; (b) the Tenant shall accept the Premises consistent with the terms of ~~this~~ the existing Lease, ~~the length~~ with no allowance, rent free period or other inducements of ~~the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense~~ any nature; and (~~in other words, without reimbursement through any allowance or credit~~c) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate there shall be ~~determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of~~ no further right to extend the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental RateTerm. If ~~Landlord and~~ the Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give the appropriate notice ~~of such designation~~ within ~~10 business days after~~ the ~~Outside Date~~time limit required for extending the Term, ~~the other party shall provide an additional notice~~ then this option to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate extend shall be ~~final~~ null and ~~binding upon Landlord~~ void and ~~Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end~~ of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further ~~extension~~ force or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Optioneffect.

Appears in 1 contract

Samples: Lease (Span America Medical Systems Inc)

Option to Extend. If Tenant ~~shall have one option~~ is not then in default (after notice of default has been provided and time to remedy such default has passed) at the notice date or the renewal date of any covenants, conditions and agreements herein reserved and contained and on the part of Tenant to be paid and performed, Landlord will, upon Txxxxx’s request in writing, given at least fifteen (15) months and not more than twenty (20) months prior to the expiration of the lease Term, grant to Tenant or its permitted assigns or transferees two (2) successive options to extend ~~the Term of this Lease~~ its lease (~~the “Extension Option”) for one additional period of 7 years (the “Extension Term”)~~ on the same terms and conditions ~~of this Section 3.2. The Extension Term~~ as Tenant’s lease with Landlord), each for a further five (5) years, save and except that there shall ~~commence, if~~ be no further rights to extend and save and except that the net rent during any extension period shall be mutually agreed upon between the parties at ~~all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise~~ least four (4) months prior to the ~~Extension Option by delivering written notice (a “Notice to Extend”) of its exercise~~ expiry of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and ~~all other relevant factors~~shall be based on the then current fair market rent for the Leased Premises, ~~but assuming~~ taking into account that Tenant is receiving no tenant inducements, no Landlord’s Work, and taking into consideration the age of the leasehold improvements ~~Tenant has made~~ in the Leased Premises and premises similar to the Leased Premises ~~at Tenant~~which are comparable in size, location, type, and condition, for tenant’s ~~sole expense (in other words, without reimbursement through any allowance or credit) had been made~~leasing similar premises of a similar size and for a similar term. ~~Within 30 days after receiving Tenant’s Notice~~ In the event the Tenant does not exercise its Option to Extend, the Landlord shall ~~deliver to Tenant written notice~~ have the right, during the last fifteen (~~the “PRR Notice”~~15) ~~advising Tenant of Landlord’s determination~~ months of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiationsTerm, to ~~agree on~~ show the ~~Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give~~ Leased Premises to prospective third party tenants upon reasonable notice to the ~~other~~ Tenant during business hours and with a representative of the ~~name and address~~ Tenant in attendance. In the event that a new net rent is not agreed upon at least four (4) months prior to the expiry of ~~an arbitrator designated by~~ the ~~party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date~~Term, the ~~other party~~ net rent for an extension period shall ~~provide an additional notice~~ be settled by a single arbitrator pursuant to ~~such party requiring such party~~the Arbitration Act, S.O. 1991 c.17 as amended or replaced, and shall be equal to the then current market rent for the Leased Premises, taking into account that Tenant is receiving no tenant inducements, no Landlord’s ~~appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period~~Work, and taking into consideration the ~~first arbitrator chosen shall make the determination~~ age of the ~~Prevailing Rental Rate alone~~leasehold improvements in the Leased Premises and premises similar to the Leased Premises which are comparable in size, location, type, and condition, for tenant’s leasing similar premises of a similar size and for a similar term. ~~If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation~~ The expense of ~~the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to~~ arbitration shall be borne equally by Landlord and Tenant~~. The two arbitrators shall have 10 business days after the receipt of notice of~~ , except that each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate party shall be ~~final~~ responsible for its respective solicitor’s and ~~binding upon Landlord~~ experts’ fees and ~~Tenant~~witnesses. If It is understood and agreed that the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be ~~binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed~~ qualified by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add toeducation, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current conditionexperience, and ~~Landlord shall have no obligation~~ training to ~~provide to Tenant any allowances (e.g., moving allowance, construction allowance, and~~ make a decision on the ~~like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option~~matter being arbitrated.

Appears in 1 contract

Samples: Lease Agreement (Alliance Data Systems Corp)

Option to Extend. Tenant shall have one (I) option to extend the Lease Term ~~of this Lease (the “Extension Option”)~~ for ~~one additional~~ a period of 7 five (5) years (the “"Extension ~~Term”) on the terms and conditions of this Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025~~Period"). Tenant ~~may exercise~~ must provide written notice of its intent to extend the Lease Term to Landlord twelve (12) months prior to the expiration of the Lease Term. If Tenant exercises such ` option, The Base Rent for the Extension ~~Option by delivering written notice (a “Notice to Extend”) of its exercise~~ Period shall be 95% of the ~~Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the~~ then fair market ~~rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term,~~ rent for ~~extensions of~~ first class office space ~~of equivalent quality, size, utility, and location~~ in the ~~Mendota Heights~~ Lowell/Chelmsford area, ~~talking into account~~ but not less than the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been madecurrent Base Rent. Within 30 days after receiving such notice from Tenant~~’s Notice to Extend~~, Landlord shall ~~deliver to Tenant~~ give written notice ~~(the “PRR Notice”) advising~~ to Tenant of Landlord’s 's determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental RateFair Market Rent. If Landlord and Tenant ~~fail, despite good-faith negotiations,~~ are unable to agree on the ~~Prevailing Rental Rate on or before~~ Fair Market Rent within such 30-day period, the ~~date~~ Fair Market Rent shall be determined according to the following procedures: (~~the “Outside Date”~~a) ~~that is 30 days~~ At any time after ~~Landlord receives the PRR Objection Notice~~such 30-day period, Landlord and Tenant each shall ~~give~~ have the right, by written notice (a "Notice of Arbitration") to the ~~other~~ other, to demand arbitration of the ~~name and address~~ calculation of the Fair Market Rent. The party demanding arbitration (the "first party") shall appoint an arbitrator ~~designated by~~ in the ~~party giving such notice~~Notice of Arbitration. ~~If either party fails to give notice of such designation within 10 business~~ Within seven days after the ~~Outside Date~~Notice of Arbitration is given, the other party (the "second party") shall ~~provide an additional~~ by notice to ~~such~~ the first party ~~requiring such party’s appointment of an arbitrator within 10 business days after receipt of such~~ appoint a second ~~notice~~arbitrator. If ~~either~~ the second party fails to ~~give notice of such designation~~ appoint a second . arbitrator within such ~~second 10 business~~ seven-day period, the position taken by the first ~~arbitrator chosen~~ party shall ~~make~~ be deemed to be the correct determination of the ~~Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business~~ Fair Market Rent. (b) Within seven days ~~following~~ after the designation of the second arbitrator, ~~make their determination of the Prevailing Rental Rate in writing and give notice to each other and to~~ Landlord and ~~Tenant. The two arbitrators~~ Tenant shall ~~have 10 business days after the receipt of notice of each other’s determinations to confer~~ submit their respective positions with ~~each other and to attempt to reach agreement as~~ respect to the determination of the ~~Prevailing Rental Rate. If~~ Fair Market Rent to the two ~~arbitrators agree on~~ arbitrators. Within fourteen days after the ~~Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end~~ designation of the ~~10-business day period~~second arbitrator, ~~then~~ the two arbitrators shall ~~promptly~~ conduct such hearings and investigations as they deem appropriate, and each shall give written notice to the other and Landlord and Tenant of its determination the Fair Market Rent. If one (and only one) arbitrator fails to give such notice within such fourteen-day period, the other arbitrator's determination shall be the Fair Market Rent. If the greater of such determinations is not more than five percent greater than the lesser of such determinations, the Fair Market Rent shall be the average of the two such determinations. (c) If the Fair Market Rent is not determined in accordance with the immediately preceding paragraph, the two arbitrators shall, within such 3.0 days after the designation of the second arbitrator, designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within ~~10 business days~~such 30-day period, then they or either of them shall give notice of such failure to agree to Landlord and Tenant within such 30-day period. If Landlord and Tenant fail to agree upon the selection of a third arbitrator within seven days after the arbitrators give such notice, then either party on behalf of both may apply to the ~~American Arbitration Association~~ president of the Greater Boston Real Estate Board. or, on his or ~~any successor having jurisdiction~~ her failure, refusal or inability to act, to a court of competent jurisdiction, for the designation of such third arbitrator. (d) Within seven days after the designation of the third arbitrator, Landlord and Tenant shall submit their respective positions with respect to the determination of the Fair Market Rent to the third arbitrator. ~~The~~ Within fourteen days after the designation of the third arbitrator, the third arbitrator shall conduct such ~~hearing~~ hearings and investigations as he or she ~~deems~~ may deem appropriate and ~~shall, within 30 days after his or her designation, choose the one determination out~~ shall give written notice to .Landlord and Tenant of ~~the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own~~ its determination of the ~~Prevailing Rental Rate, and that choice by~~ Fair Market Rent. If the ~~third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either~~ greatest of the determinations ~~proposed by the original two arbitrators. Each party shall bear the cost~~ of the ~~arbitrator it selects~~three arbitrators is more than ten percent greater than the middle such determination, then, such greatest determination shall be disregarded. If the least of the determinations of the three arbitrators is more than ten percent less than the middle such determination, then such least determination shall be disregarded. If the greatest and least such determinations are both disregarded, the middle such determination shall be the Fair Market Rent; otherwise, the Fair Market Rent shall be the average of any such determinations not so disregarded. (e) All arbitrators shall be qualified real estate professionals who shall have had at least ten years of experience appraising first-class buildings substantially similar to the Building in the Lowell/Chelmsford area Landlord and Tenant shall each be entitled to present evidence to the arbitrators in support of their respective positions. The ~~remaining cost~~ arbitrators shall not make any determination inconsistent with the terms of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Ratethus Lease. The arbitrators shall not have the power to add to, ~~modify,~~ modify or change any of the provisions of this Lease. ~~All arbitrators~~ The determination of the arbitrators) shall be ~~real estate brokers with at least 5 years~~ conclusive and shall have the same force as a judgment in a court of ~~continuous experience~~ competent jurisdiction. Judgment on the determination made by the arbitrator(s) under the foregoing provisions may be entered in ~~the business~~ any court of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenantcompetent jurisdiction. ~~3.2.3 The Extension Option~~ (f) Each party shall pay the fees, costs and ~~all~~ expenses of ~~Tenant’s rights~~ the arbitrator appointed by such party and of the attorneys and expert witnesses of such party and one-half of the other fees, costs and expenses of arbitration properly incurred under this ~~Section 3.2~~ Lease. (g) If the Fair Market Rent shall ~~automatically terminate immediately upon~~ not be determined before the ~~occurrence of any~~ end of the ~~following: (1) either this~~ initial Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension OptionTerm, then, ~~on or before~~ as of the ~~commencement date~~ beginning of the Extension ~~Term~~Period, ~~Landlord and~~ Tenant shall ~~execute an amendment~~ continue to pay Base Rent at the rate in effect under this Lease ~~extending~~ during the last year of the initial Lease Term ~~and adjusting~~ until the ~~Net~~ Fair Market Rent ~~to be the Prevailing Rental Rate~~is determined in accordance with this Section 3.4. Within 30 days after such determination, Tenant shall ~~have no further extension or renewal option other than~~ pay to Landlord the ~~Extension Option except pursuant to an express written agreement by Landlord executed and delivered after~~ difference, if any, between (i) the Base Rent, as determined in accordance with this Section 3.4, due under this Lease ~~Date. Landlord shall lease to Tenant~~ during the ~~Premises for~~ period from the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise commencement of the Extension ~~Option~~Period until the date of such payment and (ii) the Base Rent actually paid by Tenant during such period.

Appears in 1 contract

Samples: Lease (Datawatch Corp)

Option to Extend. ~~Tenant shall have one~~ Lessor hereby grants to Lessee the option to extend the ~~Term~~ term of ~~this~~ the Lease for one (~~the~~ 1) additional five (5) year period (“~~Extension~~ Option”), commencing when the then current term expires upon each and all of the following conditions: A. In order to exercise the Option, Lessee must give written notice pursuant to the Lease of such election to Lessor and Lessor must receive the same at least one hundred eighty (180) days prior to the date that the option period would commence, time being of the essence. If proper notification of the exercise of the Option is not given, Lessee shall have no further or additional right to extend the term of the Lease. B. Except for ~~one additional period~~ the provisions of ~~7 years (~~the ~~“Extension Term”) on~~ Lease granting this option to extend the term, all of the terms and conditions of this ~~Section 3.2~~Lease except where specifically modified by this option to extend shall apply. This option to extend is personal to the Lessee and its affiliates. C. The ~~Extension~~ Base Rent in effect at the expiration of the last month of the Term of this Lease shall ~~commence~~be adjusted to reflect the then-current fair market rental for comparable space in the Building or Project and in other similar buildings in the same rental market, ~~if at all, on April 1, 2018~~taking into account the specific provisions of this Lease which will remain constant, and ~~end on March 31~~the Building amenities, ~~2025~~location, identity, quality, age, condition, term of lease, tenant improvements, services provided, and other pertinent items (“Adjusted Base Rent”). ~~Tenant may exercise~~ In no event shall the ~~Extension Option by delivering written notice (a “Notice to Extend”) of its exercise~~ Adjusted Base Rent be less than the Base Rent in effect at the expiration of the ~~Extension Option to Landlord not~~ then current term of the Lease. Lessor shall advise Lessee of the Adjusted Base Rent for the Premises for the renewal term based on Lessor’s reasonable determination of fair market rental value, no later than ~~April 1, 2017. 3.2.1 The Net Rent payable for each month during~~ ninety (90) days prior to the ~~Extension Term~~ end of the then current term of this Lease. Lessor and Lessee shall be negotiate in good faith to agree on the fair market rental ~~rate (the “Prevailing Rental Rate”) at the commencement~~ value of the ~~Extension Term,~~ Premises for ~~extensions of space of equivalent quality, size, utility,~~ the renewal term. If Lessee and ~~location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made~~ Lessor are unable to ~~the Premises at Tenant’s sole expense~~ agree on a mutually acceptable rental rate for any such increase period within thirty (~~in other words, without reimbursement through any allowance or credit~~30) ~~had been made. Within 30~~ days after ~~receiving Tenant~~notification by Lessor to Lessee of Lessor’s ~~Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s~~ reasonable determination of the ~~Prevailing Rental Rate. Unless Tenant delivers~~ Adjusted Base Rent for the increase period, but in any even no later than the date which is sixty (60) days prior to ~~Landlord, within 30 days after receiving~~ the ~~PRR Notice, a written acceptance of Landlord’s determination~~ expiration of the ~~Prevailing Rental Rate~~then current term, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate then on or before such date Lessor and Lessee shall each appoint a licensed real estate broker with at least ten (10) year’s experience in leasing industrial space in the ~~date~~ area in which the Building is located to act as arbitrators. The two (2) arbitrators so appointed shall determine the ~~“Outside Date”~~fair market rental value for the Premises for the increase period based on the above criteria and each shall submit his or her determination of such fair market rental value to Lessor and Lessee in writing, within thirty (30) ~~that is 30~~ days after ~~Landlord receives~~ appointment. If the ~~PRR Objection Notice, Landlord and Tenant each shall give notice~~ two (2) arbitrators so appointed cannot agree to the ~~other of~~ fair market rental value for the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation increase period within such ~~second 10 business~~ 30 day period, the ~~first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If~~ two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two (2) arbitrators shall ~~have 10 business~~ within five (5) days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of thereafter appoint a third arbitrator ~~within 10 business days, then either party may apply to~~ who shall be a licensed real estate broker with at least ten (10) year’s experience in leasing industrial space in the ~~American Arbitration Association or any successor having jurisdiction for~~ area in which the ~~designation of such arbitrator~~Building is located. The third arbitrator so appointed shall ~~conduct such hearing and investigations as he or she deems appropriate and shall,~~ independently determine the fair market rental value for the Premises for the increase period within 30 fifteen (15) days after ~~his or her designation~~appointment, ~~choose~~ by selecting from the proposals submitted by each of the first two arbitrators the one ~~determination out of the two determinations by the two arbitrators originally selected by the parties~~ that most closely approximates the third arbitrator’s ~~own~~ determination of ~~the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant~~such fair market rental value. The third arbitrator shall have no right to ~~propose~~ adopt a compromise or middle ground or any modification of either of the ~~determinations proposed~~ proposals submitted by the ~~original~~ first two arbitrators. ~~Each party shall bear~~ The proposal chosen by the ~~cost of~~ third arbitrator as most closely approximating the ~~arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The~~ third arbitrator’s determination of the ~~Prevailing Rental Rate in accordance with this Section 3.2.2~~ fair market rental value for the increase period shall constitute the decision and award of the arbitrators and shall be final and binding ~~in fixing~~ of the ~~Prevailing Rental Rate~~parties. ~~The~~ Each party shall pay the fees and expenses of the arbitrators ~~shall not have~~ appointed by such party and one-half (1/2) of the ~~power~~ fees and expenses of the third Second Amendment arbitrator. If either party fails to ~~add to, modify~~appoint an arbitrator, or ~~change any~~ if either of the ~~provisions~~ first two arbitrators fails to submit his or her proposal of ~~this Lease. All arbitrators~~ fair market rental value to the other party, in each case within the time periods set forth above, then the decision of the other party’s arbitrator shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenantconsidered final and binding. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Lease (Artius Acquisition Inc.)

Option to Extend. ~~Tenant~~ Provided Lessee has not been and is not in default of any term or condition of this Lease as of the commencement of the renewal term, lessee shall have the one option to ~~extend~~ renew the ~~Term~~ term of ~~this Lease (~~the ~~“Extension Option”)~~ lease for one additional ~~period of 7 years (the “Extension Term”)~~ five year term, on the same terms and conditions of ~~this Section 3.2~~the Lease, except that the Base Rent shall be adjusted to the then prevailing market rental rate for a comparable leases in the comparable areas of the West San Xxxxxxxx Valley Area. ~~The Extension Term~~ Such option shall ~~commence,~~ be exercised (if at all~~, on April 1, 2018, and end on March 31, 2025~~) by Lessee giving Lessor at least 270 days prior irrevocable written notice. ~~Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1~~ The ~~Net Rent payable for each month during the Extension Term shall be the fair~~ prevailing market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in ~~accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s~~ the following manner: Prevailing market rental rate shall be determined taking into account all relevant factors, including (to the extent relevant) number of months of free rent, if any (which shall be part of the determination of the ~~Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1~~rental rate), Lessee improvement obligations, moving allowances, and leasing commissions and costs. The term "comparable leases" shall not include leases entered into under special circumstances affecting the economics of the tenancies, including following the exercise of options to lease space at other than then current prevailing market rate, the ~~Prevailing Rent Rate~~ lease of awkward or unusually shaped space or space without windows or other usual amenities, leases entered into under conditions where the Lessor was forced to lease the space by external legal, economic, or other pressures not generally applicable to the market, or the sublease or space by a sublessor not primarily in the business of leasing space. Prior to the date which is five (5) months before the expiration of the then current term, and assuming that Lessee has properly exercised its option to renew, Lessor shall ~~be determined~~ give Lessee notice of Lessor's proposed prevailing market rental value for the Premises. Lessee shall give Lessor written notice within thirty (30) days thereafter as ~~follows~~to whether or not Lessee agrees with Lessor's proposed prevailing market rental value. ~~Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant~~ If Lessee disagrees with ~~Landlord’s determination~~ Lessor's proposed prevailing market rental value, the parties shall negotiate in good faith to resolve their differences for a period of thirty (30) days. Upon the ~~Prevailing Rental Rate~~ expiration of such thirty (30) day period, if the parties are not in ~~the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations,~~ agreement as to ~~agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give~~ such fair market rental value by giving written notice to the other of party, such notice containing the name ~~and address~~ of an ~~arbitrator designated~~ appraiser appointed by such initiating party. Within fifteen (15) days thereafter, the party ~~giving~~ receiving such ~~notice. If either party fails to give~~ notice ~~of such designation within 10 business days after the Outside Date, the other party~~ shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing appoint its own appraiser and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as thereof to the ~~determination of the Prevailing Rental Rate~~initiating party. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business second appraiser is not appointed within such fifteen day period, then the appraiser selected by the initiating party shall determine the fair market rental value of the Premises, and such appraisal shall be binding upon the parties. If the second appraiser is timely appointed, then the two ~~arbitrators~~ appraisers shall ~~promptly designate a third arbitrator~~confer and attempt to agree on the prevailing market value. If the two ~~arbitrators fail~~ appraisers are unable to ~~agree upon~~ agree, but the ~~designation of a third arbitrator within 10 business days~~higher appraisal is no more than ten percent (10%) higher than the lower appraisal, then ~~either party may apply to~~ the ~~American Arbitration Association or any successor having jurisdiction for~~ prevailing market rental value shall be the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out average of the two ~~determinations~~ appraisals. If the higher appraisal is more than ten percent (10%) greater than the lower appraisal, the two appraisers shall together select a third appraiser who shall also determine the prevailing market rental value. If three appraisers are ultimately appointed and any two appraisers agree on the prevailing market rental value, the value agreed upon by the two ~~arbitrators originally selected by~~ appraisers shall be the ~~parties that most closely approximates~~ prevailing market rental value. If the ~~third arbitrator’s own determination~~ three appraisers all determine different prevailing market rental values, then the prevailing market rental value shall be the average of the ~~Prevailing Rental Rate, and that choice by the third arbitrator~~ two closest appraisals. All appraisers shall be ~~binding upon Landlord~~ members of the MAI and ~~Tenant. The third arbitrator~~ shall have ~~no right to propose a middle ground or any modification of either of~~ at least ten (10) years' experience appraising similar property in the ~~determinations proposed by the original two arbitrators~~West San Xxxxxxxx Valley Area. Each party shall bear the cost of the ~~arbitrator it selects. The remaining~~ appraiser appointed by such party, and the parties shall share equally in the cost of the ~~arbitration shall be split evenly between~~ third appraiser, if appointed. If the ~~parties (and each~~ two appraisers initially appointed are unable to agree on a third appraiser, then either party shall ~~bear all of its own costs in connection with such arbitration). The determination~~ have the right to apply to the presiding judge of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant Superior Court having jurisdiction over the Premises for the ~~Extension Term~~ appointment of a third appraiser. The rent determined in ~~its then~~accordance to the foregoing shall be subject to adjustments pursuant to the attached Addendum to Standard Lease paragraph 59-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension OptionRent Adjustments - Extended Term.

Appears in 1 contract

Samples: Standard Industrial/Commercial Single Tenant Lease Net (Netcom Systems Inc)

Option to Extend. ~~Tenant~~ Lessee shall have ~~one option~~ the right, at its option, to extend the Term ~~of this Lease (the “Extension Option”)~~ for one ~~additional~~ (1) period of 7 five (5) years (the “~~Extension~~ Option Term”) on immediately following the ~~terms~~ Expiration Date. Lessee shall exercise its right to extend the Term by delivery of written notice to Lessor at least six (6) months and not more than nine (9) months prior to the then scheduled Expiration Date. All of the terms, covenants and conditions (including without limitation defined terms) contained in this Lease shall be applicable to the Option Term in the event of ~~this Section 3.2~~exercise by Lessee; provided, however, that the Term and the Base Rent shall be modified as provided herein and Lessee shall have no further options to extend the Term thereafter. ~~The Extension Term shall commence~~Subject to adjustment as hereafter provided, ~~if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise~~ the ~~Extension~~ Base Rent for the Option ~~by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension~~ Term shall be adjusted to the ~~fair market~~ greater of (i) the Base Rent for the last month of the Term or (ii) One hundred (100%) percent of the Prevailing Market Rent, described below. The “Prevailing Market Rent” shall be equal to the rental rate (per square foot for comparable buildings/space in the “same area, where the Premises is located. In determining the Prevailing ~~Rental Rate”) at~~ Market Rent, the ~~commencement of~~ particular configuration, frontage along a public thoroughfare, signage visible to the ~~Extension Term~~public, ~~for extensions of space of equivalent quality, size, utility~~parking facilities, and general level of quality of improvements and location in of each comparison building/space shall be taken into account. If Lessee has timely exercised the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice Option to Extend, ~~Landlord~~ Lessor shall ~~deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination~~ notify Lessee in writing of the ~~Prevailing Rental Rate~~proposed new Base Rent determined by Lessor for the Option Term at least ninety (90) days prior to the commencement date of the Option Term. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice Lessee objects to the ~~other of the name and address of an arbitrator designated~~ amount determined by ~~the party giving such notice. If either party fails to give notice of such designation~~ Lessor within ~~10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business~~ fifteen (15) days after receipt of such ~~second~~ notice, the amount stated in such notice shall be the new Base Rent. If ~~either party fails~~ Lessee objects to ~~give~~ Lessor’s proposal, then the new Base Rent shall be determined by a MAI appraiser chosen by Lessor and approved by Lessee. If Lessee does not disapprove Lessor’s choice of an appraiser by delivery of written notice of disapproval within five (5) days of written notice of such ~~designation within such second 10 business day period~~choice by Lessor, ~~the first arbitrator chosen~~ then Lessor’s appraiser shall ~~make the determination~~ be deemed to be approved by Lessee. If Lessee does not approve Lessor’s choice of an appraiser, then Lessee’s notice of disapproval shall name a MAI Appraiser, designated by Lessee and each of Lessor’s appraiser and Lessee’s appraiser shall appoint a third MAI Appraiser and each appraiser shall determine the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and TenantMarket Rent. The two ~~arbitrators~~ amounts which are closest shall ~~have 10 business days after~~ be averaged, and such average shall be the ~~receipt~~ Prevailing Market Rent for purposes of ~~notice~~ this Option to Extend. The cost of any common appraiser shall be split equally by Lessor and Lessee, and if three appraisers are utilized, Lessor and Lessee shall each ~~other’s determinations to confer with each other~~ be responsible for the fees and ~~to attempt to reach agreement as to the determination~~ costs of the ~~Prevailing Rental Rate~~appraiser which it appoints. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators Base Rent shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before been determined by the commencement date of the ~~Extension~~ Option Term, ~~Landlord~~ then until it is determined, Lessee shall pay Base Rent when due during the Option Term determined using Lessor’s proposed Base Rent, and ~~Tenant~~ when the actual adjusted Base Rent is determined, either Lessee shall ~~execute an amendment~~ pay to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises Lessor any additional rent due for the ~~Extension Term~~ months which have elapsed in ~~its then-current condition~~the Option Term, ~~and Landlord~~ or Lessor shall ~~have no obligation~~ credit any excess payment for the elapsed months to ~~provide to Tenant any allowances (e.g., moving allowance, construction allowance, and~~ the ~~like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option~~next Base Rent becoming due.

Appears in 1 contract

Samples: Standard Industrial/Commercial Single Tenant Lease (Napster Inc)

Option to Extend. If Tenant ~~shall have one option~~ is not in default at the time Tenant gives notice of its desire to ~~extend~~ renew or at the ~~Term~~ commencement of ~~this~~ the Renewal Term, Tenant may renew the Lease ~~(the “Extension Option”)~~ for one (1) additional period of 7 FIVE (5) years (the “~~Extension~~ Renewal Term”~~) on the terms and conditions of this Section 3.2. The Extension Term shall commence~~), ~~if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option~~ by delivering written notice ~~(a “Notice to Extend”) of its exercise~~ of the ~~Extension Option~~ exercise thereof to Landlord not earlier than fifteen (15) months nor later than ~~April 1, 2017~~twelve (12) months before the expiration of the Lease Term. ~~3.2.1~~ (a) The ~~Net~~ Base Rent payable for each month during the ~~Extension~~ Renewal Term shall be the ~~fair market~~ prevailing rental rate (the “Prevailing Rental Rate”) ), at the commencement of the ~~Extension~~ Renewal Term, for ~~extensions~~ space in the Project, or comparable buildings in vicinity of ~~space~~ the Project, of equivalent quality, size, ~~utility~~utility and location, ~~and location in the Mendota Heights area, talking into account the terms of this Lease,~~ with the length of the ~~Extension~~ Renewal Term~~, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at~~ . Within thirty (30) days after receipt of Tenant’s ~~sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice~~ notice to ~~Extend~~renew, Landlord shall deliver to Tenant written notice (of the ~~“PRR Notice”) advising~~ proposed Prevailing Rental Rate and shall advise Tenant of the proposed adjustment to Base Rent, if any. Tenant shall, within ten (10) days after receipt of Landlord’s notice, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the Prevailing Rental Rate. ~~Unless~~ Tenant ~~delivers to Landlord~~shall, within 30 ten (10) days after ~~receiving~~ receipt of Landlord’s notice, notify Landlord in writing whether Tenant accepts or rejects Landlord’s determination of the ~~PRR Notice, a written acceptance of~~ Prevailing Rental Rate. (b) If Tenant rejects Landlord’s determination of the Prevailing Rental Rate, Tenant may notify Landlord, within ten (10) days after Landlord delivers notice of the Prevailing Rental Rate to Tenant, of the rental rate that Tenant asserts as the Prevailing Rental Rate (“Tenant’s Rate”) applicable hereunder. Thereafter, each party shall, within ten (10) days after the Tenant submits Tenant’s Rate, designate by written notice to the other party one (1) qualified real estate broker of good reputation, having at least five (5) years’ experience in the Fremont metropolitan area real estate market. The two (2) brokers so designated shall, together immediately select a third (3rd) similarly qualified broker and within twenty (20) days after such selection, each of the three (3) brokers shall independently and simultaneously make a determination as to what each believes to be the Prevailing Rental Rate. The Prevailing Rental Rate for purposes of the renewal term shall be ~~determined in accordance with Section 3.2.2 below. 3.2.2~~ the average of the two (2) closest (to each other) determinations of the Prevailing Rental Rate as asserted by the three (3) brokers. Each party shall bear the costs and fees of the broker they select and the costs and fees of the third (3rd) broker shall be shared equally by the Landlord and Tenant. If Tenant ~~does not accept~~ timely notifies Landlord that Tenant accepts Landlord’s determination of the Prevailing Rental Rate ~~within 30 days after Landlord’s PRR Notice~~ or the Prevailing Rental Rate is determined as provided above, then, on or before the commencement date of the Renewal Term, Landlord and Tenant shall execute an amendment to the Lease extending the Term on the same terms provided in ~~Section 3.2.1~~the Lease, except as follows: (A) Base Rent shall be adjusted to the Prevailing ~~Rent Rate shall be determined as follows.~~ Rental Rate; and (B) Tenant shall ~~submit~~ have no further renewal option unless expressly granted by Landlord in writing. (c) If Tenant fails to ~~Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising~~ timely notify Landlord in writing that Tenant ~~disagrees with~~ accepts or rejects Landlord’s determination of the Prevailing Rental ~~Rate in the PRR Notice~~Rate, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other time being of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers essence with respect ~~to comparable commercial office buildings in the southeastern Twin Cities market~~thereto, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section ~~3.2~~ 3.6 shall ~~automatically~~ terminate ~~immediately upon~~ and Tenant shall have no right to renew the ~~occurrence of any of the following:~~ Lease. Tenant’s rights under this Section 3.6 shall terminate if (1) ~~either~~ the Lease as amended by this ~~Lease~~ Amendment or Tenant’s right to possession of the Total Premises is terminated; , or (2) Tenant fails to timely exercise ~~the Extension Option~~its option under this Section 3.6, time being of the essence with respect to Tenant’s ~~exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend~~exercise thereof. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Lease (Spectranetics Corp)

Option to Extend. ~~Tenant~~ Provided that Lessee is not in default under the terms of the Lease, Lessee shall have ~~one option~~ two separate and successive options to extend the ~~Term of this~~ Lease (term under the ~~“Extension Option”) for one additional period of 7 years (the “Extension Term”) on the~~ same terms and conditions contained in the Lease and this First Addendum (including annual Base Rent increases of ~~this Section 3.2~~Two and one-half percent (2.5%)) for successive three (3) year periods from either the expiration date of the initial term or, if the first option has been exercised, of the first extended term (“Renewal Term”). The ~~Extension Term shall commence~~option must be exercised, if at all, ~~on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option~~ by delivering written notice ~~(a “Notice~~ to ~~Extend”) of its exercise~~ Lessor no later than 180 days before the end of the ~~Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during~~ Lease term or the Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. first extended term Within 30 days after receiving ~~Tenant~~Lessee’s ~~Notice to Extend~~notice of exercise, ~~Landlord~~ Lessor shall ~~deliver to Tenant written notice~~ compute the rent for the Renewal Term which shall be the Fair Market Rent (~~the “PRR Notice~~‘‘FMR”) ~~advising Tenant of Landlord’s determination~~ for the Premises on a gross rent basis as provided below. Lessor shall then notify Lessee in writing of the ~~Prevailing Rental Rate~~resulting amount. ~~Unless Tenant delivers~~ FMR for the Renewal Term shall mean the monthly gross rent for the Premises, based on tenancies (for a term comparable to ~~Landlord~~the Renewal Term) covering industrial space of comparable size and quality to the Premises in comparable buildings in comparable locations in the same city as the Premises, ~~within 30~~ taking into account the condition of the Premises in its then “as is” condition. If Lessor and Lessee have not agreed on an FMR by 60 days after ~~receiving the PRR Notice, a written acceptance of Landlord~~Lessee’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day periodexercise, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall ~~bear all of its own costs~~ appoint an appraiser who shall be an independent, disinterested person knowledgeable in ~~connection with such arbitration)~~rental rates and lease transactions in the same city as the Premises. The ~~determination of the Prevailing Rental Rate in accordance with this Section 3.2.2~~ appraisers shall be ~~final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be~~ either real estate ~~brokers with~~ appraisers or consultants who have at least 5 10 years of continuous experience in the business of ~~acting as real estate agents~~ appraising or ~~brokers with respect to comparable commercial office buildings~~ are knowledgeable in rental rates and lease transactions in the ~~southeastern Twin Cities market, exclusive~~ same city as the Premises. The two appraisers appointed shall appoint a third appraiser within 10 days of ~~any broker from any brokerage firm currently representing (~~the appointment of the last appraiser. The three appraiser shall meet and determine FMR on or ~~who had previously represented~~ before 90 days after the date of Lessee’s notice of exercise and a decision of the three appraisers shall be controlling. In the event that the three appraisers are unable to agree upon the base rent within the ~~preceding 2-year period~~stipulated period of time, the individual findings of the three (3) ~~either Landlord or Tenant. 3.2.3 The Extension Option~~ appraisers shall be added together and ~~all of Tenant’s rights~~ their total divided by three; the resulting quotient shall be the base rent for the Premises during the remaining term under ~~this Section 3.2 shall automatically terminate immediately upon the occurrence of~~ consideration. Should any of the ~~following: (1) either this Lease~~ individual appraisals is more than 15% above or ~~Tenant’s right to possession~~ below the middle appraisal, it shall not be considered in determining the FMR. If only one appraisal is disregarded, then the other two appraisals shall be added together and their total divided by two and the resulting quotient shall be the base rent. If both the high and low appraisals are disregarded, then the middle appraisal shall be the base rent. In no event, however, shall the base monthly rent for the extended term be less than the monthly rent at the end of the ~~Premises is terminated; (2) Tenant fails to timely exercise~~ initial term. Each party shall bear one-half the ~~Extension Option, time being~~ cost of the ~~essence with respect to Tenant’s exercise;~~ appraisals. The third appraiser shall be an unrelated entity that has not acted in any capacity for either the Lessor or ~~(3) an uncured Event of Default exists at~~ the ~~time Tenant delivers~~ Lessee. Should arbitration become necessary, Lessor and Lessee shall also equally bear the ~~Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date~~ costs of the ~~Extension Term, Landlord and Tenant~~ arbitration. Once the parties agree on the monthly gross rent for the extended term they shall immediately execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease ~~Date. Landlord shall lease to Tenant~~ stating the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Optionnew monthly gross rent.

Appears in 1 contract

Samples: Lease Agreement (Fox Factory Holding Corp)

Option to Extend. ~~Tenant~~ Lessee shall have ~~one~~ the option to extend the ~~Term~~ term of this Lease (~~the “Extension~~ "Option~~”) for one additional period of 7 years (the “Extension Term”~~") on all of the terms, conditions, covenants and provisions, contained in this Lease, except for the Monthly Rent, for two (2) additional terms ~~and conditions~~ of ~~this Section 3.2~~five (5) years each following the Termination Date. The ~~Extension~~ Option Term shall ~~commence, if at all,~~ commence on ~~April 1, 2018, and end on March 31, 2025~~the day immediately following the Termination Date. ~~Tenant~~ Lessee may exercise the ~~Extension~~ Option by ~~delivering~~ giving written notice ~~(a “Notice to Extend”)~~ of ~~its~~ exercise of the ~~Extension~~ Option to ~~Landlord not later than April 1~~Lessor at least one hundred twenty (120) days before the Termination Date. If Lessee is in default on the date of giving the Option Notice, ~~2017. 3.2.1 The Net Rent payable for each month during~~ the ~~Extension Term~~ Option Notice shall be totally ineffective. If the ~~fair market rental rate (~~Option Notice is not given, the ~~“Prevailing Rental Rate”)~~ Option shall automatically expire and be of no further force or effect. The Option granted to Lessee in this Lease is personal to the original Lessee and may be exercised only by the original Lessee while physically occupying the Premises. The Option may not be exercised or assigned, voluntarily or involuntarily, by or to any person or entity other than Lessee. Any consent by Lessor to an assignment of the Lease or a sublet of the Premises, or any portion thereof, shall not be construed as a waiver of this prohibition. Monthly Rent during each Option period shall be at Fair Market Value, as determined by Lessor, at the ~~commencement of~~ time Lessor receives the ~~Extension Term, for extensions of space of equivalent quality, size, utility,~~ Option Notice. In the event the Lessor and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does Lessee cannot accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the ~~Prevailing Rental Rate on~~ new base rent, the matter shall be submitted for decision to a panel of three arbitrators. Lessor and Lessee shall each appoint one arbitrator who shall by profession be a licensed commercial real estate broker or ~~before~~ an MAI real estate appraiser, and who shall be familiar with the ~~date~~ premises Building and have been active in the brokering or appraisal of properties in an area within a three (3) mile radius of the ~~“Outside Date”~~Premises. Each such arbitrator shall be appointed within fifteen (15) ~~that is 30~~ days after ~~Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give~~ Lessee's notice to ~~the other~~ Lessor of ~~the name and address of an arbitrator designated~~ its election to have New Base Rent determined by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenantthis arbitration procedure. The two arbitrators so appointed shall ~~have 10 business~~ within fifteen (15) days ~~after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination~~ of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end date of the ~~10-business day period, then~~ appointment of the ~~two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to~~ last appointed arbitrator agree upon ~~the designation of~~ and appoint a third arbitrator ~~within 10 business days~~who shall be qualified under the same criteria set forth hereinabove for qualification of the initial two arbitrators. Failing such agreement, ~~then~~ either ~~party may apply~~ Lessor or Lessee shall have the right to ~~the American Arbitration Association or any successor having jurisdiction~~ petition for the ~~designation~~ appointment of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator by the Presiding Judge of the Superior Court of the County of San Diego. The three arbitrators shall within thirty (30) days of the appointment of the third arbitrator reach a decision as to whether the parties shall use Lessor's or Lessee's proposed New Base Rent, and shall notify Lessor and Lessee therefore. The decision of the majority of the three arbitrators shall be binding upon ~~Landlord~~ Lessor and ~~Tenant~~Lessee. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be ~~split evenly between~~ paid by Lessor and Lessee equally. In no event, shall the ~~parties~~ monthly rent for the Option term be less than a four percent (~~and each party shall bear all of its own costs in connection with such arbitration)~~4%) increase over the previous year's monthly rent. ~~The determination~~ Upon agreement to the terms of the ~~Prevailing Rental Rate in accordance with this Section 3.2.2~~ Option, Lessor shall ~~be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any~~ immediately execute an Extension of ~~the provisions of this Lease~~Lease Agreement. All ~~arbitrators shall be real estate brokers with at least 5 years~~ rights of ~~continuous experience in the business of acting as real estate agents or brokers~~ Lessee with respect to ~~comparable commercial office buildings in~~ the ~~southeastern Twin Cities market, exclusive~~ Option shall terminate and be of ~~any broker from any brokerage firm currently representing (~~no further force or ~~who had previously represented within~~ effect if Lessor and Lessee do not come to agreement on the ~~preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2~~ Option. Neither Lessor nor Lessee shall ~~automatically terminate immediately upon~~ have the ~~occurrence of any of the following: (1) either this Lease or Tenant’s~~ right to ~~possession of~~ have a court or third party set the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to ExtendMonthly Rent. ALL OTHER TERMS AND CONDITIONS OF THE ABOVE REFERENCED LEASE SHALL REMAIN IN FULL FORCE AND EFFECT. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Standard Industrial/Commercial Multi Tenant Lease (Natural Alternatives International Inc)

Option to Extend. Subject to the provisions hereinafter set forth in this Section XI, and provided that Tenant ~~shall have one~~ is not in default hereunder at any time from the exercise of the option until the Expiration Date, Landlord hereby grants Tenant the option to extend the Lease Term on the same terms, conditions and provisions as contained in this Lease, except as otherwise expressly provided herein, for one (1) period of ~~this Lease~~ either one (1) year (the ~~“Extension Option”~~"ONE YEAR EXTENSION PERIOD") ~~for one additional period of 7~~ or seven (7) years (the “"SEVEN YEAR EXTENSION PERIOD"). Such period, regardless of its duration, may also be referred to herein generally as the "EXTENSION PERIOD"). If exercised in accordance herewith, the Extension ~~Term”)~~ Period shall commence on the ~~terms and conditions of this Section 3.2~~first (1st) day after the Expiration Date. ~~The~~ If Tenant delivers an "Extension ~~Term shall commence~~Notice" as hereinafter provided, ~~if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise~~ the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Lease Term shall be extended on the ~~fair market rental rate (~~same terms, conditions and provisions as contained herein except that the ~~“Prevailing Rental Rate”) at~~ Annual Base Rent during the ~~commencement~~ One Year Extension Period, if elected by Tenant, shall be $12.00 per square foot of Rentable Area of the ~~Extension Term, for extensions of space of equivalent quality, size, utility~~Premises per year, and ~~location in~~ the ~~Mendota Heights area~~Annual Base Rent during the Seven Year Extension Period, ~~talking into account~~ if elected by Tenant, shall reflect the ~~terms of this Lease~~"Prevailing Market" rate, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be as determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section ~~3.2.2 shall be final and binding in fixing~~ XI. Not less than twelve (12) months prior to the Expiration Date, Tenant may request, by written notice to Landlord (the "PRELIMINARY NOTICE"), that Landlord determine the Prevailing ~~Rental Rate~~Market rate for the Premises as it would be during the Seven Year Extension Period if Tenant elected to exercise its option for such Seven Year Extension Period. ~~The arbitrators~~ Within ten (10) days following Landxxxx'x xeceipt of the Preliminary Notice, Landlord will notify Tenant of such Prevailing Market rate as reasonably determined by Landlord. If Tenant does not agree with Landxxxx'x xetermination of such Prevailing Market rate, Tenant, by written notice to Landlord (the Arbitration Notice") within five (5) days after being advised of Landlord's determination of the Prevailing Market rate, shall ~~not~~ have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be have the Prevailing ~~Rental Rate. Tenant shall have no further extension or renewal option other than~~ Market rate determined using the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.following procedures:

Appears in 1 contract

Samples: Lease Agreement (Ebs Building LLC)

Option to Extend. Landlord hereby grants to Tenant ~~shall have~~ one option (the "Option") to extend the ~~Term~~ term of ~~this Lease (~~the ~~“Extension Option”)~~ Lease, for ~~one~~ an additional period of 7 three (3) years (the ~~“Extension~~ "Option Term~~”) on the terms and conditions of this Section 3.2~~"). The ~~Extension Term shall commence~~Option must be exercised, if at all, ~~on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option~~ by ~~delivering~~ written notice (~~a “Notice to Extend”~~the "Option Notice") ~~of its exercise of the Extension Option~~ delivered by Tenant to Landlord not later than ~~April 1~~six (6) months prior to the end of the Term. Further, ~~2017. 3.2.1~~ 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 Term, Tenant (i) has received a notice of default under this Lease, which default has not been cured within any applicable cure period as of the date in question, (ii) has assigned all or any portion of this Lease or its interest herein except in a Permitted Transfer, or (iii) has sublet fifty percent (50%) or more of the Premises. Provided Tenant has properly and timely exercised the Option, the term of the Lease shall be extended by the Option Term, and all terms, covenants and conditions of the Lease shall remain unmodified and in full force and effect, except that (y) Tenant shall pay initial base rent determined as set forth below in this paragraph, and (z) after the exercise of the Option, Tenant shall have no options remaining. Landlord shall have no obligation whatsoever in connection with any extension of the term of this Lease to remodel, alter or improve the Premises for use by Tenant, to provide any improvement or construction allowance to Tenant, or to pay or reimburse Tenant for any remodeling, alterations or improvements to the Premises. The ~~Net Rent payable for each month~~ initial base rent during the ~~Extension~~ Option Term shall be ninety-five percent (95%) of the fair market rental value of the Premises as of the commencement of the Option Term, determined as provided below. As used herein, "fair market rental value" shall mean the projected prevailing rental rate as of the first day of the Option Term for similar commercial space improved or presumed to be improved with tenant improvements of substantially similar age, quality and layout as then existing in the Premises (but not including the value of any Alterations installed by Tenant) and situated in similar office buildings in the Cupertino market, including without limitation annual increases in the base rent. -26- Promptly after delivery of the Option Notice, Landlord and Tenant shall meet and confer and attempt to agree upon the fair market rental value of the Premises. If they are not able to agree, either party may give written notice to the other that the fair market rental value is to be determined by appraisal as provided herein. Within twenty (20) days following such notice, each party shall by written notice to the other appoint an independent and qualified appraiser. Each of such appraisers shall, within thirty (30) days following appointment, give written notice to both parties of the appraiser's determination of fair market rental value. If the determinations of such appraisers are in agreement, the initial base rent for the Option Term shall be ninety-five percent (95%) of the fair market rental value so determined. If the difference between such determinations is ten percent (10%) of the higher appraisal or less, the average of the two determinations shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Ratevalue. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day perioddifference is more than such percentage, then during the ~~two arbitrators shall promptly designate a third arbitrator. If~~ ten-day period following the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Termappraisers' determinations, Landlord and Tenant shall ~~execute~~ again meet and confer and attempt to agree upon the fair market rental value of the Premises. If they are unable to agree, the two appraisers shall appoint an ~~amendment~~ independent M.A.I. appraiser with not less than five (5) years experience with office leases in the area in which the building is located. Within thirty (30) days following appointment, the third appraiser shall on written notice to ~~this Lease extending~~ the ~~Term~~ parties determine the fair market rental value which is no less and ~~adjusting~~ no more than the ~~Net Rent to~~ values determined by the other two appraisers, which determination shall be binding upon the ~~Prevailing Rental Rate~~parties. Each party shall pay the fees and expenses of the appraiser appointed by it and one-half of the fees and expenses of the third appraiser. If base rent has not been determined as of the commencement of the Option Term, Tenant shall ~~have no further extension or renewal option other than~~ pay the ~~Extension Option except pursuant to an express written agreement~~ Base Rent in the amount specified by Landlord ~~executed and delivered after the Lease Date~~until base rent is finally determined. ~~Landlord~~ Upon such determination any overpayment or underpayment of base rent shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Optionbe reconciled.

Appears in 1 contract

Samples: Office Building Lease (Wave Systems Corp)

Option to Extend. While the Lease is in full force and effect, provided the Tenant ~~shall have one option to extend~~ is not in default of any of the ~~Term of this Lease (the “Extension Option”) for one additional period of 7 years (the “Extension Term”) on the terms~~ terms, covenants and conditions ~~of this Section 3.2. The Extension Term shall commence~~thereof, ~~if at all, on April 1, 2018~~beyond any applicable notice and cure periods, and ~~end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”)~~ further provided that United Bank of ~~its exercise~~ Philadelphia is itself occupying all of the ~~Extension Option~~ Premises then demised to ~~Landlord not later than April 1~~Tenant, ~~2017. 3.2.1 The Net Rent payable for~~ in each ~~month during~~ case both as of the ~~Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at~~ time of option exercise and as of the commencement of the herein additional term, Tenant shall have the right or option (the "Extension ~~Term, for extensions of space of equivalent quality, size, utility, and location in~~ Option") to extend the ~~Mendota Heights area, talking into account the terms~~ original term of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction Lease for ~~the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the~~ one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) ~~either this Lease or Tenant’s right to possession~~ period of five (5) years (the "Option Period"). Such extension of the ~~Premises is terminated;~~ Lease Term shall be on the same terms, covenants and conditions as provided for in the original term except that (2a) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further ~~extension~~ option to extend the Lease Term, (b) the Base Rent shall be ninety-five percent (95%) of the fair market rental value of the Premises, as determined by Landlord, taking into account new leases then currently being negotiated or ~~renewal option~~ executed in comparable space located in the Building, including provisions for subsequent increases and other adjustments, allowances for tenant improvements and other market incentives, or if no new leases are then being negotiated or executed in the Building, the fair market rental value shall be determined by Landlord taking into account new leases then being negotiated or executed for comparable space located elsewhere in similar office properties or equivalent buildings located in Philadelphia, Pennsylvania (the fair market rental value as determined by Landlord in accordance with this clause (b) is referred to herein as the "Fair Market Rental Value"), provided, however, that in no event shall the Base Rent on account of any additional term be less than the ~~Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant~~ annual Base Rent payable for the Premises ~~for~~ as of the ~~Extension Term in its then-current condition~~date immediately preceding the commencement of such additional term, and (c) Landlord shall have no obligation to ~~provide~~ prepare, refurbish or construct the Premises or any part thereof prior to ~~Tenant any allowances (e.g., moving allowance, construction allowance, and~~ the ~~like) or other tenant inducements in connection with Tenant’s exercise~~ commencement of the Option Period or otherwise provide any amount of improvement allowance in respect of the Premises. Notice (the "Option Notice") of Tenant's intention to exercise the Extension ~~Option~~Option must be given to Landlord, in writing, at least twelve (12) months prior to the then current expiration of the Lease Term or the Extension Option shall lapse and be of no further force or effect, time being of the essence.

Appears in 1 contract

Samples: Lease (United Bancshares Inc /Pa)

Option to Extend. So long as this Lease remains in full force and effect without any default by Tenant ~~shall have one option to~~ beyond the applicable grace period, Tenant may extend the Term of this Lease for five (5) years by giving notice of such election to Landlord at least six (6) months prior to the ~~“Extension Option”) for one additional period of 7 years (the “Extension Term”)~~ originally-scheduled Termination Date. Such extension shall be on the ~~terms~~ same terms, conditions and ~~conditions of this Section 3.2. The Extension Term~~ other provisions set forth herein, except that Tenant shall ~~commence~~have no further option to extend said Term, ~~if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise~~ provided however that Yearly Fixed Rent shall be increased effective as of the ~~Extension Option~~ commencement of such extension period to ~~Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be~~ reflect the fair market rental ~~rate (the “Prevailing Rental Rate”) at the commencement~~ value of the ~~Extension Term,~~ Demised Premises for ~~extensions~~ the balance of ~~space of equivalent quality, size, utility, and location in~~ the ~~Mendota Heights area, talking into account the terms~~ Term of this Lease, ~~the length of the Extension Term,~~ taking into account Tenant’s obligation to pay Additional Rent and all other ~~relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made~~provisions of this Lease. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate Said fair market rental value shall be determined ~~in accordance with Section 3.2.2 below. 3.2.2 If~~ by Landlord and Tenant, provided however that if Landlord and Tenant ~~does~~ cannot ~~accept Landlord’s determination~~ mutually agree upon such value within thirty (30) days following the exercise of ~~the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1~~such option, ~~the Prevailing Rent Rate~~ then such value shall be determined by appraisal as ~~follows~~hereinafter set forth. Landlord and Tenant shall ~~submit to Landlord~~each notify the other, within 30 ten (10) days ~~after receiving~~ following expiration of the ~~PRR Notice~~aforesaid thirty (30) day period, ~~a notice~~ of (~~the~~ a) its opinion as to such fair market rental value (“~~PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with~~ Landlord’s ~~determination of~~ Valuation” or “Tenant’s Valuation”, as the ~~Prevailing Rental Rate in the PRR Notice~~case may be) and (b) its chosen appraiser. Such two appraisers shall within a further ten (10) days (a) elect a third appraiser, notifying Landlord and Tenant thereof, and (iib) ~~proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail~~prepare written statements setting forth their respective opinions as to such fair market rental value, ~~despite good-faith negotiations, to agree on the Prevailing Rental Rate on~~ which opinions shall not be shared with or ~~before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice~~ otherwise disclosed to the ~~other of the name and address of an arbitrator designated by the party giving such notice. If either party fails~~ third appraiser, who shall proceed forthwith to ~~give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice~~ prepare a statement setting forth his or her own independent opinion as to such ~~party requiring such party’s appointment~~ value, whereupon copies of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen all three appraisers’ statements shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and be submitted to Landlord and Tenant. ~~The two arbitrators~~ Yearly Fixed Rent for such extension period shall ~~have 10 business days after the receipt~~ then be established by reference to whichever of ~~notice of each other~~Landlord’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Valuation or Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that ’s Valuation most closely approximates (a) the third ~~arbitrator~~appraiser’s ~~own determination~~ opinion of value, if such value is identical to that set forth in the ~~Prevailing Rental Rate~~opinion of value submitted either by Landlord’s appraiser or by Tenant’s appraiser, ~~and that choice~~ or otherwise (b) the mean opinion of value submitted by the ~~third arbitrator shall be binding upon Landlord~~ three appraisers, determined by disregarding the highest and ~~Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators~~lowest such values. Each party shall bear the ~~cost~~ expense of the ~~arbitrator it selects. The remaining cost~~ appraiser chosen by such party pursuant to this Section, and the parties shall equally share the expense of the ~~arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with~~ third appraiser. If Yearly Fixed Rent for such ~~arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators~~ extension period shall not have been determined prior to the ~~power~~ commencement thereof, Tenant shall continue to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists pay Yearly Fixed Rent at the ~~time Tenant delivers the Notice~~ rate most recently in effect, subject to ~~Extend~~retroactive adjustment once Yearly Fixed Rent for such period has in fact been determined. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Lease Agreement (Viryanet LTD)

Option to Extend. ~~Tenant shall have one~~ If the option to extend ~~the Term of this Lease~~ (the ~~“Extension~~ "Option”") set forth in Section 37 of the Lease is exercised, the basic rent for the Premises shall become ninety five percent (95%) of the then current fair market monthly rent ("Fair Market Rent") for one additional period of 7 years (the “Extension Term”) on the terms and conditions of this Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant as of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the ~~Extension Term~~applicable extended term, ~~Landlord~~ as determined by the agreement of the parties or, if the parties cannot agree within sixty (60) days prior to the commencement of such extended term, then by an appraisal. All other terms and ~~Tenant~~ conditions contained in the Lease and this Addendum, as the same may be amended from time to time by the parties in accordance with the provisions of the Lease, shall ~~execute~~ remain in full force and effect and shall apply during the Option term. If it becomes necessary to determine the Fair Market Rent by appraisal, industrial real estate brokers who are currently active in the local market and who have at least five (5) years experience leasing similar space located in the vicinity of the Premises shall be appointed and shall act in accordance with the following procedures: (i) If the parties are unable to agree on the Fair Market Rent within the allowed time, either party may demand an ~~amendment~~ appraisal by giving written notice to ~~this Lease extending~~ the ~~Term and adjusting the Net Rent~~ other party, which demand to be effective must state the ~~Prevailing Rental Rate~~name, address and qualifications of a broker selected by the party demanding an appraisal (the "Notifying Party"). ~~Tenant~~ Within ten (10) days following the Notifying Party's appraisal demand, the other party (the "Non-Notifying Party") shall ~~have~~ either approve the broker selected by the Notifying Party or select a second properly qualified broker by giving written notice of the name, address and qualification of such broker to the Notifying Party. If the Non-Notifying Party fails to select a broker within the ten (10) day period, the broker selected by the Notifying Party shall be deemed selected by both parties and no ~~further extension or renewal option~~ other ~~than~~ broker shall be selected. If two brokers are selected, they shall select a third appropriately qualified broker. If the ~~Extension Option except pursuant~~ two brokers fail to ~~an express written agreement~~ select a third qualified broker, the third broker shall be appointed by ~~Landlord executed and delivered after~~ the ~~Lease Date. Landlord shall lease to Tenant~~ then presiding judge of the county where the Premises ~~for~~ are located upon application by either party. (ii) If only one broker is selected, that broker shall notify the ~~Extension Term~~ parties in simple letter form of its ~~then-current condition~~determination of the Fair Market Rent within fifteen (15) days following his selection, which appraisal shall be conclusively determinative and ~~Landlord~~ binding on the parties as the appraised Fair Market Rent. If multiple brokers are selected, the brokers shall ~~have no obligation~~ meet not later than ten (10) days following the selection of the last broker. At such meeting the brokers shall attempt to ~~provide to Tenant any allowances~~ determine the Fair Market Rent as of the commencement date of the extended term by the agreement of at least two (~~e.g.~~2) of the brokers. If two (2) or more of the brokers agree on the Fair Market Rent at the initial meeting, ~~moving allowance, construction allowance,~~ such agreement shall be determinative and binding upon the parties hereto and the ~~like) or other tenant inducements~~ agreeing brokers shall, in ~~connection with Tenant’s exercise~~ simple letter form executed by the agreeing brokers, forthwith notify both Lessor and Lessee of the ~~Extension Option~~amount set by such agreement. If multiple brokers are selected and two (2) brokers are unable to agree on the Fair Market Rent, all brokers shall submit to Lessor and Lessee an independent appraisal of the Fair Market Rent in simple letter form within twenty (20) days following appointment of the final broker. The parties shall then determine the Fair Market Rent by averaging the appraisals; provided that any high or low appraisal, differing from the middle appraisal by more than ten percent (10%) of the middle appraisal, shall be disregarded in calculating the average. (iii) If only one broker is selected, then each party shall pay one-half of the fees and expenses of that broker. If three brokers are selected, each party shall bear the fees and expenses of the broker it selects and one-half of the fees and expenses of the third broker. (iv) The brokers' determination of Fair Market Rent shall be based on rental of space of the same age, construction, size and location as the Premises with comparable improvements installed therein.

Appears in 1 contract

Samples: Building Lease Agreement (Drexler Technology Corp)

Option to Extend. ~~Tenant shall have one option to~~ Tenant, at its option, may extend the Term of this Lease ~~(the “Extension Option”)~~ for one ~~additional~~ further period ~~of 7 years~~ (~~the~~ “~~Extension~~ Extended Term”) ~~on the terms and conditions~~ of ~~this Section 3.2. The Extension Term shall commence~~five (5) years, ~~if at all,~~ commencing on April 1, ~~2018,~~ 2005 and ~~end~~ expiring on March 31, ~~2025~~2010. The option for such extension may be exercised by Tenant ~~may exercise the Extension Option~~ by ~~delivering~~ giving written notice ~~(a “Notice to Extend”) of its exercise of the Extension Option~~ thereof to Landlord not earlier than October 1, 2003, nor later than ~~April 1~~March 31, ~~2017. 3.2.1~~ 2004, provided that at the time of such notice and on the Expiration Date, Tenant shall not be in Default (as defined in Section 7.1) in the performance of any of the terms and provisions of this Lease beyond any applicable grace periods. The ~~Net Rent payable for each month during the Extension~~ Extended Term shall be on like terms, covenants, agreements, provisions, conditions and limitations as are contained herein, except for the provisions hereof that are by their terms applicable exclusively during the original Term (including this extension option) and except further that the rental payable by Tenant during the Extended Term shall be equal to the fair market rental ~~rate (the “Prevailing Rental Rate”) at the commencement~~ of the ~~Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length~~ Premises as of the ~~Extension Term,~~ date of Tenant’s exercise of the extension option. Landlord and ~~all other relevant factors~~Tenant shall negotiate in good faith to agree upon such fair market rental, but ~~assuming that no improvements Tenant has made~~ if the parties are not able to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, agree within 30 days after ~~receiving the PRR Notice, a written acceptance of Landlord~~Tenant’s ~~determination~~ exercise of the ~~Prevailing Rental Rate~~extension option (the “Negotiation Period”), the ~~Prevailing Rental Rate~~ fair market rental of the Premises shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be conclusively determined as follows~~. Tenant shall submit to Landlord, within 30~~ : Within ten (10) business days after ~~receiving~~ the ~~PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination~~ end of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection NoticeNegotiation Period, Landlord and Tenant ~~each~~ shall ~~give~~ each, by written notice to the other party, (1) designate a licensed real estate broker, having substantial experience during the prior five years in leasing office space in Washington D.C. (a “Qualified Broker”) and (2) set forth such party’s opinion (the “Landlord’s Opinion” or the “Tenant’s Opinion”) as to the fair market rental of the ~~name and address of an arbitrator designated by the party giving such notice~~Premises. If either party fails to ~~give notice of such designation within 10 business days after the Outside Date~~timely designate a Qualified Broker, the ~~other party~~ one Qualified Broker who has been designated shall ~~provide an additional notice to such party requiring such party~~select either the Landlord’s ~~appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period,~~ Opinion or the ~~first arbitrator chosen shall make~~ Tenant’s Opinion as the ~~determination~~ fair market rental of the ~~Prevailing Rental Rate alone~~Premises. If two ~~arbitrators~~ Qualified Brokers have been timely designated, ~~both arbitrators~~ those two Qualified Brokers shall, within ~~10 business~~ ten (10) days ~~following~~ after the designation of the ~~second arbitrator, make their determination~~ later of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Ratetwo, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third ~~arbitrator. If~~ Qualified Broker, and thereafter the ~~two arbitrators fail~~ three Qualified Brokers shall, by majority vote, select either the Landlord’s Opinion or the Tenant’s Opinion as the fair market rental of the Premises (with no right to ~~agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or~~ make any ~~successor having jurisdiction for the designation of such arbitrator~~other determination). The ~~third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out~~ fair market rental of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator Premises determined pursuant to this Section 1.6 shall be binding upon both Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Office Lease (Blackboard Inc)

Option to Extend. ~~Tenant~~ Provided Lessee has not been and is not in default of any term or condition of this Lease as of the commencement of the renewal term, lessee shall have the one option to ~~extend~~ renew the ~~Term~~ term of ~~this Lease (~~the ~~“Extension Option”)~~ lease for one additional ~~period of 7 years (the “Extension Term”)~~ five year term, on the same terms and conditions of ~~this Section 3.2~~the Lease, except that the Base Rent shall be adjusted to the then prevailing market rental rate for a comparable leases in the comparable areas of the West San Fernxxxx Xxxley Area. ~~The Extension Term~~ Such option shall ~~commence,~~ be exercised (if at all~~, on April 1, 2018, and end on March 31, 2025~~) by Lessee giving Lessor at least 270 days prior irrevocable written notice. ~~Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1~~ The ~~Net Rent payable for each month during the Extension Term shall be the fair~~ prevailing market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in ~~accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s~~ the following manner: Prevailing market rental rate shall be determined taking into account all relevant factors, including (to the extent relevant) number of months of free rent, if any (which shall be part of the determination of the ~~Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1~~rental rate), Lessee improvement obligations, moving allowances, and leasing commissions and costs. The term "comparable leases" shall not include leases entered into under special circumstances affecting the economics of the tenancies, including following the exercise of options to lease space at other than then current prevailing market rate, the ~~Prevailing Rent Rate~~ lease of awkward or unusually shaped space or space without windows or other usual amenities, leases entered into under conditions where the Lessor was forced to lease the space by external legal, economic, or other pressures not generally applicable to the market, or the sublease or space by a sublessor not primarily in the business of leasing space. Prior to the date which is five (5) months before the expiration of the then current term, and assuming that Lessee has properly exercised its option to renew, Lessor shall ~~be determined~~ give Lessee notice of Lessor's proposed prevailing market rental value for the Premises. Lessee shall give Lessor written notice within thirty (30) days thereafter as ~~follows~~to whether or not Lessee agrees with Lessor's proposed prevailing market rental value. ~~Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant~~ If Lessee disagrees with ~~Landlord’s determination~~ Lessor's proposed prevailing market rental value, the parties shall negotiate in good faith to resolve their differences for a period of thirty (30) days. Upon the ~~Prevailing Rental Rate~~ expiration of such thirty (30) day period, if the parties are not in ~~the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations,~~ agreement as to ~~agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give~~ such fair market rental value by giving written notice to the other of party, such notice containing the name ~~and address~~ of an ~~arbitrator designated~~ appraiser appointed by such initiating party. Within fifteen (15) days thereafter, the party ~~giving~~ receiving such ~~notice. If either party fails to give~~ notice ~~of such designation within 10 business days after the Outside Date, the other party~~ shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing appoint its own appraiser and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as thereof to the ~~determination of the Prevailing Rental Rate~~initiating party. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business second appraiser is not appointed within such fifteen day period, then the appraiser selected by the initiating party shall determine the fair market rental value of the Premises, and such appraisal shall be binding upon the parties. If the second appraiser is timely appointed, then the two ~~arbitrators~~ appraisers shall ~~promptly designate a third arbitrator~~confer and attempt to agree on the prevailing market value. If the two ~~arbitrators fail~~ appraisers are unable to ~~agree upon~~ agree, but the ~~designation of a third arbitrator within 10 business days~~higher appraisal is no more than ten percent (10%) higher than the lower appraisal, then ~~either party may apply to~~ the ~~American Arbitration Association or any successor having jurisdiction for~~ prevailing market rental value shall be the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out average of the two ~~determinations~~ appraisals. If the higher appraisal is more than ten percent (10%) greater than the lower appraisal, the two appraisers shall together select a third appraiser who shall also determine the prevailing market rental value. If three appraisers are ultimately appointed and any two appraisers agree on the prevailing market rental value, the value agreed upon by the two ~~arbitrators originally selected by~~ appraisers shall be the ~~parties that most closely approximates~~ prevailing market rental value. If the ~~third arbitrator’s own determination~~ three appraisers all determine different prevailing market rental values, then the prevailing market rental value shall be the average of the ~~Prevailing Rental Rate, and that choice by the third arbitrator~~ two closest appraisals. All appraisers shall be ~~binding upon Landlord~~ members of the MAI and ~~Tenant. The third arbitrator~~ shall have ~~no right to propose a middle ground or any modification of either of~~ at least ten (10) years' experience appraising similar property in the ~~determinations proposed by the original two arbitrators~~West San Fernxxxx Xxxley Area. Each party shall bear the cost of the ~~arbitrator it selects. The remaining~~ appraiser appointed by such party, and the parties shall share equally in the cost of the ~~arbitration shall be split evenly between~~ third appraiser, if appointed. If the ~~parties (and each~~ two appraisers initially appointed are unable to agree on a third appraiser, then either party shall ~~bear all of its own costs in connection with such arbitration). The determination~~ have the right to apply to the presiding judge of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant Superior Court having jurisdiction over the Premises for the ~~Extension Term~~ appointment of a third appraiser. The rent determined in ~~its then~~accordance to the foregoing shall be subject to adjustments pursuant to the attached Addendum to Standard Lease paragraph 59-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension OptionRent Adjustments - Extended Term.

Appears in 1 contract

Samples: Standard Industrial/Commercial Single Tenant Lease Net (Netcom Systems Inc)

Option to Extend. Tenant shall have ~~one~~ the option to extend the Lease Term ~~of this Lease (the “Extension Option”)~~ for one (1) additional period of 7 five (5) years (commencing upon the ~~“Extension~~ expiration of the initial Lease Term~~”) on the terms and conditions of this Section 3.2~~. ~~The Extension Term~~ Such option shall ~~commence, if at all, on April 1, 2018, and end on March 31, 2025.~~ be exercised only by Tenant ~~may exercise the Extension Option by delivering~~ giving written notice thereof which is received by Landlord not less than nine (~~a “Notice~~ 9) months prior to ~~Extend”) of its exercise~~ the expiration of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension initial Lease Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the ~~essence with respect~~ essence; provided, however, Tenant shall be entitled to ~~Tenant’s~~ exercise the option to extend granted herein, and the Lease Term shall, in fact, be extended by reason of such exercise, only if this Lease is in full force and effect and Tenant is not in default hereunder beyond any applicable notice and cure periods. In the event that the Lease Term is in fact extended pursuant to the foregoing, then any such extension shall be upon all of the same terms, covenants, provisions and conditions as contained in this Lease except the monthly Base Rent during each extension period shall be adjusted to be the Market Rent (as hereinafter defined) for the Premises. As used herein, “Market Rent” means the product obtained by multiplying (i) the monthly rental rate per square foot then established and prevailing in the Building for new leases or lease renewals or, if no such new leases or lease renewals have been entered into within the twelve (12) month period preceding the date for which the determination is being made, then the established and prevailing rental rate per square foot being charged as of such date for comparable space to other tenants in other comparable buildings in the north suburban Chicago metropolitan area, all as determined in good faith by Landlord; or by (3ii) ~~an uncured Event~~ the total rentable square feet of ~~Default exists~~ floor area contained within the Premises. The Market Rent may increase during the extension period depending on then current market escalations, conditions and terms at the time the Market Rent is determined. At least seven (7) months prior to the expiration of the initial Lease Term, Landlord shall notify Tenant ~~delivers~~ of the ~~Notice to Extend. 3.2.4 If~~ Market Rent and Tenant ~~exercises the Extension Option~~may, ~~then,~~ by written notice which is received by Landlord on or before the ~~commencement date~~ tenth (10th) day, time being of the ~~Extension Term~~essence, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s receipt of notice of the Market Rent from Landlord, either (i) withdraw its exercise of the ~~Extension Option.~~option, in which event this Lease shall terminate upon the expiration of the initial Lease Term or (ii) advise Landlord that Tenant desires to determine the Market Rent by appraisal in accordance with the following: Tenant shall, within ten (10) days after the date of Tenant’s notice, select a Broker (as hereinafter

Appears in 1 contract

Samples: Lease (PharMEDium Healthcare Holdings, Inc.)

Option to Extend. (a) Subject to the terms hereof, Landlord hereby grants to Tenant ~~shall have~~ one (1) option (the “Extension Option”) to extend the Term of this Lease with respect to the entire Premises for three (3) years (“Option Term”), on the same terms, covenants and conditions as provided for in this Lease during the initial Lease Term, except that all economic terms such as, without limitation, Monthly Basic Rent, a new Base Year for Operating Expenses, if appropriate, parking charges, etc., shall be established based on the “~~Extension Option”)~~ fair market rental rate” for ~~one additional period of 7 years (~~the ~~“Extension Term”) on~~ Premises for the ~~terms~~ Option Term as defined and ~~conditions~~ determined in accordance with the provisions of this Section ~~3.2.~~ 2.2 and except that the Tenant shall have no further right to extend the Lease Term. (b) The Extension ~~Term shall commence~~Option must be exercised, if at all, ~~on April 1, 2018~~by written notice (“Extension Notice”) delivered by Tenant to Landlord (and actually received by Landlord) no earlier than the date which is twelve (12) months, and ~~end on March 31~~no later than the date which is nine (9) months, ~~2025~~prior to the expiration of the then current Term of this Lease. ~~Tenant may exercise~~ If the Extension Notice is not so given and received, the Extension Option ~~by delivering written notice (~~shall automatically expire. As a ~~“Notice~~ condition to ~~Extend”) of its exercise~~ the extension of the Lease Term pursuant to the Extension Option, any prior Tenant that has not been expressly released from liability under this Lease, and any guarantor of the Tenant’s performance hereunder, must expressly reaffirm in writing the extension of their liability for the Option ~~to Landlord not later than April 1, 2017~~Term. ~~3.2.1~~ (c) The ~~Net Rent payable for each month during the Extension Term shall be the~~ term “fair market rental ~~rate~~ rate” as used herein shall mean the annual amount per rentable square foot, projected during the relevant period, that a willing, comparable, non-equity renewal tenant (excluding sublease, assignment and new tenant transactions) would pay, and a willing, comparable landlord of a comparable quality building located in the ~~“Prevailing Rental Rate”~~vicinity of the Building would accept, at arm’s length (what Landlord is accepting in current transactions for the Project may be considered), for space unencumbered by any other tenant’s expansion rights and comparable in size, quality and floor height as the leased area at issue taking into account the age, quality and layout of the existing improvements in the leased area at issue (with consideration given to the fact that the improvements existing in the Premises are specifically suitable to Tenant) at and taking into account items that professional real estate brokers customarily consider in renewal transactions, including, but not limited to, rental rates, office space availability, tenant size, refurbishment allowances, operating expenses and allowance, parking charges, and any other amounts then being charged by Landlord or the lessors of such similar office buildings but specifically disregarding concessions then being granted by comparable landlords to new tenants in comparable buildings located in the vicinity of the Building. Notwithstanding anything to the contrary contained herein, the Monthly Basic Rent during the Option Term shall in no event be less than the Monthly Basic Rent scheduled to be paid during the month prior to the commencement of the ~~Extension~~ Option Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Office Lease (Orexigen Therapeutics, Inc.)

Option to Extend. Subject to Tenant providing Landlord six (6) months prior written notice and Tenant is not in default of any terms of the Lease, Tenant shall have ~~one option~~ the Option to ~~extend~~ Extend the ~~Term of this~~ Lease (for all space then under lease by Tenant in the ~~“Extension Option”)~~ Building, for one (1) additional ~~period~~ term of ~~7 years~~ five (~~the “Extension Term”~~5) ~~on the terms and conditions of this Section 3.2~~years. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term base rental rate shall be the then current "fair market" rental rates for like space in the Foothill Ranch Office Market Place. If Tenant objects to Landlord's determination of fair market ~~rental rate~~ rental, Tenant shall notify Landlord in writing within ten (~~the “Prevailing Rental Rate”~~10) ~~at the commencement~~ days of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice ~~(the “PRR Notice”) advising Tenant~~ of Landlord~~’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord~~'s determination, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s 's determination of fair market rental. In the event that Landlord and Tenant are unable to agree upon the fair market rental value of the Premises, then the fair market rental value shall be determined by appraisal as set forth below. Until the appraisal procedures are final, Tenant shall pay base rent in the amount of Landlord's determination. After the determination of the ~~Prevailing Rental Rate in the PRR Notice~~appraisers is final, Landlord shall promptly reimburse Tenant for any overpayment by Tenant of base rent owing for prior months, and ~~(ii) proposing a specific alternative Prevailing Rental Rate~~Tenant shall promptly make payment to Landlord for any underpayment of base rent owing for prior months. If Landlord and Tenant ~~fail, despite good-faith negotiations,~~ are unable to agree on upon the ~~Prevailing Rental Rate on or before~~ fair market rental value of the ~~date~~ Premises, then Landlord shall cause an M.A.I. appraiser (the ~~“Outside Date”~~"First Appraiser") ~~that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice~~ to ~~the other of the name and address of an arbitrator designated by the party giving~~ determine such ~~notice~~fair market rental value. If ~~either party fails to give notice of~~ such ~~designation~~ appraisal is deemed unacceptable by Tenant, then Tenant shall so advise Landlord in writing within ~~10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business~~ ten (10) days after receipt of such ~~second notice~~appraisal and Tenant shall engage another M.A.I. appraiser (the "Second Appraiser") to appraise the Premises. The First Appraiser and the Second Appraiser shall together choose a third M.A.I. appraiser (the "Third Appraiser"). If ~~either party fails~~ the appraisal determined by the Third Appraiser is greater than the highest appraisal or lower than the lowest appraisal given by the First Appraiser and the Second Appraiser, then the fair market rental value shall be the amount determined by the appraisal given by the First Appraiser or the Second Appraiser, as applicable, which is closest in amount to ~~give notice of such designation within such second 10 business day period~~the appraisal given by the Third Appraiser. Otherwise, the ~~first arbitrator chosen~~ fair market rental value shall ~~make~~ be the ~~determination~~ average of the ~~Prevailing Rental Rate alone~~amount determined by the three appraisals. ~~If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation~~ All other terms and conditions of the ~~second arbitrator, make their determination~~ initial lease shall remain the same for the extended term of the ~~Prevailing Rental Rate in writing and give notice to each other and to~~ lease. The cost of all appraisals shall be borne by Tenant if the fair market rental value of the Premises determined by the foregoing appraisal process is within five percent (5%) of Landlord's original determination; otherwise the cost of all appraisals shall be borne equally by Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Office Lease (Cardiogenesis Corp /Ca)

Option to Extend. Provided that (i) no Event of Default (as defined in Section 7.1) shall exist at the time such option is exercised or at the commencement of the applicable Extension Term, and (ii) Tenant ~~shall have one option~~ remains in occupancy of the Premises, Tenant may elect to extend the Term of this Lease for two (~~the “Extension Option”~~2) ~~for one~~ additional ~~period~~ periods of 7 five (5) years each (~~the~~ each, an “Extension Term”), by giving Landlord notice of such election no sooner than fifteen (15) on months earlier than and no later than twelve (12) months prior to the ~~terms~~ Expiration Date of the original term, or the first. Extension Term, as the case may be. Such extension shall be upon the terms, covenants, and conditions of contained in this ~~Section 3.2. The~~ Lease except that, during the second Extension Term Tenant shall ~~commence, if at all, on April 1, 2018,~~ have no further right to extend the Lease Term and ~~end on March 31, 2025. Tenant may exercise~~ except that the ~~Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net~~ Base Rent ~~payable~~ for each ~~month during the~~ Extension Term shall be ~~the~~ at fair market rent for comparable space in comparable properties in the Greater Boston area and not less than the then current Base Rent in effect during the last year of the original term, or the first Extension Term, as the case may be. If Landlord and Tenant are unable to agree on the amount of such fair market rent by the date that is thirty (30) days after the date of Tenant’s election notice based on rental ~~rate~~ rates and terms for comparable space in the Greater Boston area, then Landlord shall promptly specify in writing the rent (the ~~“Prevailing~~ ‘Landlord’s Rental Rate”) at which Landlord is willing to lease the ~~commencement of~~ Premises for the Extension ~~Term, for extensions of space of equivalent quality, size, utility,~~ Term and ~~location~~ Tenant shall promptly specify in writing the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice rent (the “~~PRR Notice~~Tenant’s Rental Rate”) ~~advising~~ which Tenant ~~of Landlord’s determination~~ is willing to pay for the Premises for the Extension Term and the amount of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate fair market rent shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate established by appraisal in the ~~PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate~~following manner. If The Landlord and Tenant ~~fail, despite good-faith negotiations,~~ shall so appointed shall determine the fair market rent within thirty days of Tenant’s election notice. If such appraisers are unable to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice amount of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation fair market rent within such ~~second 10 business~~ 30-day period, ~~the first arbitrator chosen~~ they shall ~~make the determination~~ appoint a third appraiser within ten (10) days of the ~~Prevailing Rental Rate alone. If~~ expiration of such period, who shall be instructed to select, as between the rents chosen by the two ~~arbitrators have been designated~~appraisers, ~~both arbitrators shall~~the rent that is closest to the third appraiser’s estimate of Fair Market Rent, ~~within 10 business days following~~ The fair market rent shall be the ~~designation of~~ amount so selected by the ~~second arbitrator, make their determination of~~ third appraiser and shall be conclusive on the ~~Prevailing Rental Rate in writing and give notice to each other and to~~ Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of its appraiser, and the ~~arbitrator it selects. The remaining~~ cost of the ~~arbitration~~ third appraiser shall be split ~~evenly~~ equally between ~~the parties (and each party shall bear all of its own costs in connection with such arbitration).~~ parties, The ~~determination of the Prevailing Rental Rate in accordance with this Section 3.2.2~~ third appraiser’s estimate shall be ~~final~~ based on the data supplied and ~~binding in fixing~~ used by the ~~Prevailing Rental Rate. The arbitrators shall not have~~ original two appraisers and the ~~power to add to, modify, or change any of~~ findings made by the ~~provisions of this Lease. All arbitrators~~ third appraiser shall be ~~real estate brokers with at least 5 years of continuous experience~~ set forth in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenantwriting. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Lease (Mimecast LTD)

Option to Extend. ~~Tenant~~ (i) Lessee shall have ~~one~~ the option to extend the ~~Term~~ term of this Lease ~~(the “Extension Option”)~~ for ~~one additional~~ a period of 7 five (5) years (the “"Extension Term”) "), on the terms and conditions of contained herein, except for Base Rent, which shall be determined as hereinafter provided. Other than as set forth herein, Lessee shall have no further option to extend this ~~Section 3.2~~Lease. The extension option under this Clause (B) may be exercised only by the named Lessee or its Corporate Successor and is not assignable to any other assignee or sublessee of the named Lessee. (ii) Exercise of such extension option shall be by written notice given to Lessor at least one hundred eighty (180) and not more than three hundred sixty (360) days prior to the last day of the original Term. During the Extension Term, Base Rent shall be adjusted to equal the prevailing fair market rental value of the Premises (the "Fair Market Rental Value"), determined as hereinafter provided, provided that in no event shall Base Rent for the Extension Term ~~shall commence, if~~ be less than that in effect at ~~all, on April 1, 2018, and~~ the end ~~on March 31, 2025~~of the initial Term. ~~Tenant~~ Fair Market Rental Value may ~~exercise~~ include step increases in rental. (iii) After the ~~Extension Option by delivering written notice (a “Notice to Extend”) of its~~ exercise of the ~~Extension Option~~ option to ~~Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”)~~ extend by Lessee and at least 120 days prior to the commencement of the ~~Extension Term~~extension term, ~~for extensions~~ Lessor shall notify Lessee of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s Lessor's determination of the ~~Prevailing~~ Fair Market Rental ~~Rate~~Value. ~~Unless Tenant delivers to Landlord, within 30~~ Within fifteen (15) days after ~~receiving~~ the ~~PRR Notice~~date of such notice, ~~a written~~ Lessee shall either: (i) notify Lessor of Lessee's acceptance of ~~Landlord’s~~ Lessor's determination of the ~~Prevailing~~ Fair Market Rental ~~Rate~~Value, in which event Base Rent for the ~~Prevailing Rental Rate~~ extension term shall be as so determined ~~in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s~~ by Lessor; or (ii) notify Lessor of Lessee's rejection of Lessor's determination of the ~~Prevailing~~ Fair Market Rental ~~Rate~~ Value, which notice shall include Lessee's determination of Fair Market Rental Value. If Lessee rejects Lessor's determination, and if the parties cannot agree upon the Fair Market Rental Value within 30 fifteen (15) days after ~~Landlord’s PRR Notice as provided in Section 3.2.1~~Lessee's notice, the ~~Prevailing Rent Rate~~ Fair Market Rental Value shall be determined as ~~follows~~provided below. ~~Tenant~~ In such event, within thirty (30) days after Lessee's timely rejection of Lessor's determination of the Fair Market Rental Value, each party shall designate a representative who is either a licensed MAI appraiser skilled in determining rental rates for office space in the Portland, Oregon metropolitan area, or a real estate broker experienced in leasing office space in the Portland, Oregon metropolitan area. The two (2) representatives so chosen shall select an arbitrator having the above qualifications or, if they cannot agree, the presiding judge of the Circuit Court of Multnomah County, Oregon shall, upon application by either party, select an arbitrator having the above qualifications. At least thirty (30) days prior to the commencement of the extension term, each party's representative shall submit to ~~Landlord, within 30 days after receiving~~ the ~~PRR Notice,~~ arbitrator a ~~notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination~~ written report stating such representative's opinion of the ~~Prevailing~~ Fair Market Rental ~~Rate~~ Value, based on a consideration of rental rates then being charged (under the most recently executed leases) for equivalent office space in the ~~PRR Notice~~Portland, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.Oregon metropolitan area

Appears in 1 contract

Samples: Lease (Webtrends Corp)

Option to Extend. Tenant shall have ~~one~~ the option to extend the initial Term as to the entire Premises for one (1) additional period of ten (10) years (the "Additional Term"), upon the same terms and conditions then in effect with respect to the Premises, except for Annual Fixed Rent (as hereinafter defined), which shall be determined as provided hereinbelow, provided that at the time such option to extend is exercised and at the expiration of the initial Term Tenant shall not be in default under this Lease beyond any applicable notice and cure period. Annual Fixed Rent for the Additional Term payable with respect to the Premises shall be the greater of (i) the prevailing fair market rental rate for the Premises as of the date of commencement of the Additional Term, as determined as hereinafter set forth, or (ii) the Annual Fixed Rent payable by Tenant with respect to the Premises for the last Lease Year during the initial Term. At any time after the date which is thirteen (13) months prior to the Expiration Date and prior to the date which is eleven (11) months prior to the Expiration Date, Tenant may request Landlord to inform Tenant of Landlord's determination of the prevailing fair market rental rate for the Premises which will be in effect for the Additional Term, and in such event Landlord shall within twenty (20) days thereafter notify Tenant as to the prevailing fair market rental rate for the Additional Term as of the commencement of the Additional Term, as determined by Landlord ("Landlord's Rent Notice"). If Tenant elects to exercise the option to extend the initial Term of this Lease for the Additional Term, Tenant shall do so by written notice to Landlord ("Tenant's Exercise") given not later than the date which is ten (10) months prior to the Expiration Date or the date which is mutually agreed upon at such time. If Tenant fails to exercise the extension option within the aforesaid time period, Tenant's right to such extension of the Term of this Lease ~~(the “Extension Option”) for one additional period of 7 years (the “Extension Term”) on the terms and conditions of this Section 3.2~~shall expire. ~~The Extension Term~~ Tenant's Exercise shall ~~commence, if at all, on April 1, 2018, and end on March 31, 2025.~~ contain a statement from Tenant ~~may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise~~ that it either accepts or rejects Landlord's determination of the ~~Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the~~ prevailing fair market rental rate ~~(the “Prevailing Rental Rate”) at the commencement of the Extension Term,~~ for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises ~~at Tenant’s sole expense (~~as set forth in ~~other words, without reimbursement through any allowance or credit) had been made~~Landlord's Rent Notice. ~~Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to~~ If Tenant ~~written notice (the “PRR Notice”) advising Tenant of~~ rejects Landlord’s 's determination of the ~~Prevailing Rental Rate. Unless Tenant delivers to~~ prevailing fair market rental rate for the Premises as set forth in Landlord~~, within 30 days after receiving the PRR~~ 's Rent Notice, ~~a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate~~ then Tenant's Exercise shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of also contain the name ~~and address~~ of ~~an arbitrator designated by the party giving~~ one appraiser. In such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators event Landlord shall, within ~~10 business~~ twenty (20) days ~~following the~~ of Landlord's receipt of Tenant's Exercise, provide Tenant with written notice of a second appraiser. Thereafter, within ten (10) days of Landlord's designation of the second ~~arbitrator~~appraiser, ~~make their~~ Landlord's and Tenant's respective appraisers shall select a third appraiser. Each appraiser shall have had at lease ten (10) years experience in the valuation of commercial real estate and lease transactions in the Metropolitan Boston area. Within thirty (30) days of the selection of the third appraiser as aforesaid, the three appraises (by a majority decision or by an average of the three individual determinations if no majority decision is reached) shall determine the prevailing fair market rental rate for the Premises for the Additional Term. Such determination of the ~~Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after~~ prevailing fair market rental rate for the ~~receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to~~ Premises for the ~~determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate~~ Additional Term shall be ~~final~~ conclusive and ~~binding~~ biding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall ~~execute an amendment to this Lease extending the Term and adjusting the Net Rent to~~ each be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises responsible for the ~~Extension Term in its then-current condition~~costs of their respective appraiser, and Landlord and Tenant shall ~~have no obligation to provide to Tenant any allowances~~ each be responsible fifty percent (~~e.g., moving allowance, construction allowance, and the like~~50%) ~~or other tenant inducements in connection with Tenant’s exercise~~ of the ~~Extension Option~~costs of the third appraiser.

Appears in 1 contract

Samples: Lease (Smtek International Inc)

Option to Extend. Landlord hereby grants to Tenant ~~shall have one~~ the option to extend the ~~Term~~ term of ~~this~~ the Lease for one (1) five (5)-year period (the ~~“Extension Option”~~"EXTENSION OPTION") commencing when the initial lease term expires upon each and all of the following terms and conditions: (a) Tenant shall give to Landlord on a date which is prior to the date that the option period would commence (if exercised) by at least one hundred eighty (180) days and not more than two hundred seventy (270) days, a written notice of the exercise of the option to extend the Lease for ~~one~~ said additional ~~period~~ term, time being of ~~7 years~~ the essence. If said notification of the exercise of said option is not so given and received, this option shall automatically expire. (b) The provisions of section 27 of the ~~“Extension Term”~~Lease apply to this option. (c) on All of the terms and conditions of the Lease except where specifically modified by this ~~Section 3.2. The Extension Term~~ Addendum section shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017apply. ~~3.2.1~~ (d) The ~~Net~~ Base Rent payable ~~for each month~~ during the ~~Extension Term~~ option term shall be the ~~fair market rental rate~~ greater of the (i) Market Rate on the ~~“Prevailing Rental Rate”~~date the option term commences or (ii) at the Base Rent payable immediately prior to the commencement of the ~~Extension Term~~option term. (e) The term "MARKET RATE" shall mean the annual amount per rentable square foot that a willing, comparable renewal tenant would pay and a willing, comparable landlord of a similar building would accept at arm's length for ~~extensions~~ similar space, giving appropriate consideration to the following matters: (i) annual rental rates per rentable square foot; (ii) the type of ~~space of equivalent quality~~escalation clauses (including, ~~size~~but without limitation, ~~utility~~operating expense, real estate taxes, and ~~location in~~ CPI) and the ~~Mendota Heights area~~extent of liability under the escalation clauses (i.e., ~~talking into account~~ whether determined on a "net lease" basis or by increases over a particular base year or base dollar amount); (iii) rent abatement provisions reflecting free rent and/or no rent during the ~~terms of this Lease, the~~ lease term; (iv) length of ~~the Extension Term~~lease term; (v) size and location of premises being leased; and (vi) other generally applicable terms and conditions of tenancy for similar space; provided, ~~and all other relevant factors~~however, ~~but assuming that no improvements~~ Tenant ~~has made~~ shall not be entitled to ~~the Premises at Tenant’s sole expense (in other words, without reimbursement through~~ any ~~allowance~~ tenant improvement or ~~credit) had been made~~refurbishment allowance. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR NoticeThe Market Rate may also designate periodic rental increases, a ~~written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental~~ new Base Year and similar economic adjustments. The Market Rate shall be ~~determined~~ the Market Rate in ~~accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination~~ effect as of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination beginning of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day option period, ~~the first arbitrator chosen shall make~~ even though the determination may be made in advance of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowancedate, and the ~~like) or other tenant inducements~~ parties may use recent trends in ~~connection with Tenant’s exercise~~ rental rates in determining the proper Market Rate as of the ~~Extension Option~~beginning of the option period.

Appears in 1 contract

Samples: Standard Industrial Lease (Jabil Circuit Inc)

Option to Extend. 40.1 Landlord grants to Tenant ~~shall have~~ one (1) option to extend the ~~Term~~ term of this Lease for (5) years under the ~~“Extension Option”) for one additional period of 7 years (the “Extension Term”) on the~~ same terms and conditions existing in the original Lease except as set forth in this Article 40. Basic Annual Rent shall be adjusted on the first day of the extension term to an amount equal to the fair market rental value of the Premises as of the commencement of the extension term, but in no event less than the Basic Annual Rent payable during the last year of the initial term. Tenant shall exercise such right to extend the term of this ~~Section 3.2. The Extension Term~~ Lease by written notice to Landlord no later than eight (8) months prior to the end of the original term. 40.2 If Landlord and Tenant after the use of reasonable, good faith efforts are unable to agree on the fair market rental value of the Premises, Landlord shall ~~commence, if~~ within sixty (60) days after the option is exercised obtain at ~~all, on April 1, 2018,~~ its expense and ~~end on March 31, 2025~~deliver to Tenant an independent appraisal of the fair market rental value of the Premises as of the commencement of the extension term. Tenant may ~~exercise the Extension Option by delivering written notice (a “Notice~~ also elect to ~~Extend”) of~~ obtain at its ~~exercise of the Extension Option~~ expense and deliver to Landlord not later than ~~April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be~~ thirty (30) days after receipt of Landlord's appraisal a second independent appraisal of the fair market rental ~~rate (~~value of the ~~“Prevailing Rental Rate”) at~~ Premises as of the commencement of the ~~Extension Term~~extension term. If Tenant elects not to obtain a second appraisal, Landlord's appraisal shall be conclusive. If Tenant's appraisal is no more than five percent (5%) less than Landlord's appraisal, the fair market rental value of the Premises shall be the arithmetic average of the two appraisals. If Tenant's appraisal is more than five percent (5%) less than Landlord's appraisal, the two appraisers shall appoint a third appraiser to appraise the fair market rental value of the Premises as of the commencement of the extension term, and the fair market rental value of the Premises shall be the arithmetic average of the two appraisals closest in their determination of fair market rental value. Landlord and Tenant shall bear equally the expense of the third appraiser. In no event shall the Basic Annual Rent for ~~extensions~~ the first year of ~~space~~ the extension term be less than that payable during the last year of ~~equivalent~~ the initial term. As used herein, the term "fair market rental value of the Premises" shall be defined to mean the fair market rental value of the Premises as of the commencement of the extension term in its then existing condition "as-is" (without allowance from Landlord for new tenant improvements or refurbishment) but excluding the value of any Tenant Improvements paid for by Tenant as part of the initial construction or installed and paid for by Tenant after the Term Commencement Date, taking into consideration all relevant factors, including length of term, the uses permitted under the Lease, the quality, size, ~~utility~~design, condition, and ~~location in~~ age of the ~~Mendota Heights area, talking into account the terms of this Lease~~Premises, the ~~length~~ absence of a tenant improvement allowance, the location of the ~~Extension Term~~Premises, ~~and all other relevant factors, but assuming that no improvements Tenant has made~~ the monthly base rent for premises comparable to the Premises located in the same general area as the Premises, and the rental adjustments set forth in Section 40.5. 40.3 All appraisers appointed hereunder shall have at ~~Tenant’s sole expense~~ least ten (10) years experience in ~~other words~~the appraisal of commercial/industrial real property in the Santa Clarx xxxa and shall be members of professional organizations such as the American Appraisal Institute with a designation of MAI or equivalent. 40.4 Any increase or decrease in Basic Annual Rent under this Article 40 which is not determined until after the effective date of the increase shall nevertheless be retroactive to the effective date; Tenant shall pay any such retroactive increase with the installment of Rent next due, ~~without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend,~~ and Landlord shall ~~deliver~~ promptly reimburse Tenant an amount equal to ~~Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination~~ any such retroactive decrease. 40.5 Basic Annual Rent as of the ~~Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination~~ commencement of the ~~Prevailing Rental Rate, the Prevailing Rental Rate~~ extension term as determined under this Article 40 (and as increased pursuant to this Section 40.5) shall be ~~determined in accordance with Section 3.2.2 below~~increased on each annual anniversary of the first day of the extension term (each an "Adjustment Date") by three percent (3%). ~~3.2.2 If~~ 40.6 Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the ~~power~~ right to ~~add to~~exercise this option to extend, ~~modify,~~ notwithstanding anything set forth above to the contrary: (a) During the period of time commencing on the date Landlord gives to Tenant a written notice that Tenant is in material default under any monetary or ~~change~~ material non-monetary obligation of this Lease and continuing until the default alleged in said notice is cured; (b) At any time after Landlord has given to Tenant three (3) or more monthly notices of a default in the payment of Basic Annual Rent during the last two years of the ~~provisions~~ initial term, whether or not such defaults are cured; or (c) After the expiration or earlier termination of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. ~~3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following:~~ (1) ~~either this Lease or Tenant’s right to possession~~ Tenant is in default of ~~the Premises is terminated;~~ a monetary obligation of Tenant for a period of thirty (30) days after such obligation becomes due, (2) Tenant fails to ~~timely exercise~~ commence to cure a non-monetary default within thirty (30) days after the ~~Extension Option~~date Landlord gives notice to Tenant of such default, ~~time being of the essence with respect to Tenant’s exercise;~~ or (3) ~~an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term,~~ Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease properly give gives to Tenant ~~the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances~~ three (~~e.g., moving allowance, construction allowance, and the like~~3) or ~~other tenant inducements~~ more notices of a default in ~~connection with Tenant’s exercise~~ the payment of ~~the Extension Option~~Basic Annual Rent, whether or not such defaults are cured.

Appears in 1 contract

Samples: Lease (Globix Corp)

Option to Extend. Subject to the provisions hereinafter set forth, Landlord hereby grants to Tenant ~~shall have~~ one (1) option to extend the term of this Lease (the “Option”) on the same terms, conditions and provisions as contained in this Lease, except as otherwise provided herein, for one (1) period of five (5) Lease Years (the “Option Period”). The Option Period shall commence, only if properly exercised pursuant to subsection (a) below, upon the termination of the original Term of this Lease (the “~~Extension Option~~Option Period Commencement Date”). (a) ~~for one additional period~~ The Option shall be exercisable by written notice from Tenant to Landlord of ~~7 years (the “Extension Term”) on the terms and conditions of this Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may~~ Xxxxxx’s intent to exercise the ~~Extension~~ Option ~~by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord~~ given not later than ~~April 1~~the date which is at least nine (9) months prior to the Option Period Commencement Date and not earlier than eighteen (18) months prior to the Option Period Commencement Date, ~~2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement~~ time being of the ~~Extension Term, for extensions~~ essence. If Tenant fails to timely give written notice of ~~space of equivalent quality, size, utility, and location in~~ its intent to exercise the ~~Mendota Heights area, talking into account the terms of this Lease~~Option, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord Option shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all thereupon expire of its own ~~costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final~~ terms and ~~binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change~~ without any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either further action by Landlord or Tenant. ~~3.2.3 The Extension~~ (b) Basic Rent per square foot of Rentable Area of the Premises payable during the Option Period with respect to all space included in the Premises as of the Option Period Commencement Date shall be equal to the greater of: (i) ninety five percent (95%) of the Prevailing Market Rate (as hereinafter defined) with respect to the Option Period; or (ii) the Basic Rent payable in the last month of the Lease Term. Landlord shall, in response to and ~~all~~ within thirty (30) days of Landlord’s receipt of Tenant’s ~~rights under this Section 3.2 shall automatically terminate immediately upon~~ notice of its intent to exercise the ~~occurrence of any~~ Option, give Tenant written notice of the ~~following: (1) either this Lease or Tenant’s right to possession~~ applicable Prevailing Market Rate, as reasonably determined in good faith by Landlord. In the event the Basic Rent payable in the last month of the ~~Premises~~ Lease Term is ~~terminated;~~ greater than ninety five percent (295%) ~~Tenant fails to timely exercise the Extension Option, time being~~ of the ~~essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at~~ Prevailing Market Rate, as reasonably determined in good faith by Landlord, the ~~time Tenant delivers~~ Basic Rent payable in the ~~Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date~~ last month of the ~~Extension Term, Landlord and Tenant~~ Lease Term shall ~~execute an amendment to this Lease extending the Term and adjusting the Net Rent to~~ be the Basic Rent payable throughout the Option Period, and Section 46 (c) through (e) shall be inapplicable. However, in the event the Basic Rent payable in the last month of the Lease Term is less than ninety five percent (95%) of the Prevailing ~~Rental~~ Market Rate~~. Tenant~~ , as reasonably determined in good faith by Landlord, then ninety five percent (95%) of the Prevailing Market Rate shall ~~have no further extension or renewal option other than the Extension Option except~~ be determined pursuant to ~~an express written agreement by Landlord executed~~ Section 46 (c), (d) and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (~~e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option~~e).

Appears in 1 contract

Samples: Office Lease (Intersearch Group Inc)

Option to Extend. ~~Tenant shall have one~~ Lessor hereby grants Lessee an option to extend the ~~Term~~ term of ~~this~~ the Lease ~~(the “Extension Option”)~~ for one additional period of 7 five years (commencing immediately after the ~~“Extension Term”) on~~ expiration of the term of the Lease, upon the same terms and conditions ~~of this Section 3.2. The Extension Term shall commence~~contained herein, ~~if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise~~ except that the ~~Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of~~ Rent for the ~~Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term~~ Premises shall be equal to the fair market ~~rental rate~~ base rent for the Premises. Lessee must exercise the option granted herein on or before the date that is six (6) months prior to the ~~“Prevailing Rental Rate”) at~~ expiration of the initial term of the Lease. In the event Lessee fails to timely exercise the option granted herein, Lessee shall have no right to extend the term of the Lease. If Lessee properly exercises the option granted herein, references in the Lease to the "term" shall be deemed to mean the option term unless the context clearly provides otherwise. a. If Lessee properly exercises its option to extend the term of the Lease, the Rent during the option term shall be determined in the following manner. The Rent shall be adjusted to an amount equal to the fair market base rent for the Premises as of the commencement of the ~~Extension Term~~option term for a term equal to the option term, as specified by Lessor by notice to Lessee not less than sixty (60) days prior to commencement of the option term, subject to Lessee's right of arbitration as set forth below. If Lessee believes that the fair market base rent specified by Lessor exceeds the actual fair market base rent for ~~extensions~~ the Premises as of ~~space~~ commencement of ~~equivalent quality~~the option term, ~~size, utility, and location in~~ then Lessee shall so notify Lessor within ten (10) business days following receipt of Lessor's notice. If the ~~Mendota Heights area, talking into account~~ parties are unable to agree upon the ~~terms~~ fair market base rent for the Premises within ten (10) days after Lessor's receipt of ~~this Lease~~notice of Lessee's objection, the ~~length~~ amount of base rent as of commencement of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate option term shall be determined as follows~~. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice~~ : (~~the “PRR Objection Notice”):~~ 1) Within twenty (i20) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of ~~such second notice~~Lessor's notice specifying fair market base rent, Lessee, at its sole expense, shall obtain and deliver in writing to Lessor a determination of the fair market base rent for the Premises for a term equal to the option term from a broker ("Lessee's Broker") licensed in the State of Illinois and engaged in the industrial brokerage business in the City of Addison (and surrounding areas) for at least the immediately preceding five (5) years. If ~~either party fails to give notice of~~ Lessor accepts such ~~designation within such second 10 business day period~~determination, the ~~first arbitrator chosen~~ Rent for the option term shall ~~make~~ be adjusted to an amount equal to the amount determined by Lessee's Broker. (2) If Lessor does not accept such determination, within fifteen (15) days after receipt of the determination of Lessee's Broker, Lessor shall designate a broker ("Lessor's Broker") licensed in the ~~Prevailing Rental Rate alone~~State of Illinois and engaged in the industrial brokerage business in the City of Addison (and surrounding areas) for at least the immediately preceding five (5) years. ~~If two arbitrators have been designated~~Lessor's Broker and Lessee's Broker shall name a third broker, ~~both arbitrators shall~~similarly qualified, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business five (5) days after the ~~receipt~~ appointment of ~~notice~~ Lessor's Broker. Each of ~~each other’s determinations to confer with each other and to attempt to reach agreement~~ said three brokers shall determine the fair market base rent for the Premises as of the commencement of the option term for a term equal to the ~~determination~~ option term of the ~~Prevailing Rental Rate~~Lease within fifteen (15) days after the appointment of the third broker. If The Rent payable by Lessee effective as of the ~~two arbitrators agree on~~ commencement of the ~~Prevailing Rental Rate~~option term shall be increased to an amount equal to the arithmetic average of such three determinations; provided, however, that ~~rate~~ if any such broker's determination deviates more than 10% from the median of such determinations, the Rent payable shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply an amount equal to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out average of the two ~~determinations by~~ closest determinations. (3) Lessor shall pay the ~~two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own~~ costs and fees of Lessor's Broker in connection with any determination ~~of the Prevailing Rental Rate~~hereunder, and ~~that choice by~~ Lessee shall pay the ~~third arbitrator shall be binding upon Landlord~~ costs and ~~Tenant. The third arbitrator shall have no right to propose a middle ground or any modification~~ fees of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs Lessee's Broker in connection with such ~~arbitration)~~determination. The ~~determination~~ costs and fees of any third broker shall be paid one- half by Lessor and one-half by Lessee. b. If the amount of the ~~Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall~~ fair market base rent is not ~~have the power to add to, modify, or change any~~ known as of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any commencement of the ~~following: (1) either this Lease or Tenant’s right~~ option term, then Lessee shall continue to ~~possession~~ pay the Rent in effect at the expiration of the ~~Premises is terminated; (2) Tenant fails to timely exercise~~ initial term until the ~~Extension Option, time being~~ amount of the ~~essence with respect~~ fair market base rent is determined. When such determination is made, Lessee shall pay to ~~Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend~~Lessor any deficiency upon demand. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Industrial Building Lease (Simpson Manufacturing Co Inc /Ca/)

Appears in 1 contract

Samples: Office Lease (Paratek Pharmaceuticals, Inc.)

Option to Extend. So long as Tenant is not in material default under the terms of the Lease, Tenant shall have ~~one option~~ the right to extend the ~~Term~~ term of ~~this~~ the Lease for two (2) additional terms of five (5) years each (the “Extension ~~Option~~Terms”). Tenant agrees to notify Landlord in writing of Tenant’s intent to renew not more than twenty-four (24) ~~for one additional period of 7 years~~ and not less than eighteen (18) months prior to the “Lease Termination Date (or if during the first such Extension Term~~”) on~~ , the ~~terms and conditions~~ termination of ~~this Section 3.2~~the then current lease term). The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month rental rate during the Extension ~~Term~~ Terms shall be equal to the ~~fair market rental rate~~ then Fair Market Rental Rate (adjusted for lease concessions) for comparable space located in Lower Xxxxx Xxxx, Seattle, Washington. Within thirty (30) days following Tenant’s notice to Landlord of Tenant’s desire to extend the ~~“Prevailing~~ Lease, Landlord shall notify Tenant of the proposed Extended Term Base Rent, which shall be equal to the then Fair Market Rental ~~Rate”) at~~ Rate of the Premises. Fair Market Rental Rate shall be defined as the annual Base Rent (projected in reference to the date of the commencement of the ~~Extension Term, for extensions~~ payment of annual rental to which it applies) which Tenant would expect to pay and Landlord would expect to receive under leases of space of ~~equivalent quality, size, utility,~~ comparable size and ~~location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made~~ quality to the Premises ~~at Tenant’s sole expense~~ and as provided for in and on terms and conditions comparable to, this Lease covering premises similar to the Premises. Tenant shall have thirty (~~in other words, without reimbursement through any allowance or credit~~30) ~~had been made. Within 30~~ days ~~after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant~~ following receipt of Landlord’s ~~determination~~ notice of the ~~Prevailing~~ proposed Extended Term Base Rent, in which to accept such determination; or to agree with Landlord on a stipulated Fair Market Rental Rate. ~~Unless~~ If Tenant ~~delivers to~~ notifies Landlord, within ~~30 days after receiving~~ the ~~PRR Notice~~aforesaid thirty (30) day period, ~~a written acceptance of Landlord’s determination of~~ that Tenant disputes the Prevailing ~~Rental Rate~~Market Rate quoted by Landlord, the parties shall, during the following thirty (30) days, negotiate in good faith to determine the Extended Term Base Rent. If within said thirty-day period the parties are unable to agree on the Extended Term Base Rent, then within ten (10) days thereafter, each party shall select a qualified appraiser experienced in appraising commercial rental properties in the vicinity of The Premises, who shall submit appraisals for the Premises within thirty (30) days of their appointment. If the difference between the appraisals is five percent (5%) or less, the Prevailing ~~Rental~~ Market Rate shall be determined ~~in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination~~ to be the average of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rateappraisals. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day perioddifference is greater than five percent (5%), then the two ~~arbitrators~~ appraisers shall ~~promptly designate~~ select a third ~~arbitrator. If~~ qualified appraiser who shall submit an appraisal within the ~~two arbitrators fail to agree upon~~ thirty (30) days following the ~~designation~~ submission of ~~a third arbitrator within 10 business days, then either party may apply to~~ the ~~American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator~~first appraisals. The ~~third arbitrator~~ Prevailing Market Rate shall ~~conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose~~ then be the ~~one determination out~~ average of the two ~~determinations~~ (2) closest appraisals. The fees of each appraiser shall be paid by the ~~two arbitrators originally selected~~ party appointing the appraiser and the fees of the third appraiser, if any, shall be shared equally by the ~~parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator~~ parties. The option shall be ~~binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification~~ void if, at the time of ~~either~~ exercise of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs such option, Tenant is not in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises or is ~~terminated; (2)~~ in default under this Lease or if Tenant fails to ~~timely exercise~~ deliver the ~~Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at~~ requisite notice thereof within the time ~~Tenant delivers the Notice to Extend~~period specified above. The option granted herein shall not be severed from this Lease, separately sold, assigned, or transferred. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Office Lease Agreement (F5 Networks Inc)

Option to Extend. Provided no uncured Tenant default exists at the time such option is exercised or as of the date the Extended Term (defined below) is to commence, Tenant shall have ~~one~~ the option to extend the ~~Term~~ term of this Lease ~~(the “Extension Option”)~~ for one (1) additional period of 7 five (5) years (~~the~~ “~~Extension~~ Extended Term”~~) on the terms and conditions of this Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025~~). Tenant may exercise ~~the Extension Option~~ such extension right by ~~delivering~~ providing written notice ~~(a “Notice to Extend”) of its exercise of the Extension Option~~ to Landlord not later than ~~April 1, 2017. 3.2.1 The Net Rent payable for each month during~~ one hundred eighty (180) days prior to the ~~Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement~~ expiration of the ~~Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms~~ initial term of this Lease, . Annual Basic Rent during the ~~length~~ first year of such Extended Term will be at a rate equal to the then prevailing Fair Market Rental Rate (“FMRR”) for buildings along the Xxxxxxx Boulevard corridor. Not later than one hundred twenty (120) days prior to the expiration of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extendinitial term, Landlord ~~shall deliver to Tenant written notice (the “PRR Notice”) advising~~ will notify Tenant of the FMRR. If Tenant disputes Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall FMRR and such dispute cannot be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate resolved on or before ninety (90) days prior to the ~~date (~~expiration of the ~~“Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice~~initial term, Landlord and Tenant ~~each shall give notice~~ will agree upon a mutually acceptable real estate broker familiar with rental rates along the Xxxxxxx Boulevard corridor and having not less than ten (10) years brokerage experience. The determination of such broker, to be received not later than sixty (60) days prior to the ~~other~~ expiration of the ~~name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date~~initial term, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to will be binding on Landlord and Tenant~~. The two arbitrators shall have 10 business days after~~ ; provided, however, that in no event will Annual Basic Rent during the ~~receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination~~ first year of the ~~Prevailing Rental Rate~~Extended Term be less than that in effect during the immediately preceding Lease Year. ~~If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon~~ Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear Tenant will share the cost of the ~~arbitrator it selects~~services of any such broker. ~~The remaining cost~~ Annual Basic Rent for the Extended Term, established as set forth above, will be subject to an annual increase of three percent (3%) during each subsequent Lease Year of the ~~arbitration shall be split evenly between~~ Extended Term. Tenant will remain liable during the ~~parties~~ Extended Term for Tenant’s Percentage of any increases in Direct Expenses over the Direct Expenses Base (~~and each party shall bear all of its own costs in connection with such arbitration~~which will remain unchanged throughout the Extended Term). ~~The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power~~ This Option to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises Extend is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease personal to Tenant ~~the Premises for the Extension Term in its then-current condition,~~ and ~~Landlord shall have no obligation~~ is not transferable to ~~provide to Tenant~~ any ~~allowances (e.g., moving allowance, construction allowance, and the like)~~ subtenant or ~~other tenant inducements in connection with Tenant’s exercise of the Extension Option~~assignee.

Appears in 1 contract

Samples: Office Lease (Solar Power, Inc.)

Option to Extend. Tenant shall have ~~one~~ the option to ~~extend~~ renew the Term of this Lease for one (1) additional ten (10) year term (the ~~“Extension Option”) for one additional period of 7 years (the “Extension~~ "Extended Term~~”) on the terms and conditions of this Section 3.2~~"). The ~~Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise~~ Basic Rent for the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Extended Term shall be Fair Market Rent including annual increases provided in Section 3B of this Lease as reflected in the ~~fair market rental rate (~~determination of Fair Market Rent as provided herein. Fair Market Rent shall be defined to be rent for first class well maintained mid-rise office projects located proximate to the ~~“Prevailing Rental Rate”)~~ Palo Alto, Menlo Park, Redwood City, Redwood Shores, San Mateo, Fostxx Xxxy marketplace and that have on-building freeway visible signage, including the most recent comparable leases Landlord has consummated with other tenants at the ~~commencement~~ Complex. Should Landlord and Tenant be unable to agree upon the Fair Market Rent within twenty-one (21) days of Landlord's timely receipt of Tenant's written notice as required herein, then Tenant may elect to either (i) revoke its written notice and have the lease expire at the end of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice Term as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and this Lease or (ii) ~~proposing a specific alternative Prevailing Rental Rate~~notify Landlord within five (5) days that it elects to set the Fair Market Rent by appraisal. If Tenant's failure to so timely notify Landlord as provided above shall be deemed to be Tenant's election to have the Lease expire at the end of the Term. Following such election to set the Fair Market Rent by appraisal, each party, within fifteen (15) days at its cost and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give by giving notice to the other of party, shall appoint a licensed real estate appraiser (MAI) with at least five (5) years' full-time commercial appraisal experience in the ~~name~~ area in which the Premises are located to determine the Fair Market Rental as specified above. If a party does not appoint an appraiser within fifteen (15) days, the single appraiser appointed shall be the sole appraiser and ~~address of an arbitrator designated~~ shall set the Fair Market Rent for the extended Term. If the two appraisers are appointed by the ~~party giving such notice~~parties as stated in this paragraph, they shall meet promptly and attempt to set the Fair Market Rent for the extended term. If ~~either party fails~~ they are unable to ~~give notice of such designation~~ agree within ~~10 business~~ twenty (20) days after the ~~Outside Date~~second appraiser has been appointed, they shall select a third appraiser meeting the ~~other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator~~ qualifications stated in this paragraph within ~~10 business~~ ten (10) days after ~~receipt~~ the last day the two appraisers are given to set the Fair Market Rent. The cost of ~~such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen~~ said third appraiser shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to be borne equally by Landlord and Tenant. ~~The two arbitrators shall have 10 business~~ Within ten (10) days after the ~~receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination~~ selection of the ~~Prevailing Rental Rate~~third appraiser, a majority of the appraisers shall set the Fair Market Rent for the Extended Term. If ~~the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end~~ a majority of the ~~10-business day period~~appraisers are unable to set the Fair Market Rent within the stipulated period of time, then the two ~~arbitrators~~ (2) closest appraisals shall ~~promptly designate a third arbitrator. If~~ be added together and their total divided by two (2); and shall be the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction initial Basic Rent for the ~~designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose~~ Premises for the ~~one determination out~~ first twelve (12) months of the ~~two determinations~~ Extended Term subject to CPI adjustments as set forth in the Lease. In no event shall Fair Market Rent be less than the Basic Rent paid in the last month of the primary Term of the Lease as increased by the ~~two arbitrators originally selected~~ CPI. Said Basic Rent as set by the ~~parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator~~ appraisers shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (hereto and ~~each party~~ the Lease shall ~~bear all of its own costs~~ remain in ~~connection with such arbitration). The determination of~~ effect through the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Extended Term~~, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate~~. Tenant shall have no ~~further extension or renewal option~~ other ~~than the Extension Option except pursuant~~ right to ~~an express written agreement by Landlord executed and delivered after~~ extend the Lease ~~Date~~beyond the Extended Term herein granted. Tenant shall thereafter notify Landlord of its desire to exercise such option within a minimum of nine (9) months and a maximum of twelve (12) months prior to the expiration date of the primary lease Term. This option shall ~~lease~~ be void, at Landlord's option, if Tenant has been chronically delinquent as defined in Section 13# of this Lease, or is in default at the time of exercise or at any time subsequent to Tenant giving timely notice up to commencement of the ~~Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide~~ Extended Term. This option is personal to Tenant ~~any allowances (e.g.~~and may not be assigned or transferred without Landlord's expressed written consent which may be withheld in Landlord's sole and absolute discretion. TIME IS OF THE ESSENCE. Except for adjustments to the Basic Rent, ~~moving allowance, construction allowance,~~ the Extended Term shall be on the same terms and conditions as the ~~like) or other tenant inducements in connection with Tenant’s exercise~~ primary Term of the ~~Extension Option~~Lease. OPT shall continue to be chargeable to Tenant during the Extended Term.

Appears in 1 contract

Samples: Office Lease (Niku Corp)

Option to Extend. Tenant shall have ~~one option~~ the right to extend the term of its occupancy of the Premises for one (1) period of three (3) years, commencing on October 1, 2008 and ending on September 30, 2011 (the “ Extension Term”). The Extension Term shall be upon the same terms, covenants and conditions as in the Lease, except that Base Rent shall be the Fair Market Base Rent for the Premises as of the date that the Extension Term commences. “Fair Market Base Rent” shall mean that net annual base rent per rentable square foot of the Premises as of the commencement of the Extension Term that a willing credit-worthy tenant would pay and a willing landlord would accept in an arms length bona fide negotiation for space comparable to the Premises in condition, quality, size and location in the Minneapolis, Minnesota area, with neither party under a compulsion for the appropriate term. Tenant shall notify Landlord of its desire to extend the term for the Extension Term by notifying Landlord in writing no later than April 1, 2008. Upon such notification, Landlord and Tenant shall make a good faith effort to agree upon the Fair Market Base Rent of the Premises for the Extension Term. In the event that Landlord and Tenant fail to agree upon the Fair Market Base Rent by June 1, 2008, then Tenant’s extension right shall automatically terminate and the Lease shall terminate effective as of September 30, 2008. This extension right is personal to Tenant and may not be assigned. Upon an assignment of the Lease by Tenant, this Section is null and void. Tenant currently leases 32,735 square feet from Landlord, pursuant to a lease dated September 3, 2002 (as amended, the “Northgate Lease”), of the office/warehouse property known as “Northgate I,” located at 0000 Xxxxxxxx Xxxxx, Xxxxx Xxxxx, XX (the “Northgate Property”). If Tenant extends the term of the Lease pursuant to this Section 1.9, Tenant may then elect to terminate this Lease (the “~~Extension~~ Early Termination Option”) ~~for one additional period~~ as of ~~7 years~~ January 15, 2010 (the “~~Extension Term~~Early Termination Date”~~) on the terms and conditions of this Section 3.2. The Extension Term shall commence~~), ~~if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option~~ by ~~delivering~~ giving Landlord prior written notice on or before November 3, 2009 (a “~~Notice~~ Tenant’s Early Termination Notice”). Tenant’s right to ~~Extend”~~exercise this Early Termination Option is conditioned on: (a) Tenant having first irrevocably extended and expanded the Northgate Lease, such that Tenant is the sole tenant of ~~its~~ the Northgate Property effective on or before the Early Termination Date; (b) Tenant having paid Landlord all amounts due and owing under the Lease; (c) there being no uncured Event of Default at the time of exercise of the ~~Extension~~ Early Termination Option or on the Early Termination Date; and (d) Tenant not having vacated the Premises, or having subleased or assigned its interest under the Lease, as of the date of exercise of the Early Termination Option or on the Early Termination Date. If this Early Termination Option is timely exercised, Tenant will deliver possession of the Premises to Landlord ~~not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during~~ on the Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location Early Termination Date in ~~the Mendota Heights area, talking into account~~ accordance with the terms of this ~~Lease, the length of the Extension Term,~~ Lease and all other ~~relevant factors~~terms will apply as if this Lease had expired according to its terms, ~~but assuming that no improvements Tenant has made~~ including Tenant’s Share of Expenses attributable to periods prior to the ~~Premises~~ Early Termination Date at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice such time as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Ratesuch obligation is determined. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely ~~exercise the Extension Option~~give notice, ~~time being of the essence with respect~~ Tenant will be deemed to ~~Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice~~ have waived its right to ~~Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment~~ terminate pursuant to this ~~Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate~~Section. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease This limited termination right is personal to Tenant (and not to any assignee or subtenant) and may not be assigned, it being agreed such right is not appurtenant to the Premises ~~for the Extension Term in its then-current condition~~or this Lease; upon an assignment or sublease by Tenant, this Section is null and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Optionvoid.

Appears in 1 contract

Samples: Standard Commercial Lease (Vascular Solutions Inc)

Option to Extend. Provided Tenant is not then in default, nor has ever been in material default of this Lease, and is then occupying the Premises, Tenant shall have ~~one~~ the option to extend ~~the Term of~~ this Lease for an additional sixty (60) months at the ~~“Extension Option”~~then market rate for office space in the Building. Such option to extend shall be exercisable by Tenant providing no less than nine (9) ~~for one additional period~~ months written notice to Landlord of ~~7 years (the “Extension Term”) on~~ its desire to extend this Lease. Landlord and Tenant shall agree to execute a lease amendment evidencing the terms and conditions of this Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not such extension no later than ~~April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate~~ six (~~the “Prevailing Rental Rate”~~6) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made months prior to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions Expiration Date of this Lease. ~~All arbitrators~~ If such Lease extension is not executed by Tenant and Landlord by the date that is six (6) months prior to the Expiration Date, this option to extend shall be ~~real estate brokers~~ null and void. EXHIBIT G LEASE GUARANTY The undersigned Guarantor, in consideration of Ten Dollars ($10.00) and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, and of the leasing by MASSACHUSETTS MUTUAL LEFE INSURANCE COMTANY, a Massachusetts corporation, as Landlord, to MEGO MORTGAGE CORPORATION, a Delaware corporation, as Tenant, of certain premises located at 1000 Xxxxxxxx, Xxxxxx 000 xxx 000, Xxxxxxx, Xxxxxxx, xxrsuant to and as defined in a lease entitled Office Lease between them dated on or about this date (herein as amended or modified called the "Lease"), does hereby unconditionally guarantee the payment of all rent and other charges and the performance by Tenant of all of its obligations under the Lease. And the Guarantor further covenants and agrees with ~~at least 5 years~~ Landlord, as follows: (a) That if an Event of ~~continuous experience~~ Default, as defined in said Lease, shall have occurred and be continuing, the Guarantor will, on demand, well and truly pay to Landlord any and all payments that have or will become due to Landlord under the Lease, and will perform or cause to be performed all of the covenants in the ~~business~~ Lease to be performed by Tenant and, in addition, will pay all damages that may arise in consequence of ~~acting as real estate agents~~ such event of default and all costs and attorneys' fees that may be incurred by Landlord in enforcing Tenant's covenants and agreements set forth in the Lease or ~~brokers~~ in enforcing the covenants and agreements of the Guarantor herein. (b) That, at Landlord's option, the Guarantor may be brought into any action or proceeding commenced by Landlord against Tenant in connection with and based upon the Lease or any provision thereof, or Landlord may proceed separately against Guarantor, and recovery may be had against Guarantor in any such action or proceeding or in any independent action or proceeding against Guarantor, without any requirement that Landlord, its successors or assigns, first assert, prosecute or exhaust any remedy or claim against Tenant, its successors and/or assigns. (c) That in the event of any bankruptcy, reorganization, winding-up or similar proceedings with respect to ~~comparable commercial office buildings~~ Tenant, no discharge, modification or limitation of Tenant's liability under the Lease which may now or hereafter he imposed by any federal, state or other law or regulation applicable to such proceedings shall discharge, limit or modify the obligation of Guarantor hereunder, which obligation is co-extensive with Tenant's liability as set forth in the ~~southeastern Twin Cities market~~Lease without regard to any such discharge, ~~exclusive~~ limitation or modification. (d) That this Guaranty shall remain in full force and effect as to any renewal, extension, modification or amendment of the Lease and shall guarantee performance and payment under the Lease by any ~~broker from any brokerage firm currently representing~~ assignee of the interest of the Tenant under the Lease. (e) That Landlord's interest under this Guaranty may be assigned by it by way of security or ~~who had previously represented within~~ otherwise without the ~~preceding 2-year period~~consent of the undersigned. (f) ~~either~~ Guarantor shall be entitled to receive notices of events of default under the Lease and notices or demands given by Landlord or to Tenant. ~~3.2.3~~ (g) Landlord may, from time to time, without notice to or consent of the undersigned, (i) retain or obtain the primary or secondary liability of any party or parties, in addition to the undersigned, with respect to any of the obligations guaranteed hereby, (ii) extend or renew for any period (whether or not longer than the original period) or alter any of the obligations guaranteed hereby, (iii) release or compromise any liability of the Tenant or any liability of any other party or parties primarily or secondarily liable on any of the obligations guaranteed hereby, and (iv) release, compromise or subordinate its title or security interest, if any, in all or any property now or hereafter securing any of the obligations guaranteed hereby. (h) The ~~Extension Option and~~ undersigned waives: (i) notice of the existence or creation of all or any of ~~Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon~~ the ~~occurrence~~ obligations guaranteed hereby, (ii) notice of any alteration, amendment, increase, extension or exchange of any of the ~~following:~~ obligations guaranteed hereby or of any events of a nature set out in the preceding or succeeding paragraphs, (1iii) ~~either this Lease~~ notice of any amendment or ~~Tenant’s~~ modification of the Lease, (iv) all diligence in collection or protection of or realization upon the obligations guaranteed hereby or any thereof, any obligation hereunder, or any security therefor, and (v) the right to ~~possession~~ require Landlord to proceed against Tenant on any of the ~~Premises is terminated; (2)~~ obligations guaranteed hereby. Landlord agrees that it will use reasonably diligent efforts to proceed against Tenant ~~fails~~ prior to ~~timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend~~taking action under this Guaranty. ~~3.2.4 If Tenant exercises~~ (i) No delay or failure on the ~~Extension Option~~part of Landlord in the exercise of any right or remedy shall operate as a waiver thereof, ~~then, on~~ and no single or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement partial exercise by Landlord ~~executed and delivered after~~ of any right or remedy shall preclude other or future exercise thereof or the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of ~~the Extension Option~~any other right or remedy. No action of Landlord permitted hereunder shall impair or affect this Guaranty.

Appears in 1 contract

Samples: Office Lease (Mego Mortgage Corp)

Option to Extend. Provided that (a) this Lease is in full force and effect and there is no ongoing Event of Default at the time of notification or commencement, and (b) I-Therapeutix, Inc. or a Permitted Transferee shall then be in occupancy of at least 70% of the entire Premises under this Lease at the time of commencement, then Tenant shall have one (1) option to extend the Term of this Lease ~~(the “Extension Option”)~~ for ~~one additional~~ a period of ~~7 years~~ five (5) years, for the ~~“Extension Term”)~~ portion of the Premises being leased by Tenant as of the date the extension term is to commence, on the same terms and conditions of this Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location set forth in ~~the Mendota Heights area, talking into account the terms of~~ this Lease, except as modified by the ~~length of~~ terms, covenants and conditions as set forth below: a. If Tenant elects to exercise said option, then Tenant shall provide Landlord with written notice no earlier than the ~~Extension Term, and all other relevant factors~~date which is twelve (12) months prior to the Termination Date, but ~~assuming that~~ no ~~improvements Tenant has made~~ later than the date which is nine (9) months prior to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental RateTermination Date. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely ~~exercise the Extension Option~~provide such written notice, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further or additional right to extend the Term of Lease. b. The Annual Rent and Monthly Installment of Rent in effect as of the day immediately preceding the Termination Date shall be increased to reflect the current fair market rental for comparable space in the Building and in other similar buildings in the same rental market as of the date the extension ~~or renewal option other~~ term is to commence, taking into account the specific provisions of this Lease which will remain constant; provided, however, in no event shall the Annual Rent and Monthly Installment of Rent for the extension term be less than the ~~Extension Option except pursuant to an express written agreement by Landlord executed~~ Annual Rent and ~~delivered after~~ Monthly Installment of Rent in effect as of the ~~Lease~~ day immediately preceding the Termination Date. Landlord shall ~~lease to~~ advise Tenant of the new Annual Rent and Monthly Installment of Rent for the Premises no later than thirty (30) days after receipt of Tenant’s written request therefor. Said request shall be made no earlier than sixty (60) days prior to the first date on which Tenant may exercise its option under this Article 40. Said notification of the new Annual Rent and Monthly Installment of Rent may include a provision for their escalation to provide for a change in fair market rental between the time of notification and the commencement of the extension term. If Tenant and Landlord are unable to agree on a mutually acceptable rental rate not later than sixty (60) days prior to the Termination Date, then Landlord and Tenant shall each appoint a qualified commercial real estate broker with at least ten (10) years experience doing business in the area, in turn those two (2) independent commercial real estate brokers shall appoint a third (3rd) independent commercial real estate broker with at least ten (10) years experience doing business in the area and the majority shall decide upon the fair market rental for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise Premises as of the ~~Extension Option~~Termination Date. Landlord and Tenant shall equally share in the expense of this appraisal except that in the event the Annual Rent and Monthly Installment of Rent is found to be within ten (10%) of the original rate quoted by Landlord, then Tenant shall bear the full cost of all the appraisal process. c. This option is not transferable; the parties hereto acknowledge and agree that they intend that the aforesaid option to extend this Lease shall be “personal” to I-Therapeutix, Inc. and its Permitted Transferees as set forth above and that in no event will any assignee or sublessee other than a Permitted Transferee have any rights to exercise the aforesaid option to extend.

Appears in 1 contract

Samples: Lease (Ocular Therapeutix, Inc)

Option to Extend. Landlord hereby grants to Tenant ~~shall have one~~ the right and option to extend ~~the Term of~~ this Lease for two (~~the “Extension Option”~~2) ~~for one additional period~~ periods of 7 five (5 years ~~(the “Extension Term”)~~ each on the same terms and conditions ~~of this Section 3.2. The Extension Term~~ as contained herein; provided, however, that the rent applicable during each such option period shall ~~commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise~~ be adjusted as of the ~~Extension~~ beginning of each such option period (the "Option Date") as follows: (a) Average Market Rate. At least ninety (90) days prior to the applicable Option Date, Landlord ~~not later than April 1~~and Tenant shall, ~~2017. 3.2.1 The Net Rent payable for each month during~~ in good faith and using reasonable diligence, determine the ~~Extension Term shall be the fair~~ average market ~~rental~~ leasing rate (~~the “Prevailing Rental Rate”) at the commencement of the Extension Term~~including market rent concessions, ~~for extensions of space of equivalent quality~~cash allowances, ~~size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term~~tenant improvement allowances, and all other ~~relevant factors, but assuming that no improvements Tenant has made~~ concession being offered to tenants) per rentable square foot of the Leased Premises (the "Average Market Rate") then existing for potential tenants for like office space of buildings of similar quality to the ~~Premises at Tenant’s sole expense (~~Building in ~~other words~~Salt Lake City, ~~without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice~~ Utah (the ~~“PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate~~"Comparable Buildings"). Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Landlord and Tenant shall ~~submit~~ take into consideration location of each such building and the market appeal of each such building in determining which buildings then existing are of similar quality to ~~Landlord, within 30 days after receiving~~ the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental RateBuilding. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the ~~designation of~~ Average Market Rate at least ninety (90) days prior to the Option Date, then Landlord and Tenant shall attempt to agree, in good faith, upon a single appraiser not later than seventy-five (75) days prior to the Option Date. If Landlord and Tenant are unable to agree upon a single appraiser within such time period, then Landlord and Tenant shall each appoint one appraiser not later than sixty-five (65) days prior to the Option Date. Within ten (10) days thereafter, the two appointed appraisers shall appoint a third ~~arbitrator~~ appraiser. If either Landlord or Tenant shall fail to appoint its appraiser within ~~10 business days~~the prescribed time period, the single appraiser appointed shall determine the Average Market Rate for the Lease Premises. If both parties shall fail to appoint appraisers within the prescribed time periods, then the first appraiser thereafter selected by either party ~~may apply to~~ shall determine the ~~American Arbitration Association or any successor having jurisdiction~~ Average Market Rate for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitratorsLeased Premises. Each party shall bear the cost of its own appraiser and the ~~arbitrator it selects. The remaining cost~~ parties shall share equally the costs of the ~~arbitration~~ single or the third appraiser if applicable. Each appraiser selected pursuant hereto shall have at least five (5) years experience in appraising commercial real property comparable to the Building in Salt Lake County, Utah. Unless a single appraiser is chosen, the Average Market Rate for the Leased Premises shall be ~~split evenly~~ the arithmetic average of the two (2) of the three (3) appraisals which are closest in amount, and the third appraisal shall be disregarded, Landlord ad Tenant shall instruct the appraiser(s) to complete their determination of Average Market Rate not later than thirty (30) days prior to the Option Date. If the Average Market Rate is not determined prior to the Option Date, then Tenant shall continue to pay to Landlord the rent applicable to the Leased Premises immediately prior to such additional term until the Average Market Rate is determined. When the Average Market Rate of the Leased Premises is determined, Landlord shall deliver notice thereof to Tenant and Tenant shall pay to Landlord within ten (10) days affix receipt of such notice the difference between the ~~parties~~ rent actually paid by Tenant to Landlord and the new rental determined hereunder. Notwithstanding the foregoing, in the event that the Average Market Rate is less than eighty percent (~~and each party~~ 80%) of the rent applicable to the Leased Premises immediately prior to the Option Date, Landlord shall ~~bear all~~ have the right to terminate this Lease by written notice to Tenant within five (5) days of ~~its own costs in connection with such arbitration). The~~ the determination of the ~~Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing~~ Average Market Rate, such termination to become effective six (6) months following the ~~Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any~~ date of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect such notice to Tenant~~’s exercise; or~~ . During the six (36) ~~an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option~~month additional period, ~~then, on or before the commencement date of the Extension Term, Landlord and~~ Tenant shall ~~execute an amendment~~ continue to ~~this Lease extending~~ pay Landlord the ~~Term and adjusting~~ rent applicable to the ~~Net Rent~~ Leased Premises immediately prior to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Optionsuch additional term.

Appears in 1 contract

Samples: Lease Agreement (Simmons Media Group Inc)

Option to Extend. Provided Tenant ~~shall have~~ is not in default under any provision of the Lease, Landlord hereby grants to Tenant two one ~~option~~ year options to extend the ~~Term~~ term of this Lease (for an additional term when the ~~“Extension Option”) for one additional period of 7 years (the “Extension Term”)~~ existing term expires, on the terms and conditions of set forth in this ~~Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025~~paragraph. Tenant may exercise ~~the Extension Option~~ this option by ~~delivering~~ giving Landlord written notice ~~(a “Notice to Extend”)~~ of its ~~exercise~~ intention not less than sixty (60) days prior to the expiration of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions existing term of this Lease. ~~All arbitrators shall be real estate brokers with at least 5 years of continuous experience in~~ If this Option is exercised, the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of Base Monthly Rent for the Premises ~~is terminated;~~ shall equal the then current fair market monthly rent (~~2) Tenant fails to timely exercise~~ “Fair Market Rent”), which shall not be less than $19,860.00 per month for the ~~Extension Option, time being~~ Premises as of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the ~~Extension Term~~applicable extended term. If the parties cannot agree on the amount of the “Fair Market Rent” and the annual adjustment to such Fair Market Rent within sixty (60) days prior to the commencement of such extended term, then the Fair Market Rent and the annual adjustment thereto shall be determined by an appraisal. All other terms and conditions contained in the Lease and this Addendum, as the same may be amended from time to time by the parties in accordance with the provisions of the Lease, shall remain in full force and effect and shall apply during the Option term. If the fair market rental value for the Premises needs to be determined by appraisal, Landlord and Tenant shall ~~execute an amendment~~ either agree to ~~this Lease extending~~ select one real estate appraiser or three real estate appraisers. Any real estate appraiser selected shall be a member of the ~~Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant~~ American Institute of Real Estate Appraisers, shall have ~~no further extension or renewal option other than~~ at least five (5) years experience appraising commercial space located in the ~~Extension Option except pursuant to an express written agreement by Landlord executed~~ vicinity of the Premises, and ~~delivered after~~ shall act in accordance with the ~~Lease Date~~rules of the American Institute of Real Estate Appraisers. ~~Landlord~~ The Fair Market Rent shall ~~lease to Tenant~~ be based on rental of space of the same age, construction, size and location as the Premises ~~for~~ with the ~~Extension Term in its then~~improvements installed therein. If only one appraiser is selected, then each party shall pay one-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise half of the ~~Extension Option~~fees and expenses of that appraiser. If proceeding with three appraisers, each party shall select one appraiser, who in turn shall select the third appraiser. If three appraisers are selected, each party shall bear the fees and expenses of the appraiser it selects and one-half of the fees and expenses of the third appraiser.

Appears in 1 contract

Samples: Industrial Space Lease (Adeza Biomedical Corp)

Option to Extend. Subsection G of Lease Exhibit E to the original Lease is deleted in its entirety and replaced with the following. Tenant shall have ~~one option~~ the right, to be exercised as hereinafter provided, to extend the ~~Term~~ term of this Lease for two (~~the~~ 2) periods of five (5) years each (each such period, a “~~Extension Option”) for one additional period of 7 years (the “~~Next Extension Term”) ), on the following terms and conditions and subject to the limitations hereinafter set forth. Each Next Extension Term shall be upon the same terms, covenants and conditions as in this Lease, except that Base Rent shall be the greater of ~~this Section 3.2. The~~ (A) the annual Base Rent in effect immediately prior to the Next Extension Term; and (B) the Fair Market Base Rent for such space on the date such Next Extension Term shall commence~~, if at all, on April 1, 2018, and end on March 31, 2025~~. ~~Tenant may exercise the Extension Option by delivering written notice (a~~ “~~Notice to Extend”) of its exercise~~ Fair Market Base Rent” shall mean that net annual base rent per rentable square foot of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at Premises as of the commencement of the Next Extension ~~Term~~Term that a willing credit-worthy tenant would pay and a willing landlord would accept in an arms length bona fide negotiation for space comparable to the Premises in condition, ~~for extensions of space of equivalent~~ quality, ~~size, utility,~~ size and location in the ~~Mendota Heights~~ Maple Grove, Minnesota area, ~~talking into account~~ with neither party under a compulsion for the ~~terms~~ appropriate term. Tenant shall notify Landlord of ~~this Lease,~~ its desire to extend the ~~length~~ term for the Next Extension Term by notifying Landlord in writing (“Extension Notification”) at least nine (9) months prior to commencement of the Next Extension Term. Upon Landlord’s receipt of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection NoticeNotification, Landlord and Tenant ~~each~~ shall ~~give notice~~ make a good faith effort to agree upon the ~~other~~ Fair Market Base Rent of the ~~name and address of an arbitrator designated by~~ Premises for the ~~party giving such notice~~Next Extension Term. ~~If either party fails to give notice of such designation within 10 business days after~~ In the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to event that Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators Tenant fail to agree upon the ~~designation~~ Fair Market Base Rent within forty-five (45) days of ~~a third arbitrator within 10 business days~~Landlord’s receipt of the Extension Notification, then ~~either party may apply~~ Tenant’s extension right shall automatically terminate. Tenant’s option to ~~the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations~~ extend as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator set forth in this Section shall be ~~binding~~ contingent upon ~~Landlord~~ this Lease being in full force and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (effect and ~~each party shall bear all of its own costs~~ Tenant not being in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience default in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence performance of any of the ~~following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option~~terms, ~~time being of the essence with~~ covenants and conditions herein contained in respect to ~~Tenant’s exercise; or (3) an uncured Event~~ a matter as to which notice of ~~Default exists at~~ default has been given hereunder which has not been remedied within the time ~~Tenant delivers the Notice to Extend~~limited in this Lease. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Lease (Vascular Solutions Inc)

Option to Extend. Whether Tenant has or has not leased the ---------------- Borregas Premises as of February 15, 1995, and provided that Tenant is not in default of any terms of this Lease, Tenant (but not a sublessee or assignee of Tenant unless a successor corporation as described in Section 28 of the Lease) shall have ~~one~~ the option to ~~extend~~ lease the ~~Term~~ Building and Property for a term of ~~this Lease~~ six and one half (~~the “Extension Option”~~6 1/2) ~~for one additional period of 7~~ years (the ~~“Extension~~ "Option Term~~”) on~~ "). The Option Term shall commence as soon as the Borregas Premises are vacated by Cermetek and are prepared for occupancy by Tenant. The option shall be exercised by giving Landlord written notice of Tenant's irrevocable exercise of the Option Term not later than May 15, 1994 nor sooner than February 15, 1994 ("Tenant's Notice"). All terms and conditions of this Lease shall apply to the Option Term except that the initial monthly rent payable pursuant to Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term 5 hereof shall be the ~~fair market rental rate~~ Fair Market Rent as hereinafter defined or Twenty-One Thousand Eight Hundred Sixty-Two Dollars and 00/100 ($21,862) whichever is greater. For all purposes under the ~~“Prevailing Rental Rate”) at~~ Lease during the ~~commencement~~ Option Term, the Premises shall consist of the ~~Extension Term, for extensions of space of equivalent quality, size, utility, and location~~ entire "Property," as defined in the ~~Mendota Heights area, talking into account~~ Lease,and only those portions of the ~~terms of this~~ "Common Area," as defined in the Lease, which are outside the ~~length~~ Building shall be deemed to be Common Area during the Option Term. All areas of the ~~Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to~~ Building defined as part of the Common Area in the Lease shall be part of the Premises ~~at Tenant’s sole expense (~~and Tenant shall be obligated to maintain such Premises in ~~other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (~~the ~~“PRR Notice”) advising Tenant of Landlord’s determination~~ manner set forth in Section 19 of the ~~Prevailing Rental Rate~~Lease. ~~Unless Tenant delivers~~ Fair Market Rent is to ~~Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall~~ be determined in accordance with ~~Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination~~ this paragraph 4. Fair Market Rent shall be the fair rental value of the ~~Prevailing Rental Rate within 30 days after Landlord’s PRR~~ Building as compared to the fair rental value being obtained under new leases at the time Landlord receives Tenant's Notice ~~as provided~~ on comparable buildings for leases with a term of six years or more and shall include periodic increases in ~~Section 3.2.1~~rent based either on an established schedule, increases in the ~~Prevailing~~ consumer price index or periodic reviews to market, whichever measure is then the custom between Landlords and Tenants in the Santa Xxxxx Valley. The Fair Market Rent ~~Rate~~ and method of determining the periodic increases shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination by agreement of ~~the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If~~ Landlord and Tenant ~~fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date~~ within thirty (~~the “Outside Date”~~30) ~~that is 30~~ days ~~after~~ of receipt by Landlord ~~receives the PRR Objection~~ of Tenant's Notice, ~~Landlord and Tenant each shall give notice to~~ or in the ~~other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice~~ absence of such ~~designation~~ agreement, by a real estate appraiser with at least five years full time appraisal experience in the area where the Building is located who shall be selected by Landlord with reasonable approval of Tenant within ~~10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business~~ forty-five (45) days after receipt by Landlord of ~~such second~~ Tenant's notice. ~~If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen~~ Said appraiser shall make ~~the~~ a determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator which shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and on each party ~~shall bear all of its own costs in connection with~~ as soon as reasonably possible after such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenantappraiser's selection. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Asset Purchase Agreement (Corsair Communications Inc)

Option to Extend. Tenant shall have ~~one~~ an option to extend this Lease for an additional term (hereinafter referred to as “First Extended Term”) of five (5) years commencing immediately upon the ~~Term~~ expiration of the initial term of this Lease (and terminating at the ~~“Extension Option”) for one additional period~~ end of ~~7 years (~~the ~~“Extension Term”) on~~ 59th calendar month after the ~~terms and conditions~~ month in which the First Extended Term begins, provided that Tenant proceeds strictly in accordance with the provisions of this Section ~~3.2~~XLVIII. During the month of June, 2017, Tenant shall advise Landlord in writing that Tenant wishes to extend the term of this Lease for the First Extended Term. If at the time Landlord receives Tenant’s Extension Notice this Lease is in full force and effect without default on the part of the Tenant beyond any notice and applicable cure period, then, during the month of July, 2017, Landlord shall notify Tenant in writing of the Rent pursuant to Section IV of the Lease which shall be due for the First Extended Term. The ~~Extension Term~~ Rent specified by Landlord shall ~~commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise~~ be that which the ~~Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to~~ Landlord ~~not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall~~ projects will be the fair market ~~rental rate (the “Prevailing Rental Rate”) at~~ rent as of the commencement of the ~~Extension~~ First Extended Term, but in no event less than Eleven and Fifteen one-hundredths Dollars ($11.15) per rentable square foot. Within three (3) weeks after Landlord has given Tenant notice of the Rent pursuant to Section IV of this Lease for ~~extensions~~ the First Extended Term in accordance with the terms hereof, Tenant shall notify Landlord whether or not it agrees to pay such rent. If Tenant shall agree in writing to pay such rent, then this Lease shall be extended for the First Extended Term without the execution of ~~space of equivalent quality, size, utility~~any additional documents, and ~~location~~ each and every term and condition of this Lease shall apply during the First Extended Term except only that the rent specified in Section IV of this Lease during the ~~Mendota Heights area~~First Extended Term shall be that agreed upon by Landlord and Tenant, ~~talking into account~~ and the ~~terms~~ phrase “term of this Lease” shall be construed to mean the First Extended Term of this Lease. If Tenant shall not agree in writing to pay such rent, this Lease shall terminate as provided in Section III of this Lease and Tenant shall vacate the premises on or before such date in accordance with the provisions of this Lease, ~~the length of the Extension Term, and all other relevant factors, but assuming that no improvements~~ unless Tenant ~~has made to the Premises at Tenant’s sole expense~~ shall have advised Landlord in writing within three (~~in other words, without reimbursement through any allowance or credit~~3) ~~had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant~~ weeks of Landlord’s notice that Tenant exercises its right to submit the determination of rent for the ~~Prevailing Rental Rate~~First Extended Term to the arbitration process described hereinafter. ~~Unless Tenant delivers to Landlord, within 30~~ Within the first thirty (30) days after ~~receiving~~ Tenant’s election to submit the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit issue to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Noticearbitration, Landlord and Tenant shall each ~~shall give notice~~ select an independent real estate broker, who must have at least ten years experience in the 000 Xxxxx Xxxxxxxxxx Xxxxxx to ~~the other~~ render a written opinion of the ~~name~~ rent under Section IV which shall be due during the First Extended Term, which written opinions shall set forth the fair market rent for comparable premises in the 000 Xxxxx Xxxxxxxxxx Xxxxxx (taking into consideration relevant concessions and ~~address of an arbitrator designated by~~ costs provided for and incident to comparable transactions) and shall be rendered within the ~~party giving such notice~~next thirty (30) day period. If ~~either party fails to give notice of such designation~~ the rental rates set forth in the two opinions are within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice ten percent (10%) of each other~~’s determinations to confer with each other and to attempt to reach agreement as to~~ , the ~~determination~~ average of the ~~Prevailing Rental Rate. If~~ two amounts shall be the rent for the First Extended Term; if the rental rates set forth in the two ~~arbitrators agree on~~ opinions are not within ten percent (10%) of each other, the ~~Prevailing Rental Rate~~two independent real estate brokers shall select a third real estate broker, with the same experience qualification described herein who within the next thirty (30) days shall select which of the two initial amounts shall constitute the fair market rent for the First Extended Term. Whether the rental rate is that determined by the average of the two opinions, or by the third real estate broker, that ~~rate~~ determination shall be ~~final~~ conclusive and binding upon Landlord and Tenant, and the lease shall be extended for the First Extended Term without the execution of any additional documents, provided that in no event however shall the rent under Section IV during the First Extended Term be less than Eleven and Fifteen one-hundredths Dollars ($11.15) per rentable square foot. If ~~the two arbitrators~~ Tenant shall fail to ~~agree on the Prevailing Rental Rate by the end of the 10-business day period~~give Landlord written notice in June, ~~then the two arbitrators~~ 2017 as hereinbefore specified, Tenant shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to ~~propose a middle ground~~ extend this Lease for the First Extended Term, and this Lease shall terminate as provided in Section III of this Lease and Tenant shall vacate the premises on or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with before such ~~arbitration). The determination of the Prevailing Rental Rate~~ date in accordance with ~~this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of~~ the provisions of this Lease. ~~All arbitrators~~ Tenant shall ~~be real estate brokers with at least 5 years of continuous experience in the business of acting~~ have an option to extend this Lease for an additional term (hereinafter referred to as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period“Second Extended Term”) ~~either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate~~ commencing immediately upon the ~~occurrence of any~~ expiration of the ~~following: (1) either~~ First Extended Term hereof and continuing for a period of 59 months, provided that Tenant proceeds strictly in accordance with the provisions of this Section XLVIII. During the month of June 2022, Tenant shall advise Landlord in writing that Tenant wishes to extend the term of this Lease or (hereinafter referred to as “Tenant’s ~~right to possession~~ Second Extension Notice”). If at the time Landlord receives Tenant’s Second Extension Notice this Lease is in full force and effect without default on the part of the ~~Premises is terminated; (2)~~ Tenant ~~fails to timely exercise~~ beyond any notice and applicable cure period, then, during the ~~Extension Option~~month of July, ~~time being~~ 2022, Landlord shall notify Tenant in writing of the ~~essence with respect~~ Rent pursuant to ~~Tenant’s exercise; or~~ Section IV of the Lease which shall be due for the Second Extended Term. The Rent specified by Landlord shall be that which the Landlord projects will the fair market rent as of the commencement of the Second Extended Term, but in no event less than the Rent due pursuant to Section IV of this Lease during the last year of the First Extended Term of this Lease per rentable square foot. Within three (3) ~~an uncured Event~~ weeks after Landlord has given Tenant notice of ~~Default exists at~~ the ~~time~~ Rent pursuant to Section IV of this Lease for the Second Extended Term, Tenant ~~delivers the Notice~~ shall notify Landlord whether or not it agrees to ~~Extend. 3.2.4~~ pay such rent. If Tenant ~~exercises~~ shall agree in writing to pay such rent, then this Lease shall be extended for the ~~Extension Option~~Second Extended Term without the execution of any additional documents, ~~then~~and each and every term and condition of this Lease shall apply during the Second Extended Term except only that the rent specified in Section IV of this Lease during the Second Extended Term shall be that agreed upon by Landlord and Tenant, and the phrase “term of this Lease” shall be construed to mean the Second Extended Term of this Lease. If Tenant shall not agree in writing to pay such rent, this Lease shall terminate on termination date of First Extended Term and Tenant shall vacate the premises on or before such date in accordance with the ~~commencement date~~ provisions of this Lease, unless Tenant shall have advised Landlord in writing within three (3) weeks of Landlord’s notice that Tenant exercises its right to submit the ~~Extension Term~~determination of rent for the Second Extended Term to the arbitration process described hereinafter. Within the first thirty (30) days after Tenant’s election to submit the issue to arbitration, Landlord and Tenant shall ~~execute~~ each select an ~~amendment~~ independent real estate broker, who must have at least ten years experience in the 000 Xxxxx Xxxxxxxxxx Xxxxxx to ~~this Lease extending~~ render a written opinion of the ~~Term~~ rent under Section IV which shall be due during the Second Extended Term, which written opinions shall set forth the fair market rent for comparable premises in the 000 Xxxxx Xxxxxxxxxx Xxxxxx (taking into consideration relevant concessions and ~~adjusting~~ costs provided for and incident to comparable transactions) and shall be rendered within the ~~Net Rent to~~ next thirty (30) day period. If the rental rates set forth in the two opinions are within ten percent (10%) of each other, the average of the two amounts shall be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises rent for the ~~Extension Term~~ Second Extended Term; if the rental rates set forth in ~~its then-current condition~~the two opinions are not within ten percent (10%) of each other, the two independent real estate professionals shall select a third real estate broker, with the same experience qualification described herein who within the next thirty (30) days shall select which of the two initial amounts shall constitute the fair market rent for the Second Extended Term. Whether the rental rate is that determined by the average of the two opinions, or by the third real estate broker, that determination shall be conclusive and binding upon Landlord ~~shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance~~and Tenant, and the ~~like) or other tenant inducements~~ lease shall be extended for the Second Extended Term without the execution of any additional documents, provided that in ~~connection with Tenant’s exercise~~ no event shall the rent under Section IV during the Second Extended Term be less than the per rentable square foot rent during the last year of the ~~Extension Option~~First Extended Term. If Tenant shall fail to give Landlord written notice in June, 2022 as hereinbefore specified, Tenant shall no right to extend this Lease for the Second Extended Term, and this Lease shall terminate on the termination date of the First Extended Term and Tenant shall vacate the premises on or before such date in accordance with the provisions of this Lease.

Appears in 1 contract

Samples: Lease Agreement (Ade Corp)

Option to Extend. So long as the Tenant ~~shall have one~~ is Alliance Data L.P.. or a Permitted Transferee, and the Tenant is not then in default, after notice of default has been provided and time to remedy such default has passed, at the notice date or commencement date of the extension of any covenants, conditions and agreements herein reserved and contained and on the part of the Tenant to be paid and performed, the Landlord will, upon the Tenant’s request in writing, given at least 6 months and not more than 12 months prior to the expiration of the original Term, grant to the Tenant an option to extend ~~the Term of~~ this ~~Lease (the “Extension Option”) for one additional period of 7 years (the “Extension Term”)~~ Lease, on the same terms and ~~conditions of this Section 3.2. The Extension Term~~ conditions, for a further 5 years save and except that there shall ~~commence, if~~ be no further rights to extend and save and except that Basic Rent during such extension period shall be mutually agree upon between the parties at ~~all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise~~ least 4 months prior to the ~~Extension Option by delivering written notice (a “Notice to Extend”) of its exercise~~ expiry of the ~~Extension Option~~ original Term. In the event that the parties are unable to ~~Landlord not later than April 1, 2017. 3.2.1 The Net~~ agree on the Basic Rent payable ~~for each month~~ by the Tenant during such extension at least 4 months prior to the ~~Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement~~ expiration of the ~~Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms~~ original Term of this Lease, then it shall be determined at least 30 days prior to the ~~length~~ expiration of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice original Term by 3 accredited real estate brokers (the “~~PRR Notice~~Three Experts”), which experts shall be familiar with rental rates for premises of similar use in the area of the Leased Premises, one of whom shall be appointed by the Landlord (the “Landlord’s Expert”) ~~advising Tenant of~~ and all costs associated with the Landlord’s Expert shall be the sole responsibility of the Landlord, and one expert shall be appointed by the Tenant (the “Tenant’s Expert”) and all costs associated with the Tenant’s Expert shall be the sole responsibility of the Tenant. The appointment of the third expert (the “Third Expert”) shall be agreed upon by the Landlord’s Expert and the Tenant’s Expert, both acting reasonably, and 50% of costs attributable to the Third Expert shall be borne by the Landlord and the remaining 50% of costs attributable to the Third Expert shall be borne by the Tenant. Together the Three Experts, acting reasonably, shall make the final determination of the ~~Prevailing Rental Rate. Unless~~ Basic Rent payable by the Tenant ~~delivers~~ during such extension and, should the Three Experts be unable to ~~Landlord~~agree among themselves on the determination, ~~within 30 days after receiving~~ the ~~PRR Notice, a written acceptance of Landlord’s determination~~ opinion of the ~~Prevailing Rental Rate~~majority, ~~the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination~~ being 2 of the ~~Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1~~Three Experts, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding ~~upon~~ on the Landlord and ~~Tenant. If~~ the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Lease Agreement (Alliance Data Systems Corp)

Option to Extend. Provided Tenant is not in Default of any term or condition of the Lease as of the New Termination Date, Tenant shall have ~~one~~ the option to ~~extend~~ renew the ~~Term~~ term of ~~this~~ the Lease as to the entire Premises (~~the “Extension Option”~~as herein expanded) for one (1) additional ~~period of 7 years~~ five (~~the~~ 5) year term (“~~Extension~~ Renewal Term”) ), on the same terms and conditions of ~~this Section 3.2~~the Lease, except that the Base Rent shall be adjusted to an amount equal to the then prevailing market rental rate for comparable leases for similar projects in Oakland’s Lake Xxxxxxx sub-market (but not less than the Base Rent in effect immediately prior to the commencement of the Renewal Term). ~~The Extension Term~~ Such option shall ~~commence,~~ be exercised (if at all) by Tenant giving irrevocable written notice to Landlord at least fifteen (15) months prior to the expiration of the Extended Term. The option shall be personal to the currently named Tenant. The prevailing market rental rate shall be determined in the following manner: Prevailing market rental rate shall be determined taking into account all relevant factors, ~~on April 1~~including (to the extent relevant) number of months of free rent, ~~2018~~if any (which shall be part of the determination of the rental rate), tenant improvement obligations, moving allowances, and ~~end on March 31~~leasing commissions and costs. The term “comparable leases” shall not include leases entered into under special circumstances affecting the economics of the tenancies, ~~2025~~including following the exercise of options to lease space at other than then current prevailing market rate, the lease of awkward or unusually shaped space or space without windows or other usual amenities, leases entered into under conditions where the landlord was forced to lease the space by external legal, economic, or other pressures not generally applicable to the market, or the sublease of space by a sublandlord not primarily in the business of leasing space similar to the Premises. Prior to the date which is twelve (12) months before the expiration of the Extended Term, and assuming that Tenant has properly exercised its option to renew, Landlord shall give Tenant notice of Landlord's proposed prevailing market rental value for the Premises. Tenant ~~may exercise the Extension Option by delivering~~ shall give Landlord written notice within thirty (30) days thereafter as to whether or not Tenant agrees with Landlord's proposed prevailing market rental value. If Tenant disagrees with Landlord's proposed prevailing market rental value, the parties shall negotiate in good faith to resolve their differences for a ~~“Notice~~ period of thirty (30) days. Upon the expiration of such thirty day period, if the parties are not in agreement as to ~~Extend”) of its exercise of the Extension Option~~ such fair market rental value, then either party may initiate appraisal to ~~Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be~~ determine the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant value by giving written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of party, such notice containing the name ~~and address~~ of an ~~arbitrator designated~~ independent real estate broker or a person with an MAI designation with at least ten (10) years of experience in leasing commercial office space in the Oakland Lake Xxxxxxx submarket area (a “Qualified Appraiser”) appointed by such initiating party. Within fifteen (15) days thereafter, the party ~~giving~~ receiving such ~~notice. If either party fails to give~~ notice ~~of such designation within 10 business days after the Outside Date, the other party~~ shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing appoint its own Qualified Appraiser and give written notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as thereof to the ~~determination of the Prevailing Rental Rate~~initiating party. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business second Qualified Appraiser is not appointed within such fifteen day period, then the Qualified Appraiser selected by the initiating party shall determine the fair market rental value of the Premises, and such appraisal shall be binding upon the parties. If the second Qualified Appraiser is timely appointed, then the two ~~arbitrators~~ Qualified Appraisers shall ~~promptly designate a third arbitrator~~confer and attempt to agree on the prevailing market rental value. If the two ~~arbitrators fail~~ Qualified Appraisers are unable to ~~agree upon~~ agree, but the ~~designation~~ higher appraisal is no more than five percent (5%) higher than the lower appraisal, then the prevailing market rental value shall be the average of ~~a third arbitrator~~ the two appraisals. If the higher appraisal is more than five percent (5%) greater than the lower appraisal, the two Qualified Appraisers shall together, within 10 ten (10) business days, ~~then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The~~ select a third ~~arbitrator~~ Qualified Appraiser who shall ~~conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the~~ select one ~~determination out~~ of the ~~two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate~~Qualified Appraisers determined prevailing market rental value, and that ~~choice by the third arbitrator~~ determination shall be ~~binding upon Landlord~~ the prevailing market rental value. All appraisers shall be members of the MAI and ~~Tenant. The third arbitrator~~ shall have ~~no right to propose a middle ground or any modification of either of~~ at least ten (10) years' experience appraising similar property in the ~~determinations proposed by the original two arbitrators~~Oakland Lake Xxxxxxx sub-market area. Each party shall bear the cost of the ~~arbitrator it selects. The remaining~~ appraiser appointed by such party, and the parties shall share equally in the cost of the ~~arbitration shall be split evenly between~~ third appraiser, if appointed. If the ~~parties (and each~~ two appraisers initially appointed are unable to agree on a third appraiser, then either party shall ~~bear all of its own costs in connection with such arbitration). The determination~~ have the right to apply to the presiding judge of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant Superior Court having jurisdiction over the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise appointment of ~~the Extension Option~~a third appraiser.

Appears in 1 contract

Samples: Lease (Pandora Media, Inc.)

Option to Extend. Subject to satisfaction of the conditions precedent set forth below, Tenant shall have ~~one option~~ two options to extend the Term ~~of this Lease~~ (~~the~~ each, an “Extension Option”) for ~~one additional period of 7 years~~ sixty (~~the~~ 60) full calendar months (“Extension Term”) each time, on the following terms and conditions: 26.1 Tenant’s Extension Option shall be subject to satisfaction of each of the following conditions precedent, which are solely for the benefit of, and may be waived unilaterally by, Landlord: (a) The Extension Option shall be exercised by written notice delivered by Tenant to Landlord not later than eight (8) months prior to the end of the Term or the prior Extension Term, as applicable; and (b) The Lease shall be in effect and Tenant shall not be in Default of any material provision thereof both on the day such written notice is delivered to Landlord and on the last day of the Term. 26.2 In the event the Term shall be extended following exercise by Tenant of the Extension Option, then all of the terms, covenants and conditions of this ~~Section 3.2. The~~ Lease shall remain in full force and effect during the Extension Term, except that the initial monthly Base Rent (including subsequent annual increases in Base Rent) during the Extension Term shall ~~commence~~be adjusted to the then effective market rate for new leases to tenants having a credit history and net worth similar to that of Tenant at the time of exercising such option for comparable space in the Carlsbad market, ~~if at all~~taking into account all relevant factors for such comparable space (“Fair Market Rental Value”), ~~on April 1~~provided, ~~2018~~however, ~~and end on March 31, 2025.~~ that in no event shall the Base Rent payable for any Lease Year be less than the Base Rent payable for the immediately preceding Lease Year. 26.3 Landlord shall notify Tenant ~~may~~ in writing regarding the determination made pursuant to Section 26.2 within ten (10) Business Days after Landlord’s receipt of Tenant’s election to exercise the Extension ~~Option by delivering~~ Option. In the event Tenant rejects Landlord’s determination, Tenant shall give Landlord written notice of such rejection (a “~~Notice to Extend~~Rejection Notice”) within ten (10) Business Days after receipt of the determination. Tenant’s failure to timely deliver the Rejection Notice shall be deemed Tenant’s approval of the Landlord-determined Fair Market Rental Value. The Rejection Notice shall state whether Tenant shall rescind its exercise of the Extension Option or if Tenant seeks to ~~Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement~~ have a third-party evaluation of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been madeFair Market Value. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant ~~does not accept Landlord’s determination of~~ timely delivers the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Rejection Notice, and ~~(ii) proposing a specific alternative Prevailing Rental Rate~~such Rejection Notice states that the Tenant is rescinding the Extension Option, the Extension Option shall become null and void. If ~~Landlord~~ Tenant timely delivers the Rejection Notice, and such Rejection Notice states that Tenant ~~fail~~seeks to have a third-party evaluation of the Fair Market Value, ~~despite good-faith negotiations, to agree on~~ then the ~~Prevailing Rental Rate on or before the date~~ following terms and conditions shall apply: (~~the “Outside Date”~~a) ~~that is 30~~ Within fifteen (15) days after ~~Landlord receives~~ Tenant’s delivery of the ~~PRR Objection~~ Rejection Notice, ~~Landlord~~ each party, at its own cost and ~~Tenant each shall give~~ by giving written notice to the other party, shall appoint a MAI real estate appraiser, with at least ten (10) years’ full-time commercial appraisal experience in the area where the Premises are located, to appraise and determine the Fair Market Rental Value. If, in the time provided, only one (1) party shall give written notice of appointment of an appraiser, then the single appraiser appointed shall determine the Fair Market Rental Value. If two (2) appraisers are appointed by the parties, then the two (2) appraisers shall each independently, and without consultation, prepare an appraisal of the ~~name~~ Fair Market Rental Value within thirty (30) days after their appointment. Each appraiser shall seal its respective appraisal after completion. After both appraisals are completed, the resulting appraisals of the Fair Market Rental Value shall be opened and ~~address of an arbitrator designated by the party giving such notice~~compared. If ~~either party fails to give notice~~ the values of ~~such designation~~ the appraisals differ by no more than ten percent (10%) of the value of the higher appraisal, then the Fair Market Rental Value shall be the average of the two (2) appraisals. (b) If the values of the appraisals differ by more than ten percent (10%) of the value of the higher appraisal, then within ~~10 business~~ ten (10) days after the ~~Outside Date~~date the appraisals are compared, the ~~other party~~ two (2) appraisers selected by the parties shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rateappoint a third similarly qualified appraiser. If the two ~~arbitrators agree on the Prevailing Rental Rate~~(2) appraisers fail to so select a third appraiser, ~~that rate~~ then a third similarly qualified appraiser shall be ~~final and binding upon~~ appointed at the request of either Landlord ~~and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate~~ or Tenant by the ~~end~~ then Presiding Judge of the ~~10-business day period,~~ Superior Court of the State of California for the County of San Diego. The two (2) appraisers shall each then ~~the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply~~ submit his or her independent appraisal in simple letter form to the ~~American Arbitration Association~~ third appraiser stating his or ~~any successor having jurisdiction for~~ her determination of the ~~designation~~ Fair Market Rental Value (which determination may not be changed from that which was set forth in such appraiser’s sealed appraisal). The sole responsibility of ~~such arbitrator~~the third appraiser shall be to determine which of the determinations made by the first two (2) appraisers is most accurate. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator appraiser shall have no right to propose a middle ground or any modification of either of the determinations ~~proposed~~ made by the ~~original~~ first two ~~arbitrators~~(2) appraisers. The third appraiser’s choice shall be submitted to Landlord and Tenant within fifteen (15) days after the third appraiser has received the written determination from each of the first two (2) appraisers. The Fair Market Rental Value shall be determined by the selection made by the third appraiser from the determinations submitted by the first two (2) appraisers. (c) Each party shall ~~bear~~ pay the fees and expenses of its own appraiser, and fifty percent (50%) of the fees and expenses of, and the cost of appointing, the ~~arbitrator it selects.~~ third appraiser. (d) The ~~remaining cost of~~ appraisers shall use their best efforts to fairly and reasonably appraise and determine the ~~arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing~~ Fair Market Rental ~~Rate~~ Value in accordance with ~~this Section 3.2.2 shall be final and binding in fixing~~ the ~~Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions~~ terms of this Lease~~. All arbitrators~~ , and shall ~~be real estate brokers with at least 5 years of continuous experience in the business of acting~~ not act as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) advocates for either Landlord or Tenant. ~~3.2.3~~ (e) The appraisers shall have no power to modify the provisions of this Lease, and their sole function shall be to determine the Fair Market Rental Value in accordance with the definition thereof set forth in Section 26.2 and the provisions of this Section 26.3. If (a) Landlord or an affiliate of Landlord is the owner of those premises subleased by Tenant from Existing Tenant and located at 0000 Xx Xxxxxx Xxxx, Xxxxxxxx, Xxxxxxxxxx (the “Adjacent Premises,” which are currently owned by Landlord and leased to Existing Tenant pursuant to that certain lease dated August 9, 2004, which is herein referred to as the “Existing Adjacent Lease”), and (b) Tenant occupies all or substantially all of the Adjacent Premises on that date of the exercise of the Adjacent Building Extension Option (as defined below), and ~~all of Tenant’s rights~~ (c) Tenant is not in Default under this ~~Section 3.2 shall automatically terminate immediately upon the occurrence of any~~ Lease on that date of the ~~following: (1) either this Lease or Tenant’s right to possession~~ exercise of the ~~Premises is terminated; (2) Tenant fails to timely exercise the~~ Adjacent Building Extension Option, ~~time being~~ and (d) the Existing Adjacent Lease has not been terminated by Landlord prior to the date of the ~~essence with respect to Tenant’s exercise; or (3) an uncured Event~~ exercise of ~~Default exists at~~ the ~~time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the~~ Adjacent Building Extension Option, ~~then, on or before the commencement date~~ then Tenant shall be entitled to extend its occupancy of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Adjacent Premises ~~for the Extension Term~~ in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection accordance with ~~Tenant’s exercise~~ Section 5 of Exhibit E of the Existing Adjacent Lease (the “Adjacent Building Extension Option”).

Appears in 1 contract

Samples: Standard Industrial Lease (Alphatec Holdings, Inc.)

Option to Extend. ~~Tenant shall have~~ Subtenant has one option to extend the Sublease Term ~~of this Lease~~ from the day immediately following the initial Sublease Expiration Date until May 31, 2030 (~~the~~ “~~Extension Option”) for one additional period of 7 years (the “Extension~~ Option Term”) on upon the same terms and conditions ~~of this Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise~~ hereof except that the ~~Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net~~ Monthly Base Rent ~~payable for each month during the Extension Term~~ shall be the fair market ~~rental rate (the “Prevailing Rental Rate”) at~~ rent as of the commencement of the ~~Extension~~ Option Term. Sublandlord and Subtenant shall negotiate in good faith to determine the fair market rent for the Option Term for a period of thirty (30) days after the date on which Sublandlord receives Subtenant’s notice to exercise the option, which notice must be given at least nine (9) months but no more than twelve (12) months prior to the Sublease Expiration Date. The term “fair market rent” herein shall mean a rate comprised of (i) the prevailing base rental rate per rentable square foot for ~~extensions~~ comparable Class A laboratory space (“Comparable Space”) (taking into consideration quality of ~~space of equivalent quality~~improvements, age, size, ~~utility~~location and level and quality of services provided and which space has reached economic stabilization and is not, for any other reason, offering below market rents) in South San Francisco, CA (“Pertinent Market”) and ~~location~~ (ii) any escalation of such base rental rate for Comparable Space prevailing in the ~~Mendota Heights area, talking~~ Pertinent Market. Determination of the fair market rent shall take into account ~~the terms of this Lease, the length of the Extension Term, and~~ all ~~other~~ relevant factors, ~~but assuming that no improvements Tenant has made to~~ including the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination size and financial condition of the ~~Prevailing Rental Rate~~tenants or subtenants and the size and location of space and commencement date and term of lease or sublease in Comparable Space in the Pertinent Market. ~~Unless Tenant delivers~~ If Sublandlord and Subtenant are unable to ~~Landlord~~agree upon the fair market rent for the Option Term within said 30-day period, ~~within 30 days after receiving~~ then the ~~PRR Notice, a written acceptance of Landlord’s determination of~~ fair market rent for the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate Sublease Premises shall be determined as follows~~. Tenant shall submit to Landlord, within 30~~ : Within twenty (20) days ~~after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination~~ of the ~~Prevailing Rental Rate~~ expiration of such thirty (30) day period, Sublandlord and Subtenant shall each hire and appoint a commercial real estate broker licensed in California specializing in the ~~PRR Notice~~field of leasing in comparable buildings in South San Francisco, California, having no fewer than five (5) years’ experience in such field, and recognized as ethical and reputable within the field (~~ii) proposing a specific alternative Prevailing Rental Rate~~each, an “Appraiser”). If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each Each party shall ~~give~~ designate its Appraiser by written notice to the other ~~of the name and address of an arbitrator designated by the party giving such notice~~party. If either party ~~fails~~ shall fail to ~~give notice of~~ appoint its Appraiser within the period specified above (such ~~designation within 10 business days after~~ party referred to hereinafter as the ~~Outside Date~~“failing party”), the other party ~~shall provide an additional~~ may serve notice ~~to such~~ on the failing party requiring the failing party to appoint its Appraiser within twenty (20) days of the giving of such ~~party’s~~ notice and if the failing party shall not respond by appointment of ~~an arbitrator~~ its Appraiser within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10said 20-~~business~~ day period, then the ~~two arbitrators~~ Appraiser appointed by the other party shall ~~promptly designate~~ be the sole Appraiser whose determination of the fair market rent shall be binding and conclusive upon Subtenant and Sublandlord. Following appointment of the Appraisers, the Appraisers will each submit their estimated fair market rent (a ~~third arbitrator~~“Fair Market Determination”) to the other. If ~~the two arbitrators fail~~ Appraisers are unable to agree ~~upon~~ within twenty (20) days of the ~~designation~~ exchange of ~~a third arbitrator within 10 business days~~fair market rent estimates, then ~~either party may apply to~~ the ~~American Arbitration Association~~ Appraisers will, within ten (10) business days after such 20-day period, elect an independent third Appraiser (the “Neutral Appraiser”) meeting the qualifications stated above and each of Sublandlord’s and Subtenant’s Appraiser will present the Neutral Appraiser with his or ~~any successor having jurisdiction for the designation of such arbitrator~~her Fair Market Determination. The ~~third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and~~ Neutral Appraiser shall, within 30 10 days after ~~his or her designation~~appointment, ~~choose the one determination out~~ then select which of the two ~~determinations~~ Fair Market Determinations previously submitted by the initial two ~~arbitrators originally selected by~~ Appraisers is closest to the ~~parties that most closely approximates~~ fair market rent and shall not have the ~~third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no~~ right to propose a ~~middle ground~~ different fair market rent. The Neutral Appraiser must be a person who has not acted in any capacity for either Sublandlord or ~~any modification of either of~~ Subtenant in the ~~determinations proposed by the original two arbitrators~~immediately prior five (5) years, or their affiliates. Each party shall bear the cost of its own Appraiser, and the ~~arbitrator it selects~~cost and expenses of the Neutral Appraiser shall be shared equally by Subtenant and Sublandlord. The ~~remaining cost~~ fair market rent of the ~~arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate~~ Sublease Premises determined in accordance with ~~this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of~~ the provisions of this ~~Lease. All arbitrators~~ paragraph shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option binding and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, conclusive on ~~or before the commencement date of the Extension Term, Landlord~~ Subtenant and ~~Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate~~Sublandlord. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Sublease (Corvus Pharmaceuticals, Inc.)

Option to Extend. Provided that Tenant has not been in default under this Lease beyond any applicable notice, grace or cure period(s), Tenant shall have ~~one option~~ the right to extend the ~~Term~~ term of this Lease for one (1) consecutive three (3) year period (the “Extended Term”), by executing and delivering to Landlord the Option Exercise Notice attached hereto as Exhibit B (with all blanks therein fully and accurately completed by Tenant) no earlier than twelve (12) months and no later than Nine (9) months prior to the expiration of the initial Term (the “Extension Option”~~) for one additional period~~ ). Tenant’s possession and use of ~~7 years (~~the ~~“Extension Term”) on~~ Premises during the Extended Term shall be pursuant to all of the terms and conditions of this ~~Section 3.2. The Extension Term~~ Lease, except that (i) Tenant shall ~~commence, if at all, on April 1, 2018,~~ not have any further option to extend this Lease and ~~end on March 31, 2025. Tenant may exercise~~ (ii) the ~~Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net~~ initial Base Monthly Rent ~~payable for each month~~ during the ~~Extension~~ Extended Term shall be ~~the fair market rental rate (~~equal to the “~~Prevailing Rental Rate”) at~~ Fair Market Rent” (as hereafter defined), which initial Base Monthly Rent shall be increased annually on each anniversary of the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice Extended Term (the “~~PRR Notice~~Rent Adjustment Date”) ~~advising Tenant~~ by the fair market rent increases, determined at the time and in the manner that the initial Base Monthly Rent during the Extended Term is determined, but by not less than the increases incorporated into the initial term (the “Rent Adjustment”). “Fair Market Rent” shall mean the amount of ~~Landlord’s determination~~ rent that landlords would charge a tenant for built-out space of equal quality and size in the immediate market area of the ~~Prevailing Rental Rate. Unless Tenant delivers to Landlord~~Premises; provided, ~~within 30 days after receiving~~ however, that in no event may the ~~PRR Notice, a written acceptance of Landlord’s determination~~ Fair Market Rent be less than 103% of the ~~Prevailing Rental Rate,~~ Base Monthly Rent payable in the ~~Prevailing Rental Rate shall be~~ month immediately preceding the Extended Term. If the Extended Term commences before the Fair Market Rent is finally determined ~~in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice~~ as provided in ~~Section 3.2.1~~this Section, then the ~~Prevailing~~ Extended Term shall nonetheless commence and Tenant shall fully and timely perform all obligations under this Lease and pay to Landlord Base Monthly Rent ~~Rate~~ during the Extended Term at 103% of the Base Monthly Rent payable under this Lease in the month immediately preceding the Extended Term until the Fair Market Rent is finally determined as provided hereunder, in which case such determination shall be retroactive to the commencement of the Extended Term and Tenant shall immediately thereupon pay Landlord any unpaid Base Monthly Rent during the Extended Term accruing at a rate equal to the Fair Market Rent. “Fair Market Rent” shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.:

Appears in 1 contract

Samples: Lease (Signing Day Sports, Inc.)

Option to Extend. ~~Tenant~~ 37. Provided that Lessee is not in default under the Lease after applicable notice and cure periods and has faithfully performed its obligations under the Lease within applicable notice and cure periods, Lessee shall have one (1) option to extend the ~~Term~~ term of this Lease (~~the~~ “~~Extension Option~~Option to Extend”) for ~~one additional~~ a period of 7 two (2) years commencing March 1, 2010 (~~the~~ “~~Extension Term~~Option Period”) on all the same terms and conditions of the Lease excepting that there shall be no additional options to extend and excepting the Base Monthly Rent which shall be at the then current fair market rental value for the Premises as improved (“FMV”). However, notwithstanding anything to the contrary in this Lease, in no event shall the Base Monthly Rent for the Option Period be less than that being paid during the month most immediately preceding the Option Period without the consent of Lessor. In establishing FMV for the Premises, the parties shall consider only direct leases for comparable office/R&D space in Santa Clara xxxxrring during the six months most immediately preceding the Lessee’s exercise of this Option to Extend (“Comparable Leases”), taking into consideration the terms and conditions of this ~~Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018~~Lease and Comparable Leases and the condition of, and ~~end on March 31~~state of improvements in, ~~2025~~the Premises and the premises demised under Comparable Leases. ~~Tenant~~ This Option to Extend shall be personal to Lessee and Permitted Transferees and may not be transferred through assignment or sublease without the express written consent of Lessor. Lessee shall exercise ~~the Extension~~ its Option to Extend by ~~delivering~~ giving written notice ~~(a “Notice~~ to ~~Extend”)~~ Lessor of its ~~exercise of the Extension Option~~ intent to ~~Landlord~~ do so not ~~later~~ less than ~~April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate~~ three (~~the “Prevailing Rental Rate”~~3) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made months nor more than six (6) months prior to the ~~Premises at Tenant~~Option Period. Lessor and Lessee shall negotiate FMV within thirty (30) days following Lessee’s ~~sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant~~ written notice (as set forth above. In the ~~“PRR Notice”) advising Tenant of Landlord’s determination of~~ event Lessor and Lessee cannot agree upon FMV within the ~~Prevailing Rental Rate. Unless Tenant delivers to Landlord~~thirty-day period set forth above, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant then each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall ~~provide an additional notice to such party requiring such party’s appointment of an arbitrator~~ within ~~10 business~~ five (5) days, appoint a licensed commercial real estate broker who is active in commercial and industrial leasing in Santa Clara Xxxxty and the two brokers so appointed shall meet within twenty-one (21) days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second ~~arbitrator,~~ broker’s appointment to make ~~their~~ a determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration)FMV. The determination of the ~~Prevailing Rental Rate in accordance with this Section 3.2.2~~ brokers as set forth herein shall be ~~final~~ binding upon Lessor and ~~binding in fixing~~ Lessee. If the ~~Prevailing Rental Rate. The arbitrators~~ two brokers cannot reach agreement within five (5) days of their initial meeting, then the two shall ~~not have~~ immediately thereafter appoint a third broker with the ~~power to add to, modify, or change any~~ same qualifications and within twenty-one (21) days of the ~~provisions~~ third brokers’ appointment, all three brokers shall meet to make a determination of FMV. If agreement cannot be reached, then the two closest opinions of FMV shall be averaged, and the resulting figure shall become the Base Monthly Rent for the Option Period and be binding on Lessor and Lessee. Lessor and Lessee shall pay the fee of their respective broker and shall share the cost of the third broker, if necessary. FURNITURE & EQUIPMENT 38. With the exception of the server racks presently located in the large lab which shall be removed by the current tenant, Lessee shall be permitted to use at no additional charge and without warranty during the term of this Lease, Lessor’s cubicles, furniture, server room racks, phone and security systems (collectively hereinafter “Lessor’s Personal Property”) as set forth in a detailed Asset Inventory incorporated herein as Exhibit “A” to this Lease. ~~All arbitrators~~ The telephone and security systems and data links connected to the cubicles and server room shall be ~~real estate brokers with at least 5 years of continuous experience~~ delivered to Lessee in their current condition and locations in the ~~business~~ Premises as of ~~acting as real estate agents~~ the date hereof. Upon expiration or ~~brokers with respect to comparable commercial office buildings~~ sooner termination of this Lease, Lessee shall surrender the Premises, leaving all of Lessor’s Personal Property in the ~~southeastern Twin Cities market~~same good condition as delivered to Lessee by Lessor, ~~exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant~~ordinary wear and tear excepted. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Lease Agreement (Ambarella Inc)

Option to Extend. 2.7.1 Subject to the terms and conditions set forth below, Tenant shall have ~~one~~ the option to extend the Lease Term as to all, but not less than all, of ~~this Lease (~~the ~~“Extension Option”)~~ then-existing Premises, for one ~~additional~~ (1) extension period of ~~7 years~~ five (~~the “Extension Term”~~5) ~~on the terms and conditions of this Section 3.2~~years. ~~The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may~~ In order to exercise the ~~Extension Option by delivering~~ option to extend, Tenant must satisfy all of the following requirements: (i) Tenant shall have provided Landlord with written notice of Tenant’s intention to exercise the option to extend, which notice must be received by Landlord no earlier than twelve (~~a “Notice to Extend”~~12) ~~of its exercise of the Extension Option to Landlord~~ months and not later than ~~April 1~~six (6) months before the expiration of the initial Lease Term; (ii) as of the date that Tenant notifies Landlord of Tenant’s intention to exercise the option and as of the expiration of the initial Lease Term, ~~2017~~there shall be no Event of Default by Tenant under this Lease; and (iii) at no time prior to the expiration of the initial Lease Term shall there have been any assignment or subletting of more than twenty-five percent (25%) of the rentable square footage of the Premises, except a Permitted Transfer under Section 4.16.7. ~~3.2.1~~ 2.7.2 In the event the initial Lease Term is extended as provided in this paragraph, Tenant shall, upon request of Landlord, evidence any such extension through the execution of a lease amendment to be provided by Landlord. The ~~Net~~ extension shall be on the same terms, covenants and conditions as set forth in this Lease; provided that, the monthly Base Rent ~~payable for each month~~ during the ~~Extension Term~~ extension period shall be ninety-five percent (95%) of the fair market rental rate. Fair market rental rate (~~the~~ “~~Prevailing~~ Fair Market Rental Rate”) shall mean the rental rate then in effect for comparable Class “A” office properties in the Kirkland/I-405 Corridor office market, of comparable size, quality and location, at the commencement of the ~~Extension Term~~extension period, ~~for extensions~~ giving appropriate consideration to annual rental rates per rentable square foot, the type of ~~space~~ escalation clauses (including, without limitation, operating expenses, real estate taxes), the extent of ~~equivalent quality~~liability under the escalation clauses (e.g. whether determined on a “net lease” basis or by increase over a particular base year or base dollar amount), ~~size~~abatement provisions reflecting free rent and/or no rent during a certain period, ~~utility~~brokerage commissions, if any, length of lease term, size and location of premises being leased, building standard work letter and/or tenant improvement allowances, if any, and ~~location~~ any other tenant concessions then being offered in the ~~Mendota Heights area, talking into account~~ marketplace. 2.7.3 If Landlord and Tenant cannot agree on the ~~terms~~ Fair Market Rental Rate within thirty (30) calendar days of ~~this Lease, the length~~ receipt by Landlord of the ~~Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made~~ notice of intent to exercise the ~~Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice~~ option to ~~Extend~~extend, Landlord shall, no more than fifteen (15) calendar days thereafter, select an independent M.A.I. real estate appraiser or real estate broker (certified in the State of Washington) with at least ten (10) years experience in the Puget Sound, Washington commercial real estate market, who shall ~~deliver~~ prepare a written market report of the Fair Market Rental Rate using the assumptions described in this paragraph. The market report shall be completed and delivered to Tenant ~~written notice~~ and Landlord within fifteen (15) calendar days from the ~~“PRR Notice”) advising Tenant of Landlord~~date Landlord selects the appraiser/broker. Such appraiser/broker’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Fair Market Rental Rate shall be ~~determined~~ determinative unless Tenant disputes it as provided in ~~accordance with Section 3.2.2 below. 3.2.2~~ the next sentence. If Tenant ~~does not accept Landlord~~disputes such determination, Tenant shall within fifteen (15) calendar days following delivery of the market report, deliver to Landlord written notice (a) that Tenant disputes such determination, and (b) of the identity of the appraiser/broker selected by Tenant meeting the qualifications set forth in this paragraph. The appraiser/broker selected by Tenant shall submit his market report of the Fair Market Rental Rate using the assumptions described in this paragraph within fifteen (15) calendar days following the delivery of Tenant’s notice to Landlord disputing the initial market report. If the two market reports are within five percent (5%) of each other (based on the higher number), the Fair Market Rental Rate shall be the average of the two appraisers/brokers’ determination of fair market rent. If not, then within ten (10) calendar days after the delivery of the second market report, the two appraisers/brokers shall appoint a third appraiser/broker meeting the qualifications set forth in this paragraph, and the third appraiser/broker shall deliver his decision within ten (10) calendar days following his selection and acceptance of the market report assignment. The third appraiser/broker shall be limited in authority to selecting, in this opinion, which of the two earlier market report determinations best reflects the Fair Market Rental Rate under the assumptions set forth in this paragraph. The third appraiser/broker must choose one of the two earlier determination, and, upon doing so, the third appraiser/broker’s determination shall be the controlling determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Fair Market Rental Rate. If Each party shall pay the costs and fees of the appraiser/broker it selected; if a third appraiser/broker is selected, the party whose determination is not selected to be the Fair Market Rental Rate by said third appraiser/broker shall pay all of said appraiser/broker’s costs and fees. 2.7.4 Notwithstanding anything herein to the contrary, if Tenant and Landlord ~~and Tenant fail, despite good-faith negotiations,~~ are unable to agree on the ~~Prevailing~~ Fair Market Rental Rate ~~on or~~ within twenty (20) calendar days after Tenant’s election to exercise its option to extend hereunder, provided that at least six (6) months remain after the expiration of the 20 day period before the expiration of the initial Lease Term, Tenant shall have the right to elect to revoke and terminate its election to exercise its option to extend the Lease Term up to the date ~~(the “Outside Date”)~~ that is ~~30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice~~ six (6) months prior to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement expiration date of the ~~Extension~~ initial Lease Term. If Tenant elects to revoke its election to exercise its option as set forth in the preceding sentence, ~~Landlord and~~ Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises remain liable for ~~the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant~~ any ~~allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option~~appraisal/broker fees it incurred under subparagraph 2.7.3 above.

Appears in 1 contract

Samples: Triple Net Lease (HouseValues, Inc.)

Option to Extend. Provided Tenant is not in default beyond any applicable cure period, or such default has been waived by Landlord, at the time Tenant exercises its option or at the time the then current term expires and further provided Tenant has not assigned the Lease or sublet the Premises in a transaction requiring Landlord's consent as set forth in Article XI, Tenant shall have ~~one~~ the right and option to extend the ~~Term~~ term of this Lease (for two renewal periods of five years each. Tenant shall give Landlord written notice exercising Tenant's option to extend the ~~“Extension Option”) for one additional period of 7 years (the “Extension Term”) on the terms and conditions~~ term of this ~~Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise~~ Lease not less than nine months prior to the ~~Extension Option by delivering written notice (a “Notice to Extend”) of its exercise~~ expiration of the ~~Extension Option~~ then current term. If not given in a timely manner, the option(s) to ~~Landlord not later than April 1, 2017. 3.2.1 The Net~~ extend will be of no force or effect. During each option period the Annual Base Rent ~~payable for each month during the Extension Term~~ shall be at the then prevailing fair market rental rate (~~the “Prevailing~~ hereinafter referred to as "Market Rental Rate~~”) at~~ "), based upon the price for comparable space in Class B buildings in the St. Louis suburban area, as of the commencement date of the ~~Extension Term~~intended renewal term, taking into consideration, without limitation, such relevant factors as the base year for ~~extensions~~ calculating Tenant's obligation with respect to increases in Taxes and Operating Expenses and the amounts of ~~space~~ these charges, the use of ~~equivalent~~ the Premises as general office, the condition, quality, ~~size, utility~~size and utility of the Premises, and ~~location in~~ the ~~Mendota Heights area, talking into account~~ caliber and financial strength of Tenant. In no event shall the ~~terms of this Lease,~~ Market Rental Rate be less than the ~~length~~ Annual Base Rent for the last year of the ~~Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made~~ Lease term prior to the ~~Premises at Tenant’s sole expense (~~Option period in ~~other words, without reimbursement through any allowance or credit) had been made~~question. ~~Within 30 days after receiving Tenant’s Notice to Extend,~~ Landlord shall ~~deliver to Tenant written notice (the “PRR Notice”) advising~~ notify Tenant of Landlord’s 's determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Market Rental Rate within 30 fifteen days after ~~Landlord’s PRR Notice as provided in Section 3.2.1,~~ receipt of Tenant's notice exercising its option. In the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that event Tenant disagrees with Landlord’s 's determination of ~~the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing~~ Market Rental Rate~~. If~~ , Tenant shall notify Landlord ~~and Tenant fail~~in writing of same, ~~despite good-faith negotiations~~along with Xxxxxx's written proposal of Market Rental Rate, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within ~~10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business~~ fifteen days after receipt of ~~such second notice~~Landlord `s determination. If ~~either party fails to give notice of such designation within such second 10 business day period,~~ the ~~first arbitrator chosen shall make the determination of the Prevailing~~ parties cannot agree upon a Market Rental Rate ~~alone. If two arbitrators have been designated, both arbitrators shall,~~ within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 fifteen business days after ~~the~~ Xxxxxxxx's receipt of ~~notice~~ Tenant's notice, the parties agree to have the Market Rental Rate determined by the process set forth below. (1) Each of ~~each other’s determinations to confer with each other~~ Landlord and ~~to attempt to reach agreement as to the determination~~ Tenant shall engage an appraiser who is a member of the ~~Prevailing~~ American Institute of Real Estate Appraisers (an "MAI APPRAISER") within twenty (20) days after Xxxxxxxx's receipt of Xxxxxx's notice . (2) Each MAI Appraiser shall determine the Market Rental ~~Rate~~Rate within thirty (30) days after the appointment of the last of the two. If the ~~two arbitrators agree on~~ appraisals are within 10% of each other the ~~Prevailing Rental Rate, that rate shall be final and binding upon~~ MAI Appraisers appointed by Landlord and ~~Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators~~ Tenant shall ~~promptly designate~~ choose a third ~~arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator~~ MAI Appraiser within ~~10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation~~ fifteen (15) days and shall notify Landlord and Tenant of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitratorschoice. Each party shall bear the cost of its appointed MAI Appraiser and shall share equally the ~~arbitrator it selects. The remaining~~ cost of the ~~arbitration shall be split evenly between~~ third MAI Appraiser. If the two appraisals are not within 10% of each other then each of the parties (shall pick a new MAI Appraiser and start the process over until the two appraisals are within 10% of each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenantother. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) ~~an uncured Event of Default exists at~~ The third MAI Appraiser shall appraise the ~~time Tenant delivers~~ property and determine the ~~Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term,~~ Market Rental Rate within thirty (30) days after its appointment and shall notify Landlord and Tenant thereof. (4) The average of the two highest appraisals shall ~~execute an amendment to this Lease extending~~ become the ~~Term and adjusting~~ Market Rental Rate for the ~~Net Rent to be the Prevailing~~ option period. (5) The Market Rental Rate~~. Tenant~~ , as determined by the foregoing procedure, shall ~~have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by~~ be binding upon Landlord ~~executed~~ and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant~~’s exercise of the Extension Option~~.

Appears in 1 contract

Samples: Lease Agreement (Panera Bread Co)

Option to Extend. ~~Tenant~~ So long as this Lease is in full force and effect and Lessee is not and has not at any time been in default under the Lease beyond any applicable cure period, Lessee may extend the Term of this Lease for the period of the Option Term by giving notice to Lessor on or before the Option Notice Date. The terms and conditions applicable to such option term shall be the same as set forth in this Lease except that the Lessee shall have ~~one option~~ no further right to extend the Term of this Lease (and the “Extension Option”) for one additional period of 7 years (the “Extension Term”) on the terms and conditions of this Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Annual Base Rent payable ~~for each month during~~ by Lessee with respect to the ~~Extension~~ Option Term shall be the Option Annual Base Rent, but not less than the Annual Base Rent immediately prior to the start of the Option Term. The fair market rental ~~rate (the “Prevailing Rental Rate”) at the commencement~~ value of the ~~Extension Term~~Demised Premises may be mutually agreed to by Lessor and Lessee and, ~~for extensions~~ if they have not so agreed in writing in any case within one (l) month following the exercise of ~~space of equivalent quality~~such option, ~~size~~the same shall be determined by appraisers, ~~utility~~one to be chosen by Lessor, one to be chosen by Lessee, and ~~location~~ a third to be selected by the two first chosen. In determining the fair market value of the Demised Premises, the parties shall take into account, not only the prevailing market terms (such as rent rates, amount of allowances, free rent periods and other similar factors), but also that Lessee has built out the then existing leasehold improvements and fixtures at Lessee's expense. As a result, the parties agree that the fair market rental value of the Demised Premises will be consistent with that of Class A office space (on the assumption that the Lessor had built out the Demised Premises for such use at Lessor's expense) or any other higher use at that time in comparable buildings in the ~~Mendota Heights~~ area, ~~talking into account the terms~~ but not with that of ~~this Lease, the length~~ a built-out research and development laboratory. All appraisers chosen or selected hereunder shall be independent of the ~~Extension Term~~parties, shall have received the M.A.I. (Member, Appraisal Institute) designation from the American Institute of Real Estate Appraisers and ~~all other relevant factors, but assuming that no improvements Tenant has made to~~ shall have had at least five (5) years of experience in appraising commercial real estate. The unanimous written decision of the ~~Premises at Tenant’s sole expense (in other words~~two first chosen, without ~~reimbursement through any allowance~~ selection and participation of a third appraiser, or ~~credit~~otherwise the written decision of a majority of three appraisers chosen and selected as aforesaid, shall be conclusive and binding upon Lessor and Lessee. Lessor and Lessee shall each notify the other of its appraiser within thirty (30) ~~had been made~~days following expiration of the aforesaid one (l) month period and, unless such two appraisers shall have reached a unanimous decision within seventy-five (75) days from said expiration, they shall within a further fifteen (15) days elect a third appraiser and notify Lessor and Lessee thereof. ~~Within 30 days after receiving Tenant’s Notice to Extend, Landlord~~ The third appraiser shall deliver to ~~Tenant~~ the Lessor and Lessee the written ~~notice (the “PRR Notice”) advising Tenant of Landlord’s determination~~ decision of the ~~Prevailing Rental Rate. Unless Tenant delivers to Landlord,~~ majority of them within 30 days ~~after receiving the PRR Notice, a written acceptance of Landlord’s determination~~ of the ~~Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination~~ selection of the ~~Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1,~~ third appraiser. Lessor and Lessee shall each bear the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination expense of the ~~Prevailing Rental Rate in~~ appraiser chosen by it and shall equally bear the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other expense of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties appraiser (~~and each party shall bear all of its own costs in connection with such arbitration~~if any). ~~The determination of the Prevailing Rental Rate in accordance~~ If, as contemplated by this Section, Annual Base Rent with ~~this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators~~ respect to any Option Term shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or been determined before the commencement date of ~~the Extension~~ such Option Term, ~~Landlord~~ then such Option Term may commence and ~~Tenant~~ from and after such commencement date, until the amount of such Option Annual Base Rent is so determined either by agreement of the parties or by appraisal, Lessee shall ~~execute an amendment~~ make payments towards such Option Annual Base Rent at the rates applicable for Annual Base Rent immediately prior to the commencement date of such Option Term, subject to retroactive adjustment in conformity with and payment of any additional amount within fifteen (15) days of the determination of Option Annual Base Rent for such option term pursuant to this Section. In no event shall the provisions of this Section be deemed to authorize an Annual Base Rent less than the Annual Base Rent immediately prior to the start of any Option Term. If the Lessee exercises its option to extend this Lease, the phrase Annual Base Rent as used in this Lease ~~extending~~ shall mean the Option Annual Base Rent during the Option Term and the word Term as used in this Lease shall mean the combined terms of the Term and ~~adjusting~~ the ~~Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension~~ Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension OptionTerm.

Appears in 1 contract

Samples: Lease Agreement (Geltex Pharmaceuticals Inc)

Option to Extend. A. Landlord hereby grants Tenant two (2) consecutive option(s) (individually, an “Option to Extend Term”) to extend the initial Lease Term (“Initial Term”) for the entire Premises only in accordance with the terms of this Article 45. An Option to Extend Term shall ~~have one option to~~ extend the Term of this Lease for an additional five (~~the “Extension Option”~~5) ~~for one additional period of 7~~ years (~~the~~ individually, an “~~Extension~~ Extended Term”) on commencing upon the expiration of the Initial Term or the first Extended CONFIDENTIAL TREATMENT HAS BEEN REQUESTED FOR PORTIONS OF THIS EXHIBIT. THE CONFIDENTIAL PORTIONS HAVE BEEN REDACTED AND ARE DENOTED BY A TRIPLE ASTERISK (***). THE CONFIDENTIAL PORTIONS HAVE BEEN SEPARATELY FILED WITH THE SECURITIES AND EXCHANGE COMMISSION. Term, as applicable. If Tenant exercises an Option to Extend Term, then all of the terms contained in this Lease shall continue in full force and conditions of this Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month effect during the ~~Extension~~ applicable Extended Term, except with respect to the following: (1) Annual Base Rent for the applicable Extended Term shall be adjusted on the first day of the applicable Extended Term to an amount equal to ninety-five percent (95%) of the then Fair Market Rental Value of the Premises, including escalations and typical step increases, but in no event less than Annual Base Rent payable immediately preceding the applicable Extended Term. The term “Fair Market Rental Value of the Premises” shall be, subject to the further terms of this Article 45, Landlord’s good faith calculation of the then prevailing fair market rental rate (for the ~~“Prevailing Rental Rate”) at~~ Premises as of the commencement of the ~~Extension~~ applicable Extended Term, taking into consideration all elements affecting the lease transaction, including standard tenant improvement allowances for ~~extensions~~ Class “A” office buildings (inclusive of ~~space of equivalent quality, size, utility, and location~~ parking decks) in the ~~Mendota Heights~~ Scottsdale/Loop 101 office market area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Office Sublease (Medicis Pharmaceutical Corp)

Option to Extend. 61.1 Tenant shall have one (1) FIVE (5) year option to extend the Lease at the then prevailing market rental rate, which is representative of the rentals, which will be charged to a tenant of similar size, stature and use of Tenant for new leases then being entered into a Class A office buildings in Warner Center in Woodland Hills, California at the time the option term will commence . To exercise an option, Tenant must provide written notice to that effect to Landlord at least nine (9) months prior to the expiration of the initial Term of ~~this~~ the Lease ~~(the “Extension Option”)~~ or any extension thereof. 61.2 Except for ~~one additional period of 7 years (the “Extension Term”) on the~~ Basic Monthly Rental rate and parking charges all terms and conditions of ~~this Section 3.2~~the Lease, including tax rent and expense rent, shall be in full force and effect during an option term, EXCEPT THE BASE YEAR FOR TAX RENT AND EXPENSE RENT SHALL BE ADJUSTED TO 2007. ~~The Extension Term~~ During any option term hereof, the monthly rental shall ~~commence,~~ be computed in accordance with Articles 61.1 and 61.4. 61.3 Tenant's option or options may be exercised only if ~~at all, on April 1, 2018, and end on March 31, 2025.~~ Tenant ~~may exercise~~ is not in default under the ~~Extension Option by delivering written notice (a “Notice to Extend”) of its exercise~~ Lease beyond all cure periods as of the ~~Extension Option to Landlord~~ date notice is served and remains so through the expiration of the initial Term or any extension thereof. If the option is properly exercised and Tenant is not ~~later than April 1~~in default beyond any applicable cure period, ~~2017. 3.2.1 The Net Rent payable for each month during~~ the ~~Extension~~ Term shall be extended for the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 belowperiod provided above. ~~3.2.2 If Tenant does not accept Landlord’s determination of~~ 61.4 In the ~~Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1,~~ event that the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt parties are unable to reach agreement as to the ~~determination~~ amount of the ~~Prevailing Rental Rate. If~~ rental during the ~~two arbitrators agree on~~ option term or terms of the ~~Prevailing Rental Rate~~Lease, ~~that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail~~ at least four (4) months prior to ~~agree on the Prevailing Rental Rate by~~ the end of the initial term or any extension thereof, each party shall within ten (10-) business ~~day period,~~ days select an appraiser. Such appraisers shall meet within ten (10) days after selection for the purpose of determining fair market value for the Premises based upon the current market value and then ~~the two arbitrators shall promptly designate a third arbitrator~~current market conditions. If ~~the two arbitrators fail~~ such appraisers are unable to ~~agree upon the designation of a third arbitrator within 10 business days~~agree, ~~then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator~~ an additional appraiser shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally be selected by the ~~parties that most closely approximates~~ designated appraisers. If such appraisers are unable to select a third appraiser, such their appraiser shall be appointed by the ~~third arbitrator’s own determination~~ presiding judge of the ~~Prevailing Rental Rate~~Superior Court of Los Angeles County, ~~and that choice by~~ State of California, at the ~~third arbitrator~~ request of either party. All appraisers appointed pursuant to these provisions shall be ~~binding upon Landlord~~ impartial and ~~Tenant. The third arbitrator shall have no right~~ unrelated, directly or indirectly, so far as employment or services are concerned, to ~~propose a middle ground or any modification of~~ either of the ~~determinations proposed by~~ parties hereto. Within ten (10) days of such appointment, all appraisers shall meet and determine the ~~original two arbitrators~~fair market rental value as set forth above, and shall resolve such question within twenty (20) days from the date of selection of the third appraiser. A majority decision shall be final at any time of the proceeding. Each party shall bear his or its own expenses, except that expenses relating to the ~~cost~~ selection and services of the ~~arbitrator it selects. The remaining cost of the arbitration~~ third appraiser shall be ~~split evenly between~~ borne equally by the ~~parties (~~parties. 61.5 Each and ~~each party shall bear all of~~ every option granted in this Article 61 are personal to Tenant and its ~~own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final~~ Affiliates and ~~binding in fixing the Prevailing Rental Rate. The arbitrators~~ shall not ~~have~~ inure to the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive benefit of any ~~broker from any brokerage firm currently representing (~~other successor, assignee or ~~who had previously represented within the preceding 2-year period) either Landlord~~ subtenant. Tenant or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of its Affiliates must be occupying the Premises ~~is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3)~~ when it exercises an ~~uncured Event of Default exists at the time Tenant delivers the Notice to Extend~~option. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Valuation and Qualifying Accounts (Syncor International Corp /De/)

Option to Extend. So long as: a) the Lease has been executed and delivered by Tenant ~~shall have one option~~ in form acceptable to Landlord; b) Tenant is not currently and has not continuously been in default under the Lease; c) the Lease has not previously been terminated; d) no Transfer affecting Tenant, the Premises or the Lease has occurred; e) Tenant is itself occupying the entire Premises; f) No prior rights of existing tenants in the Building exist; and g) Tenant gives to Landlord written notice of its intention to extend the Term of ~~this~~ the Lease not more than nine (9) months nor less than six (6) months prior to the ~~“Extension Option”)~~ expiry of the Term. Tenant shall have the right to extend the Term of the Lease for ~~one additional period of 7~~ a further 5 years (upon the ~~“Extension Term”) on the~~ same terms and conditions as contained in the Lease except as otherwise expressly provided therein and except that there shall be no further right of ~~this Section 3.2. The Extension Term shall commence~~extension or renewal, ~~if at all, on April 1, 2018,~~ no fixturing period and ~~end on March 31, 2025.~~ the rates for any storage space and/or parking spaces used by Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the Landlord’s then applicable rates and annual Basic Rent shall be equal to the fair market ~~rental rate (~~annual Basic Rent for the ~~“Prevailing Rental Rate”) at~~ Premises as agreed upon by the ~~commencement~~ parties having regard to the finished condition of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at ~~Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice~~ the time of extension and having regard to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, then applicable basic rental levels for similar premises for a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate similar term in the ~~PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate~~Building. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen The parties shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt all reasonable efforts to reach agreement as to the ~~determination~~ fair market annual Basic Rent for the extension term not less than three months prior to the commencement of the ~~Prevailing Rental Rate~~extension term, and failing such agreement, fair market annual Basic Rent for the extension term shall be fixed by an independent real estate appraiser appointed by Landlord and approved by Tenant acting reasonably. If ~~the two arbitrators agree on the Prevailing Rental Rate~~Landlord so elects, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute ~~an amendment~~ Landlord’s then current form of lease amending agreement or lease, as determined by Landlord, to ~~this Lease extending the Term and adjusting the Net Rent~~ give effect to ~~be the Prevailing Rental Rate. Tenant shall have no further~~ such extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the ~~Extension Option~~Term.

Appears in 1 contract

Samples: Office Space Lease (Aquinox Pharmaceuticals, Inc)

Option to Extend. Subject to the terms and conditions set forth below, Tenant ~~shall have one~~ may at its option to extend the Term of this Lease for One (1) period of Five (5) years. Such period is called the “~~Extension Option”) for one additional period of 7 years (the “Extension~~ Renewal Term~~”) on the terms and conditions of this Section 3.2.~~ .” The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Renewal Term shall be upon the ~~fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location~~ same terms contained in ~~the Mendota Heights area, talking into account the terms of~~ this Lease, ~~the length of the Extension Term, and all other relevant factors, but assuming~~ except that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide Tenant with any Tenant Improvement Allowance or demolition in connection with the Renewal Term, (ii) the Base Rental during the Renewal Term shall be calculated as set forth below, and (iii) any reference in the Lease to the “Term” of the Lease shall be deemed to include the Renewal Term and apply thereto, unless it is expressly provided otherwise. Tenant shall have no additional extension options. The Base Rent during the Renewal Term shall be at the then Fair Market Rate (defined hereinafter) for such space for a term commencing of the first day of the Renewal Term. “Market Rate” shall mean the then prevailing market rate for a comparable term commencing on the first day of the Renewal Term for tenants of comparable size and creditworthiness for comparable space in the Building and other Office buildings in the Alameda Area. In no event shall the Base Rent payable during the first (1st) year of the Renewal Term be less than the 36th Month’s Rent. Base Rent during the Renewal Term shall increase at four percent (4%) per year. To exercise any ~~allowances~~ option, Tenant must deliver a binding written notice to Landlord not sooner than twelve (~~e.g.~~12) months nor later than six (6) months prior to the expiration of the initial Term of this Lease. Thereafter, ~~moving allowance~~the Market Rate for the Renewal Term shall be calculated by Landlord and Landlord shall inform Tenant of the Market Rate. If the parties cannot agree on the Market Rate within thirty (30) days following Landlord’s delivery of a statement of Fair Market Rent, ~~construction allowance~~the parties shall each, within ten (10) business days following the expiration of such thirty (30) day period, appoint a real estate broker (with at least 10 years experience in office leasing in Alameda) to determine the Market Rate, and each such broker will deliver its determination within ten (10) additional business days. If the lower of the two is within 90% of the higher of the two valuations, then the Market Rent shall be the average of the two. If a party fails to timely designate a broker, the broker designated by the other party will determine the Market Rate. If the lower of the two valuations is less than 90% of the higher valuation, then the two brokers/appraisers originally selected by the parties shall, within five (5) business days, select a third broker/appraiser and shall present their final determinations of Market Rate to the third broker/appraiser, and the ~~like) or other tenant inducements in connection with Tenant’s exercise~~ third broker/appraiser shall pick one of those two as being the Market Rate. The determination of the ~~Extension Option~~third broker/appraiser shall be binding on the parties. If Tenant fails to timely give its notice of exercise, Tenant will be deemed to have waived its option to extend.

Appears in 1 contract

Samples: Lease (Penumbra Inc)

Option to Extend. So long as: a) the Lease has been executed and delivered by Tenant ~~shall have one option~~ in form acceptable to Landlord; b) Tenant is not and has not been in default under the Lease; c) the Lease has not previously been terminated; d) no Transfer affecting Tenant, the Premises or the Lease has occurred; e) Tenant is itself occupying the entire Premises; f) No prior rights of existing tenants in the Building exist; and g) Tenant gives to Landlord written notice of its intention to extend the Term of ~~this~~ the Lease not more than twelve (12) months nor less than nine (9) months prior to the ~~“Extension Option”)~~ expiry of the Term. Tenant shall have the right to extend the Term of the Lease for ~~one additional period of 7~~ a further 5 years (upon the ~~“Extension Term”) on the~~ same terms and conditions as contained in the Lease except as otherwise expressly provided therein and except that there shall be no further right of ~~this Section 3.2. The Extension Term shall commence~~extension or renewal, ~~if at all~~no rent concessions, ~~on April 1~~no Landlord’s Work required, ~~2018~~no fixturing period and no tenant allowance or any other amount payable by Landlord to Tenant, ~~and end on March 31, 2025.~~ the rates for any storage space and/or parking spaces used by Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the Landlord’s then applicable rates and annual Basic Rent shall be equal to: (i) the fair market ~~rental rate (~~annual Basic Rent for the ~~“Prevailing Rental Rate”) at~~ Premises as agreed upon by the ~~commencement~~ parties having regard to the finished condition of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at ~~Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice~~ the time of extension and having regard to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, then applicable basic rental levels for similar premises for a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate similar term in the ~~PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate~~Building. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen The parties shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt all reasonable efforts to reach agreement as to the ~~determination~~ fair market annual Basic Rent for the extension term not less than three months prior to the commencement of the ~~Prevailing Rental Rate~~extension term, and failing such agreement, fair market annual Basic Rent for the extension term shall be fixed by an independent real estate appraiser appointed by Landlord and approved by Tenant acting reasonably. If ~~the two arbitrators agree on the Prevailing Rental Rate~~Landlord so elects, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute ~~an amendment~~ Landlord’s then current form of lease amending agreement or lease, as determined by Landlord, to ~~this Lease extending the Term and adjusting the Net Rent~~ give effect to ~~be the Prevailing Rental Rate. Tenant shall have no further~~ such extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the ~~Extension Option~~Term.

Appears in 1 contract

Samples: Lease Agreement (Dirtt Environmental Solutions LTD)

Option to Extend. Tenant ~~shall have one option~~ may elect to extend the Term of this Lease for one (1) five- (5) year period (the ~~“Extension Option”) for one additional period of 7 years (the “~~"Extension Term”"), by giving Landlord notice of such election no later than nine (9) on months prior to the ~~terms~~ Expiration Date. Such extension shall be upon the terms, covenants, and conditions of contained in this ~~Section 3.2. The Extension~~ Lease except that Tenant shall have no further right to extend the Lease Term ~~shall commence, if at all, on April 1, 2018,~~ and ~~end on March 31, 2025. Tenant may exercise~~ except that the ~~Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net~~ Base Rent ~~payable~~ for ~~each month during~~ the Extension Term shall be ~~the~~ at fair market ~~rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term,~~ rent for ~~extensions of~~ comparable space ~~of equivalent quality, size, utility, and location~~ in comparable properties in the ~~Mendota Heights area, talking into account~~ downtown Boston area and not less than the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Ratethen current Base Rent. If Landlord and Tenant ~~fail, despite good-faith negotiations,~~ are unable to agree on the ~~Prevailing Rental Rate on or before~~ amount of such fair market rent by the date that is thirty (30) days after the date of Tenant's election notice based on rental rates and terms for comparable space in the downtown Boston area, then Landlord shall promptly specify in writing the rent (the ~~“Outside Date”~~Landlord's Rental Rate") ~~that~~ at which Landlord is ~~30 days after Landlord receives~~ willing to lease the ~~PRR Objection Notice,~~ Premise for the Extension Term and Tenant shall promptly specify in writing the rent (the "Tenant's Rental Rate") which Tenant is willing to pay for the Premises for the Extension Term and the amount of the fair market rent shall be established by appraisal in the following manner. The Landlord and Tenant shall each appoint one appraiser and the two appraisers so appointed shall ~~give notice to~~ determine the ~~other~~ fair market rent within thirty days of ~~the name and address of an arbitrator designated by the party giving such~~ Tenant's election notice. If ~~either party fails to give notice of~~ such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail appraisers are unable to agree on the ~~Prevailing Rental Rate by the end~~ amount of ~~the 10~~such fair market rent within such 30-~~business~~ day period, ~~then the two arbitrators~~ they shall ~~promptly designate~~ appoint a third ~~arbitrator. If~~ appraiser within ten (10) days of the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation expiration of such ~~arbitrator. The third arbitrator~~ period, who shall ~~conduct such hearing and investigations~~ be instructed to select, as ~~he or she deems appropriate and shall, within 30 days after his or her designation, choose~~ between the ~~one determination out of the two determinations~~ rents chosen by the two ~~arbitrators originally~~ appraisers, the rent that is closest to the third appraiser's estimate of Fair Market Rent. The fair market rent shall be the amount so selected by the ~~parties that most closely approximates the~~ third ~~arbitrator’s own determination of the Prevailing Rental Rate,~~ appraiser and ~~that choice by the third arbitrator~~ shall be ~~binding upon~~ conclusive on the Landlord and Tenant~~. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators~~. Each party shall bear the cost of its appraiser. If the ~~arbitrator it selects. The remaining~~ rental rate as so determined is equal to or greater than Landlord's Rental Rate, then Tenant shall pay the entire cost of the ~~arbitration~~ third appraiser and if such rate as so determined is equal to or less than Tenant's Rental Rate, then Landlord shall ~~be split evenly~~ pay the entire cost of the third appraiser. If the rate is between the ~~parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing~~ Landlord's Rental Rate ~~in accordance with this Section 3.2.2 shall be final~~ and ~~binding in fixing~~ the ~~Prevailing~~ Tenant's Rental Rate~~. The arbitrators shall not have the power to add to~~, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, then Landlord and Tenant shall ~~execute an amendment to this Lease extending~~ share the ~~Term and adjusting~~ cost equally. Until such time as the ~~Net Rent to be the Prevailing Rental Rate.~~ fair market rent is so determined, Tenant shall ~~have no further extension or renewal option other than~~ continue to pay Base Rent at the ~~Extension Option except pursuant to an express written agreement~~ rate of $391,311.00 per annum in monthly installments of $32,609.25 with appropriate adjustment once the fair market rent is determined. The third appraiser's estimate shall be based on the data supplied and used by ~~Landlord executed and delivered after~~ the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, original two appraisers and the ~~like) or other tenant inducements~~ findings made by the third appraiser shall be set forth in ~~connection with Tenant’s exercise of the Extension Option~~writing.

Appears in 1 contract

Samples: Lease Agreement (Point Therapeutics Inc)

Option to Extend. Provided Tenant is not in default hereunder beyond applicable notice and cure periods, Tenant shall have ~~one option~~ the right to extend the ~~Term~~ term of this Lease ~~(the “Extension Option”)~~ for one ~~additional~~ period of 7 two (2) years by notice to Landlord to such effect given no later than twelve (12) months nor earlier than fifteen (15) months prior to the ~~“Extension Term”) on~~ end of the then term of this Lease and if Tenant timely and properly gives such notice then the term of this Lease shall be extended without the necessity of any further action between Landlord and Tenant upon all the terms and conditions set forth herein except that the fixed rent shall be the greater of ~~this Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018,~~ (x) fixed rent per annum and ~~end on March 31, 2025. Tenant may exercise~~ additional rent under Article VIII for the ~~Extension Option by delivering written notice~~ 12-month period immediately preceding the commencement of the extension term (a the “~~Notice to Extend~~Current Rent”) ~~of its exercise~~ or (y) the then fair market rental value of the ~~Extension Option~~ Premises. If Tenant timely and properly exercises such option to extend, then Landlord ~~not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term~~ shall be give to Tenant its determination as to the fair market rental ~~rate (the “Prevailing Rental Rate”) at the commencement~~ value of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense Premises. If within sixty (~~in other words, without reimbursement through any allowance or credit~~60) ~~had been made. Within 30~~ days after ~~receiving Tenant~~Txxxxx’s ~~Notice~~ exercise of its right to ~~Extend,~~ extend Landlord has not submitted such determination to Tenant then Tenant may request such determination from Landlord and Landlord shall ~~deliver~~ submit the same to Tenant ~~written notice~~ within ten (~~the “PRR Notice”~~10) ~~advising Tenant~~ days after such request. If after receipt of Landlord’s determination ~~of the Prevailing Rental Rate. Unless~~ Tenant ~~delivers~~ determines to ~~Landlord,~~ contest such determination then by notice to Landlord given within 30 thirty (30) days after ~~receiving the PRR Notice, a written acceptance~~ its receipt of Landlord’s determination of Tenant may request that the ~~Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s~~ determination of ~~the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall~~ fair market rental value be ~~determined~~ made by arbitration as follows~~. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination~~ : Each of ~~the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If~~ Landlord and Tenant ~~fail, despite good-faith negotiations,~~ shall designate a person to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second act as arbitrator, ~~make their determination~~ which person shall be a person with at least five years experience in the appraisal of real property in the ~~Prevailing Rental Rate in writing~~ City of Boston and ~~give notice to each other and to~~ shall not be directly employed by Landlord ~~and~~ or Tenant. The two ~~arbitrators~~ appraisers so chosen shall ~~have 10 business~~ within thirty (30) days ~~after~~ of their selection determine the ~~receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination~~ fair market rental value of the ~~Prevailing Rental Rate. If~~ Premises but if the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail appraisers are unable to agree upon such fair market rental value within such period then the ~~designation of~~ determination shall be made by a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations appraiser selected by the two ~~arbitrators originally selected~~ appraisers, which appraiser likewise shall not be directly employed by ~~the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate,~~ either Landlord or Tenant and ~~that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator~~ shall have ~~no right to propose a middle ground or any modification~~ at least five years experience in the appraisal of ~~either~~ real property within the City of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration)Nxxxxx. The determination of the ~~Prevailing Rental Rate in accordance with this Section 3.2.2~~ third appraiser shall be ~~final and binding in fixing the Prevailing Rental Rate~~final. The ~~arbitrators shall not have the power to add to, modify, or change any~~ costs and expenses of the ~~provisions of this Lease. All arbitrators~~ third appraiser shall be ~~real estate brokers with at least 5 years~~ borne jointly by Landlord and Txxxxx. Until the determination of ~~continuous experience in~~ the ~~business~~ fair market rental value has been determined Tenant shall pay to Landlord on account of ~~acting as real estate agents or brokers~~ fixed rent for and with respect to ~~comparable commercial office buildings in~~ the ~~southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within~~ extension term at the ~~preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any~~ rate of the ~~following: (1) either this Lease or Tenant’s right to possession~~ Current Rent per annum, with a prompt adjustment as soon as the fair market rental value of the Premises ~~is terminated; (2) Tenant fails to timely exercise~~ for the ~~Extension Option, time being~~ extension term has been determined. Fixed Rent shall be payable during the extension term in monthly installments of 1/12th of the ~~essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then,~~ annual amount in advance on ~~or before~~ the commencement date of the ~~Extension Term~~extension term and on the first day of each month thereafter. WITNESS the execution hereof in any number of counterparts, ~~Landlord~~ each of which counterparts shall be deemed an original for all purposes, as of the day and ~~Tenant shall execute~~ year first above written. TDC HERITAGE LLC By: TDC Holding Corp., its manager By: /s/ Rxxxxx Xxxxxx Its hereunto duly authorized PARATEK PHARMA, LLC. By: /s/ Dxxxxxx X. Xxxxx Its Hereunto duly authorized (Tenant) G U A R A N T E E FOR VALUE RECEIVED, and in consideration for, and as an ~~amendment~~ inducement to ~~this Lease extending~~ TD HERITAGE LLC (the ~~Term~~ “Landlord”) to make the foregoing lease (the “Lease”) with PARATEK PHARMA, LLC (the “Tenant”), the undersigned, PARATEK PHARMACEUTICALS, INC., a Delaware corporation (the “Guarantor”), unconditionally guarantees the full performance and ~~adjusting~~ observance of all the ~~Net Rent~~ covenants, conditions and agreements therein provided to be performed and observed by the ~~Prevailing Rental Rate~~Tenant, the Tenant’s successors and assigns, and expressly agrees that the validity of this agreement and the obligations of the Guarantor shall in no way be terminated, affected or impaired by reason of the granting by the Landlord of any indulgences to the Tenant or by reason of the assertion by the Landlord against the Tenant of any of the rights or remedies reserved to the Landlord pursuant to the provisions of the Lease or by the relief of the Tenant from any of the Tenant’s obligations under the Lease by operation of law or otherwise (including, but without limitation, the rejection of the Lease in connection with proceedings under the bankruptcy laws now or hereafter enacted); the Guarantor hereby waiving all suretyship defenses. The obligations of the Guarantor include the payment to Landlord of any monies payable by Tenant under any provisions of the Lease, at law, or in equity, including, without limitation, any monies payable by virtue of the breach of any warranty, the grant of any indemnity or by virtue of any other covenant of Tenant under the Lease. The Guarantor further covenants and agrees that this Guarantee shall remain and continue in full force and effect as to any renewal, modification or extension of the Lease, whether or not the Guarantor shall have no received any notice of or consented to such renewal, modification or extension. The Guarantor further ~~extension or renewal option other than~~ agrees that its liability under this Guarantee shall be primary (and that the ~~Extension Option except pursuant~~ heading of this instrument and the use of the word “guarantee(s)” shall not be interpreted to ~~an express written agreement by Landlord executed and delivered after~~ limit the ~~Lease Date. Landlord shall lease to Tenant~~ aforesaid primary obligations of the ~~Premises for the Extension Term in its then-current condition~~Guarantor), and that in any right of action which shall accrue to the Landlord ~~shall have no obligation to provide to Tenant~~ under the Lease, the Landlord may, at its option, proceed against the Guarantor, any ~~allowances (e.g., moving allowance, construction allowance~~other guarantor, and the ~~like~~Tenant, jointly or severally, and may proceed against the Guarantor without having commenced any action against or having obtained any judgment against the Tenant or any other guarantor. The Guarantor irrevocably waives any and all rights the Guarantor may have at any time (whether arising directly or indirectly, by operation of law or by contract or otherwise) to assert any claim against the Tenant on account of payments made under this Guarantee, including, without limitation, any and all rights of or claim for subrogation, contribution, reimbursement, exoneration and indemnity, and further waives any benefit of and any right to participate in any security deposit or other ~~tenant inducements~~ collateral which may be held by the Landlord; and the Guarantor will not claim any set-off or counterclaim against the Tenant in ~~connection with~~ respect of any liability the Guarantor may have to the Tenant~~’s exercise~~ . The Guarantor further represents to the Landlord as an inducement for it to make the Lease, that the Guarantor owns all of the ~~Extension Option~~entire outstanding capital stock of the Tenant, that the execution and delivery of this Guarantee is not in contravention of its charter or by-laws or applicable state laws, and has been duly authorized by its Board of Directors. It is agreed that the failure of the Landlord to insist in any one or more instances upon a strict performance or observance of any of the terms, provisions or covenants of the Lease or to exercise any right therein contained shall not be construed or deemed to be a waiver or relinquishment for the future of such term, provision, covenant or right, but the same shall continue and remain in full force and effect. Receipt by the Landlord of rent with knowledge of the breach of any provision of the Lease shall not be deemed a waiver of such breach. No subletting, assignment or other transfer of the Lease, or any interest therein, shall operate to extinguish or diminish the liability of the Guarantor under this Guarantee; and wherever reference is made to the liability of the Tenant named in the Lease, such reference shall be deemed likewise to refer to the Guarantor. All payments becoming due under this Guarantee, including, without limitation, costs of collection, and not paid when due shall bear interest from the applicable due date until received by the Landlord at the interest rate set forth in the Lease. It is further agreed that all of the terms and provisions hereof shall inure to the benefit of the heirs, executors, administrators and assigns of the Landlord, and shall be binding upon the successors and assigns of the Guarantor.

Appears in 1 contract

Samples: Office Lease (Paratek Pharmaceuticals, Inc.)

Option to Extend. (a) Subject to the terms of this Paragraph 40 and Paragraph 41, entitled "Option," Landlord hereby grants to Tenant ~~shall have one~~ the option (the "Extension Option") to extend the Term of this Lease (with respect to the ~~“Extension Option”)~~ entire Premises for one (1) additional period of 7 five (5) years (the ~~“Extension~~ "Option Term~~”) on~~ "), in the ~~terms~~ same terms, covenants and conditions of as provided for in this Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month Lease during the ~~Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension~~ initial Lease Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming except that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension ~~or renewal option other than~~ rights, and (ii) all economic terms such as, without limitation, Monthly Base Rent, an Operating Expense Allowance, if any, parking charges, etc., shall be established based on the ~~Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant~~ "fair market rental rate" for the Premises for the Option Term as defined and determined in accordance with the provisions of this Paragraph 40 below. (b) The Extension ~~Term in its then-current condition~~Option must be exercised, if at all, by written notice ("Extension Notice") delivered by Tenant to Landlord no later than the due date which is two hundred seventy (270) days, and no earlier than the date which is one (1) year, prior to the expiration of the then current Term of this Lease. (c) The term "fair market rental rate" as used in this Addendum shall mean the annual amount per rentable square foot, projected during the relevant period, that a willing, financially comparable, non-equity, renewal tenant (excluding sublease and assignment transactions) would pay, and a willing, institutional landlord of a comparable quality office building located in the John Wayne Airport area ("Comparison Xxxx") xxuld accept, at arm's length (what Landlord ~~shall have no obligation to provide to Tenant any allowances (e.g.~~is accepting in current transactions for the Building may be considered), ~~moving~~ for space comparable in size, quality and floor height as the leased area at issue taking into account items that professional real estate brokers customarily consider, including, but not limited to, rental rates, office space availability, tenant size, tenant improvement allowances, operating expenses and allowance, ~~construction allowance,~~ parking charges and any other economic matters then being charged by Landlord or the ~~like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option~~lessor off such similar office buildings.

Appears in 1 contract

Samples: Sublease (Thinka Weight Loss Corp)

Option to Extend. Provided Tenant is not in Default of any term or condition of this Lease as of the date of exercise of the renewal term, Tenant shall have ~~one~~ the option to ~~extend~~ renew the ~~Term~~ term of ~~this~~ the Lease ~~(the “Extension Option”)~~ for one additional ~~period of 7 years~~ five (~~the “Extension Term”~~5) year term, on the same terms and conditions of ~~this Section 3.2~~the Lease, except that the Base Rent at the beginning of each renewal term shall be adjusted to equal the then prevailing market rental rate for comparable leases for similar projects within the Central Business District in Austin as of the commencement of the renewal term (but not less than the Base Rent in effect immediately prior to the date of the renewal term). The ~~Extension Term~~ option shall ~~commence,~~ be exercised (if at all) by Tenant giving irrevocable written notice to Landlord at least twelve (12) months prior to the expiration of the Term. The option shall be personal to the originally named Tenant and any party succeeding to Tenant under a Permitted Transfer. The prevailing market rental rate shall be determined in the following manner: Prevailing market rental rate shall be determined taking into account all relevant factors, ~~on April 1~~including (to the extent relevant) number of months of free rent, ~~2018~~if any (which shall be part of the determination of the rental rate), tenant improvement obligations, moving allowances, and ~~end on March 31~~leasing commissions and costs. The term "comparable leases" shall not include leases entered into under special circumstances affecting the economics of the tenancies, ~~2025~~including following the exercise of options to lease space at other than then current prevailing market rate, the lease of awkward or unusually shaped space or space without windows or other usual amenities, leases entered into under conditions where the landlord was forced to lease the space by external legal, economic, or other pressures not generally applicable to the market, or the sublease of space by a sublandlord not primarily in the business of leasing space similar to the Premises. Within one hundred twenty (120) days after the date Tenant has exercised its option to renew, Landlord shall give Tenant notice of Landlord's proposed prevailing market rental value for the Premises. Tenant ~~may exercise the Extension Option by delivering~~ shall give Landlord written notice within thirty (30) days thereafter as to whether or not Tenant agrees with Landlord's proposed prevailing market rental value. If Tenant disagrees with Landlord's proposed prevailing market rental value, the parties shall negotiate in good faith to resolve their differences for a ~~“Notice~~ period of thirty (30) days. Upon the expiration of such thirty day period, if the parties are not in agreement as to ~~Extend”) of its exercise of the Extension Option~~ such prevailing market rental value, then either party may initiate appraisal to ~~Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be~~ determine the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant value by giving written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of party, such notice containing the name ~~and address~~ of an ~~arbitrator designated~~ appraiser appointed by such initiating party. Within fifteen (15) days thereafter, the party ~~giving~~ receiving such ~~notice. If either party fails to give~~ notice ~~of such designation within 10 business days after the Outside Date, the other party~~ shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing appoint its own appraiser and give written notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as thereof to the ~~determination of the Prevailing Rental Rate~~initiating party. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business second appraiser is not appointed within such fifteen day period, then the appraiser selected by the initiating party shall determine the fair market rental value of the Premises, and such appraisal shall be binding upon the parties. If the second appraiser is timely appointed, then the two ~~arbitrators~~ appraisers shall ~~promptly designate a third arbitrator~~simultaneously submit to each other their good faith estimate of prevailing market rental value within thirty (30) days of appointment of the second appraiser and attempt to agree on the prevailing market rental value. If the two ~~arbitrators fail~~ appraisers are unable to ~~agree upon~~ agree, but the ~~designation of a third arbitrator within 10 business days~~higher appraisal is no more than ten percent (10%) higher than the lower appraisal, then ~~either party may apply to~~ the ~~American Arbitration Association or any successor having jurisdiction for~~ prevailing market rental value shall be the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out average of the two ~~determinations~~ appraisals. If the higher appraisal is more than ten percent (10%) greater than the lower appraisal, the two appraisers shall together select a third appraiser who shall also determine the prevailing market rental value. If three appraisers are ultimately appointed and any two appraisers agree on the prevailing market rental value, the value agreed upon by the two ~~arbitrators originally selected by~~ appraisers shall be the ~~parties that most closely approximates~~ prevailing market rental value. If the ~~third arbitrator’s own determination~~ three appraisers all determine different prevailing market rental values, then the prevailing market rental value shall be the average of the ~~Prevailing Rental Rate, and that choice by the third arbitrator~~ two closest appraisals. All appraisers shall be ~~binding upon Landlord~~ members of the MAI and ~~Tenant. The third arbitrator~~ shall have ~~no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators~~at least ten (10) years' experience appraising similar property in Austin. Each party shall bear the cost of the ~~arbitrator it selects. The remaining~~ appraiser appointed by such party, and the parties shall share equally in the cost of the ~~arbitration shall be split evenly between~~ third appraiser, if appointed. If the ~~parties (and each~~ two appraisers initially appointed are unable to agree on a third appraiser, then either party shall ~~bear all of its own costs in connection with such arbitration). The determination~~ have the right to apply to the presiding judge of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant Superior Court having jurisdiction over the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise appointment of ~~the Extension Option~~a third appraiser.

Appears in 1 contract

Samples: Triple Net Lease (Athenahealth Inc)

Option to Extend. Landlord hereby grants to Tenant ~~shall have one~~ the option to ~~extend~~ renew this lease for an additional term of five (5) years, upon the ~~Term of this Lease (the “Extension Option”) for one additional period of 7 years (the “Extension Term”) on the~~ then prevailing rental rate and terms and conditions then offered by Landlord for new leases of comparable space within the Building, provided that Tenant not be in default under this ~~Section 3.2. The Extension Term shall commence, if~~ lease at ~~all, on April 1, 2018~~the time that the option is exercised, and ~~end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its~~ at any time from Tenant’s exercise of the ~~Extension Option~~ option to ~~Landlord not~~ the commencement date of the extended term. This option must be exercised by written notice to Landlord, accompanied by payment of the first month’s rental for the extended term, no later than ~~April 1~~twelve (12) months prior to the expiration of the original lease term. Landlord shall, ~~2017. 3.2.1~~ on request of Tenant advise Tenant in writing no later than 13 months prior to expiration of the Lease term, of the then prevailing rental rate and terms and conditions operative under this paragraph. The ~~Net Rent payable for each month during the Extension Term~~ adjusted base rental shall be equal to the ~~fair market~~ then prevailing rental rate (for comparable space within the ~~“Prevailing Rental Rate”) at~~ Building; and in no event shall the ~~commencement of~~ base rent be less than the ~~Extension Term~~rent, ~~for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account~~ as escalated pursuant to the terms of this Lease, due and payable during the ~~length~~ last month immediately preceding the commencement date of the ~~Extension Term~~extended term. If Tenant disagrees with the rental rate stated in Landlord’s notice, ~~and all other relevant factors, but assuming that no improvements~~ Tenant ~~has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend,~~ may give Landlord ~~shall deliver to Tenant~~ written notice no later than ten (~~the “PRR Notice”~~10) ~~advising Tenant~~ business days following its receipt of Landlord’s ~~determination~~ notice of its election to have such rental rate determined by arbitration, which notice shall state the ~~Prevailing Rental Rate~~rental rate suggested by Tenant. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 Within ten (10) business days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination receipt of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Noticesuch notice, Landlord and Tenant shall each appoint an experienced commercial leasing broker, and the appointed brokers shall ~~give notice to the other~~ within three (3) business days after their appointment, jointly appoint a single broker. Each of said brokers shall be informed of the ~~name~~ rental rate proposed by Landlord and ~~address~~ Tenant, and each of ~~an arbitrator designated~~ them shall select the rate which he or she deems the prevailing rate within five (5) business days following the selection of the third broker. The rate selected by a majority of the brokers shall be the rate used for the option term. Each party ~~giving~~ shall pay the fee of the broker selected by such ~~notice~~party and one half of the fee of the third broker. If ~~either party fails to give notice of such designation~~ Tenant invokes arbitration, Tenant shall notify Landlord in writing within 10 five (5) business days after the ~~Outside Date~~brokers’ decision is made, ~~the other party shall provide an additional notice~~ whether or not Tenant elects to ~~such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice~~exercise its option hereunder. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator Tenant shall have no right to ~~propose a middle ground or any modification of either of~~ extend the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions term of this ~~Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in~~ Lease beyond the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenantadditional term set forth above. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Sublease Agreement (PRN Corp)

Option to Extend. Provided that OXIGENE, Inc. is in occupancy of the Premises as of the Notice Date (as hereinafter defined) and on the first day of the Extension Term, and that Tenant is not in default under the Lease on the Notice Date and the first day of the Extension Term, then Tenant shall have ~~one~~ the option ~~to extend the Term of this Lease~~ (the “Extension Option”) to extend the term hereof for one (1) additional period of ~~7 years~~ one (1) year (the “Extension Term”) ~~on the terms and conditions of this Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option~~ by ~~delivering~~ giving Landlord written notice ~~(a “Notice to Extend”)~~ of ~~its~~ such exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date nine (9) months prior to the Termination Date (“~~Outside~~ the Notice Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice). If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, or, if at the time ~~being~~ of exercise or on the first day of the ~~essence~~ Extension Term Tenant has failed to satisfy the conditions set forth in this Section 2, then this Extension Option shall immediately and automatically terminate and any rights of Tenant in the Extension Term shall be void and without force and effect. All terms and conditions of this Lease shall remain in effect with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, ~~Landlord and Tenant~~ except that, a) there shall ~~execute an amendment~~ be no further option to ~~this Lease extending~~ extend the Term ~~and adjusting~~ of the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current conditionLease, ~~and~~ b) Landlord shall have no obligation to perform leasehold improvements or to provide an allowance for leasehold improvements, rent credit or other incentives customarily provided to new tenants, c) the Extension Option is not transferable to any third party, except a Permitted Transferee, and d) annual Base Rent shall be as follows: Base Rent shall be increased effective as of the commencement of the Extension Term to reflect the fair market rental value for comparable office space within the Waltham market, but not less than the rate in effect during the last month of the initial lease term, taking into account Tenant’s obligations to pay Additional Rent and all other provisions of this Lease. Said fair market rental value shall be as determined in a notice given by Landlord to Tenant. In the event that Tenant ~~any allowances~~ disputes Landlord’s determination of fair market rental value, and if Landlord and Tenant cannot mutually agree upon the same within forty-five (~~e.g.~~45) days following receipt of Tenant’s objection, ~~moving allowance~~then in such event said fair market rental value shall be determined by appraisers, ~~construction allowance~~one to be chosen by Landlord, one to be chosen by Tenant, and a third to be selected by the two first chosen. The unanimous written decision of the first two chosen, without selection and participation of a third appraiser, or otherwise the written decision of a majority of three appraisers chosen and selected as aforesaid, shall be conclusive and binding xxxx Xxxx Xxxx Xxxxxxxx Xxxx, Xxxxxxx, XX OXIGENE, Inc. April 16, 2009 Landlord and Tenant. Landlord and Tenant shall each notify the other of its chosen appraiser within ten (10) days following expiration of the aforesaid forty-five (45) day period and, unless such two appraisers shall have reached a unanimous decision within thirty (30) days after having been chosen, they shall within a further ten (10) days elect a third appraiser and notify Landlord and Tenant thereof. Each party shall bear the expense of the appraiser chosen by such party pursuant to this Section, and the ~~like) or other tenant inducements in connection with Tenant’s exercise~~ parties shall equally share the expense of the ~~Extension Option~~third appraiser (if any). If Base Rent shall not have been determined prior to the commencement thereof, Tenant shall continue to pay Base Rent at the rate most recently in effect, subject to retroactive adjustment by both parties within fifteen (15) days after Base Rent for such period has in fact been determined. In no event shall the foregoing provisions be construed so as to result in any reduction in Base Rent. All Base Rent and any recurring monthly charges shall be paid without setoff or deduction in equal monthly installments in advance on or before the first day of each calendar month, and proportionately (on a per diem basis) at the rate then in effect with respect to any calendar month in which the term of this Lease may begin or end.

Appears in 1 contract

Samples: Office Lease Agreement (Oxigene Inc)

Option to Extend. ~~Tenant~~ Subject to credit approval and provided that Lessee has not been in default hereunder, Lessee shall have ~~one option~~ the right to extend the ~~Term~~ termination date of this Lease ~~(the “Extension Option”) for one additional period~~ to August 30, 2020. This option to extend, however, shall be null and void if Lessee has been given any notice of ~~7 years (the “Extension Term”) on the terms and conditions of~~ default under this ~~Section 3.2~~Lease. The ~~Extension Term shall commence~~defaults referred to herein include any and all defaults under this Lease, ~~if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise~~ whether such defaults concern the ~~Extension Option by delivering written notice (a “Notice to Extend”) of its exercise~~ monetary obligations of the ~~Extension Option to Landlord not later than April 1, 2017. 3.2.1~~ Lessee or non-monetary obligations of the Lessee. The ~~Net Rent payable for each month during~~ terms of the ~~Extension Term~~ extended lease shall be the ~~fair~~ same as this Lease, except that (i) rent shall be 100% of the then current market ~~rental~~ rate for comparably improved space in the subject building as determined by Lessor in its sole and absolute discretion and (ii) security deposit shall be an amount that bears the ~~“Prevailing Rental Rate”)~~ same relationship to the new rent that the initial deposit did to the initial rent. To exercise this option, Lessee must advise Lessor of its desire to extend, in writing, on or before February 28, 2017. Dated 15-July 2014 Lessee Lessor By /s/ Xxxx Xxxxxx By /s/ Xxxx X. Xxxxxx Rules and Regulations 1. The sidewalks, halls, exits, entrances and stairways shall not be obstructed or used for any purpose other than for ingress and egress. The halls, exits, entrances, stairways and roof are not for the use of the general public and Lessor shall in all cases retain the right to control and prevent access thereto by all persons whose presence, in the judgment of Lessor, shall be prejudicial to the safety, character, reputation and interests of the building. Bicycles shall not be brought into any interior space or common area of the premises and shall be parked, stored or locked only at the ~~commencement~~ bicycle racks provided on the north side of the ~~Extension Term~~premises. No vehicles of any kind, whether motorized or nonmotorized, shall be parked or stationed on or so as to obstruct any interior or exterior walkway, stairway, path, landscaped area, courtyard, foyer, lobby or any other place in or around the premises except for ~~extensions~~ marked and designated parking spaces or bicycle racks. At no time shall any common area of the premises including, without limitation, sidewalks, halls, exits, entrances, stairways, lobbies, foyers, courtyards, parking areas, lawns or landscaped areas, be used as waiting or assembly areas for employees, invitees, contractors, suppliers or customers of any tenant (collectively “employees and invitees”). All tenants shall take all steps necessary to insure that all employees and invitees (including any adults or children accompanying such employees or invitees) (i) use the building entrance nearest their front door and (ii) wait and assemble only in internal lobbies or waiting rooms not visible from the common areas of the premises and located within the demised space of ~~equivalent quality~~the tenant in question. At no time shall any tenant permit any employee or invitee to sit, ~~size~~wait, ~~utility,~~ play on or otherwise utilize any common area of the premises except for purposes of ingress and ~~location~~ egress to the enclosed and demised tenant space. 2. Lessee shall specify that all deliveries be made at the rear of the building only. Under no circumstances are deliveries to be made or received at or through the front of the building. There shall not be used in the ~~Mendota Heights area~~building any hand trucks except those equipped with rubber tires and side guards. In no event shall hand trucks be used on or about the front stairs or lobby of the building. 3. Cars are to park in properly marked spaces only. Under no circumstances are cars to CO back in, ~~talking~~ (ii) park in spaces reserved for other tenants, (iii) park in driveways, (iv) park in front of entrances to the building, (v) park in unmarked areas or (vi) park in loading zones except while loading or unloading. Under no circumstances are cars to park overnight, on Saturdays, Sundays or legal holidays without Lessor’s prior written consent. All motorcycles, mopeds and bicycles are to park only in the area designated for them. Lessor shall have the right to cause improperly parked vehicles to be towed at the owner’s expense. In addition, Lessee shall pay to Lessor a charge of $100.00 per day for each parking violation of Lessee, its agents, employees, invitees, contractors, suppliers or customers. 4. Lessee shall not (i) permit or suffer the premises to be occupied or used in a manner offensive or objectionable to Lessor or other occupants of the building, (ii) use the premises for manufacturing, maintenance, repair or for the storage of merchandise except as such storage may be incidental to the use of the premises for general office purposes or (iii) use the premises for cooking, lodging, sleeping, smoking or any illegal purpose. 5. Lessee shall not use or keep in the premises any hazardous, toxic, flammable, explosive or noxious material, food, animal, fish or bird. 6. Before leaving each day, Lessee shall see that (i) all drapes are closed, (ii) all water, gas and electricity in the premises is shut off and (iii) the doors of the premises and building are securely locked. 7. Lessee shall not xxxx, drive nails, screw or drill into ~~account~~ floors, walls, doors, woodwork, plaster or ceilings, or in any way deface the ~~terms~~ premises or any part thereof. 8. No boring or cutting for wires or equipment will be allowed without Lessor’s prior written consent. 9. No unusual furniture, freight, packages, supplies, equipment or merchandise of any kind shall be brought into the building without Lessor’s prior written consent and all moving of the same into or out of the building shall be done at such a time and in such manner as Lessor shall designate. 10. Lessee shall not overload the floor of the premises. Lessor shall have the right to prescribe the weight, size and position of all heavy objects brought into the building and also the times and manner of moving the same in and out of the building. Lessor may require Lessee to pay for any engineering and construction work it deems appropriate to strengthen floors. Lessor will not be responsible for loss of or damage to any such property from any cause and all damage done to the building by moving or maintaining such property shall be repaired at the expense of Lessee. 11. Lessee shall (i) use protective pads at all desks, coffee machines and copy machines, (ii) keep the entrance door closed and (Hi) maintain the premises in a clean and orderly manner at all times. 12. No sign, placard, picture, advertisement, name or notice shall be inscribed, displayed, printed or affixed to any part of the outside or inside of the building or the premises without Lessor’s prior written consent and Lessor shall have the right to remove any such item without notice to and at the expense of Lessee. 13. Lessor will furnish Lessee 2 10 keys to Lessee’s entry door. Lessor shall make a reasonable charge for any additional keys. Lessee shall not have any such keys copied. Upon the expiration or earlier termination of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord Lessee shall deliver to ~~Tenant written notice (~~Lessor all keys to doors in the ~~“PRR Notice”) advising Tenant of Landlord’s determination~~ building. Lessee shall not alter any lock or install any new or additional locks or any bolts on any door of the ~~Prevailing Rental Rate~~premises without Lessor’s prior written consent. 14. ~~Unless Tenant delivers~~ The bathrooms, urinals and washbowls shall be used only for the purpose for which they were constructed and no foreign substance of any kind shall be thrown or disposed of therein. 16. No vending machine of any kind shall be installed, maintained or operated in the premises without Lessor’s prior written consent. 17. On Saturdays, Sundays, legal holidays and other days between the hours of 5:00 p.m. and 9:00 a.m. the following day, access to ~~Landlord~~the building or to the premises may be refused unless the person seeking access is known to the person or employee of the building in charge and has a pass or is properly identified. The Lessor shall in no case be liable for damages for any error with regard to the admission of or exclusion from the building of any person. In case of invasion, ~~within 30 days after receiving~~ riot, public excitement or other commotion, Lessor reserves the ~~PRR Notice~~right to prevent access to the building for the safety of the building and its tenants. 18. Lessee shall not disturb, solicit or canvass any other tenants of the building and shall cooperate to prevent same. 19. Lessee shall install and maintain, at Lessee’s sole cost and expense, fire extinguishers next to any duplicating machine or similar heat producing equipment. 20. If Lessee wishes to maintain a coffee machine or like device in the premises, a ~~written acceptance of Landlord’s determination of~~ timer must be connected to the ~~Prevailing Rental Rate~~outlet into which said machine is connected to prevent same from being left on. 21. No air conditioner, ~~the Prevailing Rental Rate~~ power strip, heater or similar appliance shall be ~~determined in accordance with Section 3.2.2 below~~used without Lessor’s prior written consent. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Standard Form Office Lease (ZS Pharma, Inc.)

Option to Extend. ~~Tenant shall have~~ Lessor hereby grants to Lessee the option (the "Option") to extend the term of this Lease for one (1) additional five (5) year period (the "Option Term"), commencing when the Original Term expires upon each and all of the following terms and conditions: (a) Lessee gives to Lessor, and Lessor actually receives on a date which is prior to the date that the Option Term would commence (if exercised) by at least nine (9) months, but no more than twelve (12) months, a written notice of the exercise of the option to extend this Lease for the ~~Term~~ Option Term. If the notification of the exercise of the option is not so given and received, the option shall automatically expire; (b) All of the provisions of Paragraph 39 of this Lease are conditions of this Option; (~~the “Extension Option”~~c) ~~for one additional period~~ All of ~~7 years (the “Extension Term”) on~~ the terms and conditions of this ~~Section 3.2. The Extension Term~~ Lease shall ~~commence~~apply, ~~if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise~~ except that the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term monthly rent shall be increased to the fair market rental ~~rate (the “Prevailing Rental Rate”)~~ value for similar buildings in Westlake village at the ~~commencement~~ time the Option Term commences. The fair market rental value for the first year of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate Option Term shall be determined in accordance with ~~Section 3.2.2 below.~~the following procedures: 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) ~~advising~~ Within fifteen (15) days of receipt by Landlord ~~that Tenant disagrees with Landlord’s determination~~ of Tenant's written exercise of the ~~Prevailing Rental Rate~~ above-described (respective) option to extend the term of the Lease, Landlord shall advise Tenant in writing of Landlord's opinion of the ~~PRR Notice, and~~ fair market rental value of the Premises for such option Term (sometimes also referred to herein as the "Fair Market value"). (ii) ~~proposing a specific alternative Prevailing Rental Rate~~If the proposed Fair Market Value is acceptable to Tenant, then Tenant shall so notify Landlord in writing within fifteen (15) days of receipt by Tenant of Landlord's notice of the proposed Fair Market Value. ~~If Landlord and Tenant fail~~Tenant's failure to so notify Landlord, ~~despite good-faith negotiations~~in writing, ~~to agree on the Prevailing Rental Rate~~ on or before the ~~date~~ expiration of such time period shall be deemed a waiver of its right to so challenge Landlord's determination of Fair Market Value. (iii) In the ~~“Outside Date”~~event Tenant challenges Landlord's opinion of the Fair Market Value of the Premises, Tenant shall notify Landlord thereof in writing within fifteen (15) ~~that is 30~~ days ~~after~~ of receipt by Tenant of Landlord's notice of the proposed Fair Market Value, and the Fair Market Value of the Premises shall be determined by appraisal in accordance with the provisions hereof. Within thirty (30) days following Tenant's notice to Landlord ~~receives the PRR Objection Notice~~thereof, both Landlord and Tenant ~~each~~ shall appoint a reputable licensed real estate broker and shall give written notice ~~to the other~~ of the name and address of ~~an arbitrator designated~~ such broker to the other party to this Lease. The failure by either party to timely appoint a broker and notify the other party thereof as provided in the immediately preceding sentence shall be deemed a waiver by the failing party ~~giving~~ of the right to have the Fair Market Value determined by more than one broker. The two brokers thus appointed shall, within ten (10) days after such ~~notice. If either party fails to give~~ appointment, themselves appoint a third broker and serve written notice of ~~such designation~~ the broker so appointed upon each of the parties. All brokers appointed hereunder must have at least five (5) years experience in leasing retail and commercial properties within ~~10 business~~ Westlake Village and be qualified by education and experience to appraise properties. The broker(s) so appointed shall meet at the earliest time practicable, but in no event more than ten (10) days after the ~~Outside Date~~appointment of all of the required broker(s), for the purpose of determining the fair market rental value of the Premises. The decision of the majority of said broker(s) shall constitute the vote of the broker(s) and shall be binding on both of the parties hereto. In the event two of the brokers do not agree on the fair market rental value of the Premises, the ~~other party~~ average of the two closest appraisals of the fair market rental value of the Premises shall ~~provide an additional notice~~ be the Fair Market Value of the Premises for purposes of this Paragraph 3.5. The brokers shall, to ~~such party requiring such party’s appointment~~ the extent possible, base their determination of ~~an arbitrator within 10 business days after receipt~~ Fair Market Value upon the then current fair market rental value of ~~such second notice~~comparable buildings of similar size and improvements then, available for lease in Westlake Village. ~~If either party fails~~ Tenant and Landlord shall each pay the cost and expense of its selected broker, with the cost of the third broker to ~~give notice~~ be borne equally between Landlord and Tenant. During the period of ~~such designation within such second 10 business day period~~time the parties are determining the Fair Market Value, Tenant shall continue to pay Landlord as a credit against rent due the monthly Base Rent payable the preceding Lease Year. The brokers' determination of the Fair Market Value shall be utilized as the basis for determining the monthly Base Rent for the first ~~arbitrator chosen shall make~~ year of the Option Term. (iv) if the Fair Market Value for the Premises as determined herein is greater than the monthly Base Rent paid by Tenant during the period of time following the end of the last Lease Year of the Original Term of the Lease, but before the Fair Market Value is determined, then Tenant shall, within thirty (30) days following the determination of the ~~Prevailing Rental Rate alone. If two arbitrators have been designated~~Fair Market Value, ~~both arbitrators shall~~pay to Landlord the amount of underpaid sums during said period. (v) Notwithstanding any terms herein to the contrary, ~~within 10 business days following~~ in no event shall the ~~designation~~ monthly Base Rent for the first year of the Option Term be less than monthly Base Rent payable during the immediately preceding Lease Year. (d) For the second ~~arbitrator, make their determination~~ Lease Year of the ~~Prevailing Rental Rate in writing~~ Option Term and ~~give notice to~~ each ~~other and to Landlord and Tenant~~Lease Year thereafter, the monthly Base Rent shall be increased by one hundred three percent (103%) of the monthly Base Rent payable the preceding Lease Year." 7. ~~The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as~~ Paragraph 4.3 is hereby added to the ~~determination of the Prevailing Rental Rate. If the two arbitrators agree~~ Lease: Commencing on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement first anniversary date of the ~~Extension Term~~Commencement Date and continuing on the anniversary date of each twelve month period ("Lease Year") thereafter, ~~Landlord and Tenant~~ the monthly Base Rent shall ~~execute an amendment~~ be increased to ~~this Lease extending~~ the ~~Term and adjusting~~ following amounts First (April 15, 2002) $ 73,130.00 Second (April 15, 2003) 75,323.90 Third (April 15, 2004) 77,583.62 Fourth (April 15, 2005) 79,911.12 Fifth (April 15, 2006) 82,308.46 Sixth (April 15, 2007) 84,777.71 Seventh (April 15, 2008) 87,321.04 (a) is supplemented as follows: "Notwithstanding the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current conditionforegoing, ~~and Landlord~~ Lessee shall have no obligation to ~~provide~~ remodel or install new improvements which were not in existence as of the Commencement Date of this Lease." 9. The second sentence of Paragraph 7.3(a) is amended to ~~Tenant~~ read as follows: "The term 'Trade Fixtures' shall include Lessee's machinery and equipment, including telephone and computer equipment (excepting cabling and wiring), that can be removed without doing material damage to the Premises." 10. Paragraph 7.3(b) is supplemented as follows: "Subject to Lessee's compliance with the requirements of Paragraph 7.3(b) and (c), Lessor consents to Lessee's installation, at Lessee's sole cost, of a satellite dish, antennae, microwave relay, fiber optics cable or other such similar equipment for Lessee's own exclusive use on the roof or under the Common Area of the Premises. Lessee shall be responsible, at its sole cost and expense, for the repair and maintenance of any ~~allowances (e.g.~~such items installed by Lessee and for any damage to the roof, ~~moving allowance, construction allowance~~building or Common Area arising from the installation and maintenance of such items, and shall remove at the ~~like~~expiration or termination of the Lease, at Lessee's sole cost and expense, any items installed by Lessee (provided at Lessor's election, such fiber optics cable shall remain with the Premises) and shall restore the Premises to its original condition as of the Commencement Date of this Lease. Lessee shall be required to submit a copy of any drawings or ~~other tenant inducements~~ Specifications ('Plans') in connection with ~~Tenant’s exercise~~ any structural improvements or alterations made by Lessee. 11. The first sentence of Section 7.4(b) is supplemented by the ~~Extension Option.~~following additional phrase:

Appears in 1 contract

Samples: Lease Addendum (Guitar Center Inc)

Option to Extend. So long as the Lease is in full force and effect and, at the time of exercise of the option to renew, Tenant is not in default under the Lease beyond any applicable notice and cure period provided herein, Tenant shall have ~~one option~~ two (2) successive options to extend the ~~Term~~ Lease for a term of ~~this Lease~~ five (5) years each (each, an "Option"), on the ~~“Extension Option”) for one additional period of 7 years (~~same terms and conditions set forth in the ~~“Extension Term”) on~~ Lease, except as modified by the terms and conditions ~~of this Section 3.2. The Extension Term shall commence~~set forth below: i) If Tenant elects to exercise an Option, ~~if at all, on April 1, 2018, and end on March 31, 2025.~~ Tenant ~~may exercise the Extension Option by delivering~~ must provide Landlord with written notice ~~(a “Notice to Extend”)~~ of its election to exercise such Option no earlier than the date which is eighteen (18) months prior to the expiration of the ~~Extension Option to Landlord~~ then current term and not later than ~~April 1~~the date which is six (6) months prior to the expiration of the then current term of the Lease. If Tenant fails to timely provide such notice, ~~2017~~Tenant shall have no further right to exercise any Option or to extend the term of the Lease. Time is of the essence for this provision. ~~3.2.1~~ ii) The ~~Net~~ Base Rent ~~payable~~ for each ~~month during the Extension Term~~ Option term shall be the ~~fair market rental rate (~~Fair Market Rental Rate of the ~~“Prevailing~~ Premises in effect at the expiration of the then current term of the Lease. "Fair Market Rental Rate”) " shall be the then going rate for comparable space at the ~~commencement~~ Xxxxxx Airport Center and other comparable buildings in the Airport sub-market. The determination of the ~~Extension Term, for extensions of space of equivalent quality, size, utility,~~ Fair Market Rental Rate shall take into consideration any concessions and ~~location~~ inducement then being offered by landlords in the ~~Mendota Heights~~ submarket area, ~~talking into account~~ as well as the ~~terms~~ quality of ~~this~~ the buildings, the extent of Tenant's liability under the Lease, abatement provisions reflecting free rent and/or no rent during the period of construction or subsequent to the commencement date as to the space in question, brokerage commissions, length of the ~~Extension Term~~lease term, size and location of premises being leased, building standard work letter and/or tenant improvement allowances, if any, and ~~all~~ other ~~relevant factors, but assuming that~~ generally applicable conditions of tenancy. There shall be no ~~improvements Tenant has made to~~ minimum rent in the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of ~~the Prevailing~~ Fair Market Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (iiii) ~~advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate.~~ If Landlord and Tenant ~~fail, despite good-faith negotiations, to~~ do not agree on the ~~Prevailing~~ Fair Market Rental Rate ~~on or before~~ within thirty (30) days of Tenant's delivery of notice of its intent to exercise an Option, then Landlord and Tenant shall submit the ~~date~~ matter to arbitration as set forth below. (~~the “Outside Date”~~a) ~~that is 30~~ Within fifteen (15) days after the Landlord ~~receives the PRR Objection Notice~~and Tenant's failure to agree as set forth above, Landlord and Tenant shall each appoint an independent appraiser who shall ~~give notice~~ by profession be a real estate broker who shall have been active over the five (5) year period ending on the date of such appointment in the leasing of commercial property in the Las Vegas area. Landlord and Tenant shall each submit to the ~~other~~ appraisers their respective Fair Market Rental Rate determinations (and back-up information regarding their determination), and the determination of the ~~name and address~~ appraisers shall be limited solely to the issue of ~~an arbitrator designated~~ whether Landlord's or Tenant's submitted Fair Market Rental Rate for the Premises is the closest to the actual Fair Market Rental Rate for the Premises, as determined by the ~~party giving~~ appraisers. Such arbitrators may (or at the request of either party, shall) hold such ~~notice~~hearings and require such briefs as the arbitrators, in their discretion, determine to be necessary. The arbitrators shall, within fifteen (15) days of their appointment, agree upon and appoint a third appraiser who shall have the same qualifications required of the initial two appraisers. If ~~either party fails~~ the two appraisers fail to ~~give notice~~ agree on a third appraiser, both appraisers shall be dismissed and the matter shall be submitted to arbitration under the Judicial Arbitration and Mediation Service ("JAMS"), but based on the same procedures set forth herein, however, in the event that the Property association recorded covenants and restrictions requires such matter to be determined in another manner, then the parties agree to do so. (b) The three appraisers shall reach a decision within thirty (30) days of the appointment of the third appraiser and shall promptly notify Landlord and Tenant of such ~~designation~~ determination. The decision of the majority of the three appraisers shall be binding upon the parties. (c) If any party shall fail to appoint an appraiser within ~~10 business days after~~ the ~~Outside Date~~time period set forth above, the other party shall provide ~~an additional~~ written notice to the non-performing party regarding such failure, and in the event such non-performing party ~~requiring such party’s appointment~~ fails to appoint an appraiser within five (5) Business Days of ~~an arbitrator within 10 business days after~~ receipt of such ~~second~~ notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the ~~two arbitrators~~ appraiser appointed by one of them shall ~~promptly designate a third arbitrator. If~~ appoint another appraiser under the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions requirements of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2sub-~~year period) either Landlord or Tenant~~section iii. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Lease Agreement (Griffin Capital Essential Asset REIT II, Inc.)

Option to Extend. Provided that Tenant ~~shall have one option~~ is still occupying the Premises and is not then in default beyond any applicable cure period pursuant to the Lease, Tenant may elect to extend the ~~Term~~ term of ~~this~~ the Lease ~~(the “Extension Option”)~~ for one ~~additional~~ (1) five (5) year period ~~of 7 years~~ (the “Extension Term”), by giving Landlord notice of such election no later than twelve (12) on months prior to the ~~terms~~ Term Expiration Date. Any extension shall be upon the terms, covenants, and conditions of contained in this ~~Section 3.2. The Extension~~ Lease except that Tenant shall have no further right to extend the Lease Term ~~shall commence, if at all, on April 1, 2018,~~ and ~~end on March 31, 2025. Tenant may exercise~~ except that the ~~Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net~~ Base Rent ~~payable~~ for ~~each month during~~ the Extension Term shall be ~~the~~ at fair market rent for comparable space in comparable properties in the greater Lowell area and not less than the then current Base Rent. If Landlord and Tenant are unable to agree on the amount of such fair market rent by the date that is thirty (30) days after the date of Tenant’s election notice based on rental ~~rate~~ rates and terms for comparable space in the greater Lowell area, then Landlord shall promptly specify in writing the rent (the “~~Prevailing~~ Landlord’s Rental Rate”) at which Landlord is willing to lease the ~~commencement of~~ Premises for the Extension ~~Term, for extensions of space of equivalent quality, size, utility,~~ Term and ~~location~~ Tenant shall promptly specify in writing the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice rent (the “~~PRR Notice~~Tenant’s Rental Rate”) ~~advising~~ which Tenant ~~of Landlord’s determination~~ is willing to pay for the Premises for the Extension Term and the amount of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate fair market rent shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate established by appraisal in the ~~PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate~~following manner. If The Landlord and Tenant ~~fail, despite good-faith negotiations,~~ shall each appoint one appraiser and the two appraisers so appointed shall determine the fair market rent within thirty (30) days of Tenant’s election notice. If such appraisers are unable to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice amount of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation fair market rent within such ~~second 10 business~~ thirty- (30) day period, ~~the first arbitrator chosen~~ they shall ~~make the determination~~ appoint a third appraiser within ten (10) days of the ~~Prevailing Rental Rate alone~~expiration of such period, who shall be instructed to select, as between the rents chosen by the two appraisers, the rent that is closest to the third appraiser’s estimate of fair market rent. ~~If two arbitrators have been designated, both arbitrators shall, within 10 business days following~~ The fair market rent shall be the ~~designation of~~ amount so selected by the ~~second arbitrator, make their determination of~~ third appraiser and shall be conclusive on the ~~Prevailing Rental Rate in writing and give notice to each other and to~~ Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of its appraiser, and the ~~arbitrator it selects. The remaining~~ cost of the ~~arbitration~~ third appraiser shall be split ~~evenly~~ equally between parties; provided that if the ~~parties (~~rental rate as so determined is equal to or greater than the Landlord’s Rental Rate, then Tenant shall pay the entire cost of all appraisers and ~~each party~~ if such rate as so determined is equal to or less than Tenant’s Rental Rate, then Landlord shall ~~bear~~ pay the entire cost of all appraisers. Until such time as the fair market rent is so determined, Tenant shall continue to pay Base Rent at the rate of ~~its own costs~~ $205,530.00 per annum in ~~connection~~ monthly installments of $17,127.50 with ~~such arbitration)~~appropriate adjustments once the fair market rent is determined. The ~~determination of the Prevailing Rental Rate in accordance with this Section 3.2.2~~ third appraiser’s estimate shall be ~~final~~ based on the data supplied and ~~binding in fixing~~ used by the ~~Prevailing Rental Rate. The arbitrators shall not have~~ original two appraisers and the ~~power to add to, modify, or change any of~~ findings made by the ~~provisions of this Lease. All arbitrators~~ third appraiser shall be ~~real estate brokers with at least 5 years of continuous experience~~ set forth in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenantwriting. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Lease (Metabolix, Inc.)

Option to Extend. Subject to paragraphs c. and d. below, Tenant ~~shall have one~~ may at its option to extend the Term of this Lease for the entire Premises for two (~~the “Extension Option”~~2) ~~for one additional period~~ periods of 7 five (5) years each (~~the~~ each, an “Extension Term”) on upon the same terms contained in this Lease except for the amount of Base Rent payable during the Extension Term as set forth below, and expressly excluding (i) the provisions of this section, (ii) any provision providing for abatement of Base Rent or parking charges, (iii) any provisions for tenant improvement allowances or relocation allowances, (iv) the provisions of the Tenant Improvements, and (v) any terms, covenants and conditions that are expressly or by their nature inapplicable to the Extension Term, all of ~~this Section 3.2. The Extension Term~~ which shall ~~commence, if at all, on April 1, 2018,~~ be deemed void and ~~end on March 31, 2025~~of no further force or effect. Tenant ~~may exercise the Extension~~ shall have no additional extension options. Tenant’s Option ~~by delivering written notice (~~to Extend shall be transferable only in connection with a ~~“Notice to Extend”) of its exercise~~ full assignment of the ~~Extension Option~~ Lease in its entirety to ~~Landlord not later than April 1, 2017~~a Permitted Assignee (as defined in the Lease) in accordance with Section 14 of the Lease. ~~3.2.1~~ a. The ~~Net~~ Annual Base Rent ~~payable for each month~~ during the Extension Term shall be the then prevailing fair market ~~rental~~ rate (the “~~Prevailing Rental~~ Market Rate”) at for a comparable term commencing on the ~~commencement~~ first day of the Extension Term, . The Market Rate shall be determined taking into consideration the rents being charged at the time such determination is to be made for ~~extensions of~~ comparable office space ~~of equivalent quality, size, utility, and location~~ in the ~~Mendota Heights area, talking into account the~~ surrounding Phoenix area for leases with terms of and provisions substantially similar to those contained in this ~~Lease, the length of the Extension Term,~~ Lease and ~~all other relevant factors, but assuming that no improvements Tenant has~~ discounts to Annual Base Rent shall be made to ~~the Premises at Tenant’s sole expense (in other words~~take into consideration an “as-is” extension, without ~~reimbursement through~~ Landlord providing any ~~allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend~~tenant improvement allowance. b. To exercise its option, ~~Landlord shall~~ Tenant must deliver ~~to Tenant written~~ a binding notice (the “~~PRR~~ Tenant’s Notice”) ~~advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers~~ to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date ~~(the “Outside Date”)~~ that is ~~30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice~~ six (6) months prior to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, but no earlier than the date that is twelve (12) months prior to the commencement date of the Extension Term. Thereafter, Landlord and Tenant shall ~~execute~~ commence negotiations to agree upon the Market Rate within thirty (30) days after Landlord’s receipt of Tenant’s Notice. Within thirty (30) days after Landlord and Tenant agree upon the Market Rate, Landlord shall submit an amendment to ~~this~~ Tenant to reflect the terms of the Extension Term. If Tenant fails to give Tenant’s Notice timely, Tenant will be deemed to have waived its option to extend. If Tenant fails to execute the amendment delivered by Landlord within thirty (30) days of its receipt thereof, without a good faith reason for doing so, the Lease ~~extending~~ shall expire on the ~~Term~~ Expiration Date. c. If the parties are unable to come to an agreement as to the Market Rate within the thirty (30) day period referenced in Paragraph 2 above, then the matter shall be settled by arbitration in accordance with subparagraphs (i) and ~~adjusting~~ (ii) below: (i) Within seven (7) days after expiration of the ~~Net Rent~~ thirty (30) day period referenced in Paragraph 3 above, the parties shall select as an arbitrator a licensed real estate broker with at least five (5) years of experience in commercial real estate matters in the metropolitan area in which the Project is located (a “Qualified Broker”). If the parties cannot agree on a Qualified Broker, then within a second period of seven (7) days, each shall select a Qualified Broker and within ten (10) days thereafter the two (2) appointed Qualified Broker shall select a third Qualified Broker. The third Qualified Broker shall then act as the sole arbitrator. If one party shall fail to select a Qualified Broker within the second seven (7) day period, then the Qualified Broker chosen by the other party shall be the ~~Prevailing Rental Rate. Tenant~~ sole arbitrator. (ii) Within twenty-one (21) days after submission of the matter to the arbitrator, the arbitrator shall ~~have no further extension or renewal option other than~~ determine the ~~Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises~~ Market Rate for the Extension Term by choosing whichever of the estimates submitted by Landlord and Tenant the arbitrator judges to be more accurate. The arbitrator shall notify Landlord and Tenant of its decision, which shall be final and binding. If the arbitrator believes that expert advice would materially assist him, the arbitrator may retain one or more qualified persons to provide expert advice. The fees of the arbitrator and the expenses of the arbitration proceeding, including the fees of any expert witnesses retained by the arbitrator, shall be split evenly between the parties, regardless of whose estimate is selected. Each party shall also pay the fees of its respective counsel and the fees of any witness called by that party. d. Tenant’s option to extend this Lease is subject to the conditions that: (i) on the date that Tenant delivers Tenant’s Notice exercising its option to extend, Tenant is not in ~~its then-current condition~~material uncured financial default under this Lease, and ~~Landlord shall have no obligation~~ has not been in material uncured financial default under this Lease during the twelve (12) months prior to ~~provide to~~ the date that Tenant ~~any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with~~ delivers Tenant’s ~~exercise of the Extension Option~~Notice.

Appears in 1 contract

Samples: Lease Agreement (HS Spinco, Inc.)

Option to Extend. (a) Subject to the provisions of section 60 below, Landlord hereby grants to Tenant ~~shall have one~~ the option to extend ("Option to Extend") the ~~Term~~ term of this Lease ~~(the “Extension Option”)~~ for one ~~additional~~ (1) period of 7 five (5) years (~~the “Extension~~ "Option Term~~”) on the terms and conditions of this Section 3.2~~*). The ~~Extension Term shall commence~~Option to Extend must be exercised, if at all, ~~on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option~~ by ~~delivering~~ written notice (~~a “Notice to Extend”) of its exercise of the Extension~~ "Option to Notice" received by Landlord not later than ~~April 1~~one hundred eighty (180) days and not earlier than two hundred seventy (270) days prior to the expiration of the initial term of this Lease. Provided that Tenant has properly exercised an Option to Extend, ~~2017~~the term of this Lease shall be extended for five (5) years and all of the terms, covenants and conditions of the Lease shall remain unmodified and in full force and effect, except that the Annual Basic Rental shall be modified as set forth in subsection (b) below. ~~3.2.1~~ (b) The ~~Net Rent~~ Annual Basic Rental payable for ~~each month during~~ the ~~Extension~~ Option Term shall be an amount equal to the fair market rental ~~rate~~ value of the Premises, as determined herein, but shall in no event be less than the Annual Basic Rental payable for the last month of the basic term of the Lease. Landlord shall determine the fair market rental value of the Premises by using its best good faith judgment. Such fair market rental value shall be determined by Landlord in accordance with the projected (~~the “Prevailing Rental Rate”) at~~ to the commencement of ~~the Extension Term,~~ such Option to Expand) prevailing market rentals for ~~extensions of~~ similar space ~~of equivalent quality, size, utility, and location~~ in Class "A" commercial office buildings in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (Orange County Airport marketplace. in ~~other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend~~determining such fair market rental value, Landlord shall specifically exclude any consideration of Tenant's occupancy or use of the Premises in place as of the end of the term. Landlord shall use its best efforts to deliver to Tenant written notice of such fair market rental value and the new Annual Basic Rental applicable to such Option to Expand within thirty (~~the “PRR Notice”~~30) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord~~’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows~~'s receipt of an Option-Notice. Tenant shall ~~submit~~ have fifteen (15) days ("Tenant's Review Period") after receipt of Landlord's notice of such new Annual Basic Rental to reasonably object thereto in writing. In the event Tenant objects to such new Annual Basic Rental submitted by Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant shall attempt in good faith to agree upon such new Annual Basic Rental within fifteen (15) days following Tenant's Review Period (the *Outside Agreement Date"), then each party's determination shall ~~give notice~~ be submitted to ~~the other~~ arbitration in accordance with Paragraph (C) hereof. Failure of Tenant to so object in writing within such period shall conclusively be deemed its approval of the ~~name~~ new Annual Basic Rental determined by Landlord as set forth above. (i) Landlord and ~~address of an~~ Tenant shall each appoint one arbitrator ~~designated~~ who shall by profession be a real estate appraiser who shall have been active over the ~~party giving such notice. If either party fails to give notice~~ five (5) year period ending on the date of such ~~designation~~ appointment in the appraisal of commercial properties in the Orange County Airport Marketplace. Each such arbitrator shall be appointed within ~~10 business~~ thirty (30) days after the Outside Agreement Date, . (ii) The two arbitrators so appointed shall within fifteen (15) days of the ~~other party shall provide an additional notice to such party requiring such party’s~~ date of the appointment of an the Last appointed arbitrator ~~within 10 business days after receipt~~ agree upon and appoint a third arbitrator who shall be qualified under the same criteria set forth hereinabove for qualification of ~~such second notice~~the initial two arbitrators. (iii) Landlord and Tenant shall each submit a figure for the new Annual Basic Rental for the Premises to the appointed arbitration. ~~If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the~~ The determination of the ~~Prevailing~~ arbitrators shall be limited solely to the issue of whether Landlord's or Tenant's submitted new Annual Basic Rental ~~Rate alone. If two~~ for the Premises is the closest to the actual new Annual Basic Rental for the Premises as determined by the arbitrators, taking into account the requirements of Paragraph (b) and this Paragraph (C) regarding same. (iv) The three arbitrators ~~have been designated, both arbitrators shall,~~ shall within ~~10 business~~ thirty (30) days ~~following the designation~~ of the ~~second arbitrator, make their determination~~ appointment of the ~~Prevailing Rental Rate in writing~~ third arbitrator reach a decision as to whether the parties shall use Landlord's or Tenant's submitted new Annual Basic Rental, and ~~give notice to each other and to~~ shall notify Landlord and ~~Tenant~~Tenant thereof. Such decision shall be based upon the projected prevailing fair market rental for similar space in Class "A" commercial office buildings in the Orange County Airport Marketplace. (v) The ~~two~~ decision of the majority of the three arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be ~~final and~~ binding upon Landlord and Tenant. . (vi) If either Landlord or Tenant fails to appoint an arbitrator within the ~~two arbitrators fail to agree on~~ time period in Paragraph (c)(I) hereinabove, the ~~Prevailing Rental Rate~~ arbitrator appointed by ~~the end~~ one of ~~the 10-business day period~~them shall reach a decision, ~~then the two arbitrators~~ notify Landlord and Tenant thereof, and such arbitrator's decision shall ~~promptly designate a third arbitrator.~~ be binding upon Landlord and Tenant. (vii) If the two arbitrators fail to agree upon ~~the designation of~~ and appoint a third ~~arbitrator within 10 business days~~arbitrator, ~~then either party may apply~~ both arbitrators shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration under the provisions of the American Arbitration ~~Association~~ Association. (viii) In the event that the new Annual Basic Rental is not established prior to end of the initial term of the Lease or ~~any successor having jurisdiction for~~ the ~~designation~~ Option Term then in effect, the Annual Basic Rental immediately payable at the commencement of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator Option Tenn shall be ~~binding upon Landlord and Tenant~~the Annual Basic Rental payable in the immediately preceding month. ~~The third arbitrator shall have no right to propose a middle ground or any modification of either of~~ Notwithstanding the ~~determinations proposed by~~ above, once the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate fair market rental is determined in accordance with this ~~Section 3.2.2~~ section, the Tenant shall be ~~final and binding in fixing~~ required to pay to Landlord, with the ~~Prevailing Rental Rate. The arbitrators shall not have~~ next payment of rental due hereunder, the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option aggregate amount by which such fair market rental for such month and all ~~of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon~~ prior months during the ~~occurrence of any of~~ Option Term exceeds the ~~following: (1) either this Lease or Tenant’s right~~ aggregate Annual Basic Rental paid to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord ~~and Tenant shall execute an amendment~~ for such months pursuant to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Optionsubsection.

Appears in 1 contract

Samples: Consent to Sublease (2themart Com Inc)

Option to Extend. Landlord grants to Tenant ~~shall have one~~ an option (the “Option”) to extend the Term ~~of this Lease~~ for five (~~the “Extension Option”~~5) ~~for one~~ additional ~~period of 7~~ years (the “~~Extension Term~~Extension”) on the same terms and conditions of as set forth in this ~~Section 3.2. The Extension Term~~ Lease, except that the Base Monthly Rent shall ~~commence, if at all,~~ be adjusted on ~~April 1, 2018, and end on March 31, 2025. Tenant may exercise~~ the ~~Extension Option by delivering written notice (a “Notice to Extend”) of its exercise~~ first day of the Extension ~~Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate~~ (the “~~Prevailing Rental Rate~~Adjustment Date”) at to the ~~commencement~~ “fair rental value” of the ~~Extension Term~~Premises on the Adjustment Date as follows: 32.1 At least one hundred eighty (180) days before the Adjustment Date, ~~for extensions of space of equivalent quality~~Landlord and Tenant shall meet in an effort to negotiate, ~~size, utility, and location~~ in ~~the Mendota Heights area, talking into account the terms of this Lease~~good faith, the ~~length~~ fair rental value of the ~~Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the~~ Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination as of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental RateAdjustment Date. If Landlord and Tenant ~~fail, despite good-faith negotiations, to agree on~~ have not agreed upon the ~~Prevailing Rental Rate on or~~ fair rental value of the Premises at least one hundred (100) days before the ~~date (the “Outside~~ Adjustment Date~~”) that is 30 days after Landlord receives the PRR Objection Notice~~, Landlord and Tenant shall attempt to agree in good faith upon a single appraiser not later than seventy-five (75) days before the Adjustment Date, If Landlord and Tenant are unable to agree upon a single appraiser within this time period, then Landlord and Tenant shall each appoint one (1) appraiser not later than sixty-five (65) days before the Adjustment Date. Within ten (10) days thereafter, the two (2) appointed appraisers shall ~~give notice to the other of the name and address of an arbitrator designated by the party giving such notice~~appoint a third appraiser. If either ~~party~~ Landlord or Tenant fails to ~~give notice of such designation~~ appoint its appraiser within ~~10 business days after~~ the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day prescribed time period, the ~~first arbitrator chosen~~ single appraiser appointed shall ~~make~~ determine the ~~determination~~ fair rental value of the ~~Prevailing Rental Rate alone~~Premises. If ~~two arbitrators have been designated,~~ both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators parties fail to ~~agree on~~ appoint appraisers within the ~~Prevailing Rental Rate by the end of the 10-business day period~~prescribed time periods, then the ~~two arbitrators~~ first appraiser thereafter selected by a party shall ~~promptly designate a third arbitrator. If~~ determine the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out fair rental value of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitratorsPremises. Each party shall bear the cost of its own appraiser, and the ~~arbitrator it selects. The remaining~~ parties shall share equally the cost of a single or third appraiser, if applicable. Each appraiser shall have at least ten (10) continuous years’ experience in the ~~arbitration~~ appraisal of Class A office buildings in Orange County, California and shall be ~~split evenly between~~ a member of one or more professional organizations such as MAI or an equivalent. 32.2 For purposes of such appraisal, “fair rental value” shall mean the ~~parties~~ price that a ready and willing tenant would pay, as of the Adjustment Date, as monthly rent to a ready and willing landlord of first class office business park space comparable to the Premises in Cypress if that property were exposed for lease on the open market for a reasonable period of time with a lease comparable to this Lease and with tenant improvements comparable to those in the Premises and taking into account visibility and frontage on major streets. If a single appraiser is chosen, then such appraisal shall determine the fair rental value of the Premises. Otherwise, the fair rental value of the Premises shall be the arithmetic average of the two (2) of the three (3) appraisals which are closest in amount, and ~~each party~~ the third appraisal shall ~~bear all of its own costs in connection with such arbitration)~~be disregarded. ~~The~~ In no event shall there be any rent concession or tenant improvement allowance for the Extension term. Landlord and Tenant shall instruct the appraiser(s) to complete their determination of the ~~Prevailing Rental Rate~~ fair rental value not later than thirty (30) days before the Adjustment Date. If the fair rental value is not determined before the Adjustment Date, then Tenant shall continue to pay to Landlord the monthly rent in ~~accordance with this Section 3.2.2 shall be final and binding in fixing~~ effect immediately prior to such Extension, until the ~~Prevailing Rental Rate~~fair rental value is determined. ~~The arbitrators shall not have~~ When the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession fair rental value of the Premises is ~~terminated; (2) Tenant fails to timely exercise the Extension Option~~determined, ~~time being~~ Landlord shall deliver notice of ~~the essence with respect~~ that amount to Tenant~~’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option~~, ~~then, on or before the commencement date of the Extension Term, Landlord~~ and Tenant shall ~~execute an amendment~~ pay to ~~this Lease extending~~ Landlord, within ten (10) days after receipt of such notice, the ~~Term and adjusting~~ difference between the ~~Net Rent~~ monthly rent actually paid by Tenant to ~~be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by~~ Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the ~~like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option~~new monthly rent determined under this Section 32.

Appears in 1 contract

Samples: Lease Agreement (iRhythm Technologies, Inc.)

Option to Extend. ~~Tenant~~ Provided that the Lessee is not then in default under the Lease after applicable notice and cure periods, and an Event of Default has not existed more than once during the Extended Term, Lessee shall have one (1) option to extend the ~~Term~~ term of this Lease for a period of fifteen (15) months commencing April 1, 2016 and terminating June 30, 2017 (the “~~Extension Option”) for one additional period of 7 years (the “Extension Term~~Option Period”) on all the same terms and conditions of ~~this Section 3.2. The Extension Term~~ the Lease excepting the Base Monthly Rent which shall ~~commence, if~~ be at ~~all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise~~ one hundred percent (100%) of the ~~Extension~~ then-current fair market rental value for the Premises as improved (“FMV”) (the “Option ~~by delivering written notice (a “Notice~~ to Extend”~~) of its exercise~~ ). In no event however, shall the Base Monthly Rent for the Option Period be less than that being paid for the month most immediately preceding the Option Period without the consent of the ~~Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be~~ Lessor. In establishing the fair market rental ~~rate~~ value for the Premises, the parties shall consider only direct leases for comparable R&D space in Mountain View occurring during the year most immediately preceding Lessee’s written notice of exercise of the Option to Extend. Considerations in establishing comparability of recently leased spaces shall include the date of the lease, age and quality of the building and interior improvements, parking ratio, relative proximity to the Premises, the duration of the term, any rental or other concessions granted, whether a broker’s commission or finder’s fee will be paid, responsibility for operating expenses, and the tenant improvement allowance, if any, required for an extended term. Lessee shall exercise its Option to Extend by giving written notice to Lessor not less than six (6) months nor more than nine (9) months prior to the Option Period. Lessor and Lessee shall negotiate FMV within thirty (30) days following Lessee’s written notice as set forth above. In the event Lessor and Lessee cannot agree upon FMV within the thirty-day period set forth above, then each party shall within five (5) days, select a licensed commercial real estate broker who is active in commercial and industrial rentals in Mountain View and the two brokers so appointed (the “~~Prevailing Rental Rate~~Parties’ Brokers”) ~~at the commencement~~ shall meet within twenty-one (21) days of ~~the Extension Term~~their appointment to make a determination of FMV, ~~for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking~~ taking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration)considerations set forth above. The determination of the ~~Prevailing Rental Rate in accordance with this Section 3.2.2~~ brokers as set forth herein shall be ~~final~~ binding upon the parties. If the two Parties’ Brokers so appointed cannot reach agreement within five (5) days of their initial meeting, then the two shall immediately thereafter appoint a third neutral and ~~binding in fixing~~ independent broker with the ~~Prevailing Rental Rate. The arbitrators shall not have~~ same qualifications (the ~~power to add to, modify, or change any~~ “Neutral Broker”) and within twenty-one (21) days of the ~~provisions~~ Neutral Broker’s appointment, all shall meet to make a determination of ~~this Lease~~FMV. ~~All arbitrators shall~~ If agreement cannot be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities marketreached, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any then each of the ~~following: (1) either this Lease or Tenant’s right~~ Parties’ Brokers shall submit to ~~possession~~ the Neutral Broker its written opinion of the ~~Premises~~ FMV and the Neutral Broker shall select the one of those two opinions that the Neutral Broker determines is ~~terminated; (2) Tenant fails~~ the closet to ~~timely exercise~~ the ~~Extension Option~~true FMV, ~~time being~~ and such figure shall become the Base Monthly Rent for the Option Period and be binding on both parties. Each party shall pay the fee of their respective Parties’ Broker and both parties shall share the cost of the ~~essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend~~Neutral Broker if necessary. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Lease (Mobile Iron, Inc.)

Option to Extend. Tenant shall have one (1) option to extend the ~~Term~~ term of this Lease for a three (3) year period (“Option Period”), with the Option Period commencing on the day after the last day of the initial term of this Lease and subject to the following terms and conditions: a. At the time the option is exercised, this Lease shall be in full force and effect, Tenant shall not be in default hereunder (following the expiration of all cure periods), and Tenant shall not have sublet the Premises, unless in a transaction for which Landlord’s consent is not required or as to a shared use sublet of a portion of the Premises; and b. The option must be exercised by notice given to Landlord not earlier than twelve (12) months and not later than nine (9) months prior to the expiration of the term of this Lease (“Exercise Period”); and c. In the ~~“Extension Option”)~~ event the option is timely and effectively exercised, the term shall be extended for ~~one additional~~ a period of ~~7 years~~ three (~~the “Extension Term”~~3) on years, upon all of the terms and conditions of ~~this Section 3.2. The Extension Term~~ the Lease; provided, however, that the Base Rent shall ~~commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise~~ be the ~~Extension Option by delivering written notice (a “Notice to Extend”) of its exercise~~ then fair market rental value of the ~~Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable~~ Premises and provided further that the base year for ~~each month during the Extension Term~~ calculation of Tenant’s Percentage Share of Operating Expenses and Property Taxes shall be amended to a base year consistent with the fair market rental ~~rate~~ value of the Premises, but in no event shall the amount payable by Tenant as Base Rent and Tenant’s Percentage Share of Operating Expenses and Property taxes be less than the sum of the average Base Rent for the term of this Lease and Tenant’s Percentage Share of Operating Expenses and Property Taxes in effect immediately prior to the Option Period, and there shall be no further options to extend. Fair market rental value may include periodic increases. d. Determination of the fair market rent during the Option Period shall be as follows: For the purposes hereof, the fair market rent of the Premises shall be product of (1) the annual amount per square foot that a willing, comparable tenant would pay and a willing, comparable landlord of a comparable building in the immediate area would accept at “~~Prevailing Rental Rate”~~arm’s length,” giving appropriate consideration to the credit of the Tenant, free rent and other tenant inducements then being offered for comparable space, length of lease term, size and location of premises being leased, tenant improvement allowances, if any, and other generally applicable terms and conditions of tenancy for comparable space, and (2) at the rentable area of the Premises. At Tenant’s request, within thirty (30) days of commencement of the Exercise Period, Landlord shall provide Tenant with the proposed fair market rent for the Premises. Tenant may dispute Landlord’s determination of fair market rent by notice given to Landlord within fifteen (15) days after Landlord’s determination is given to Tenant, and the parties shall then negotiate in good faith to resolve the dispute. If such dispute is not resolved by negotiation between the parties within thirty (30) days following Tenant’s notice of its dispute of Landlord’s determination, then fair market rent shall be determined by baseball-type arbitration before a single arbitrator in accordance with the commercial arbitration rules of the American Arbitration Association then in effect. (1) If Tenant does not timely dispute Landlord’s determination, then Landlord’s determination shall be deemed the fair market rent during the Option Period. If fair market rent has not been determined prior to the commencement of the ~~Extension Term~~Option Period, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall ~~deliver to Tenant written notice (the “PRR Notice”) advising Tenant of~~ pay Base Rent when due based upon Landlord’s determination of fair market rent, subject to retroactive adjustment between the ~~Prevailing Rental Rate. Unless Tenant delivers~~ parties if the determination by appraisal is different from Landlord’s determination. (2) When fair market rent is to ~~Landlord~~be determined by arbitration, within 30 ten (10) days after ~~receiving~~ the ~~PRR Notice, a written acceptance of Landlord’s determination~~ expiration of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice thirty (~~the “PRR Objection Notice”): (i~~30) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Noticeday negotiation period, Landlord and Tenant ~~each~~ shall ~~give notice~~ agree upon a mutually acceptable arbitrator to determine the ~~other~~ fair market rent of the ~~name and address of an arbitrator designated by the party giving such notice~~Premises. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Should Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall Tenant be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail unable to agree upon ~~the designation of a third arbitrator within 10 business days~~an arbitrator, then either ~~party~~ Landlord or Tenant may ~~apply~~ submit to the American Arbitration Association ~~or any successor having jurisdiction~~ (“AAA”) for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost appointment of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to ~~an express written agreement by Landlord executed and delivered after the Lease Date~~its applicable rules then in effect. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.This Paragraph 10

Appears in 1 contract

Samples: Industrial Gross Lease (Celera CORP)

Option to Extend. Provided the Tenant is not in default and further provided Tenant has validly exercised its First Option to Extend, Tenant shall have one (1) option to extend the ~~Term~~ term of this Lease ~~(the “Extension Option”)~~ for ~~one additional~~ a further period of 7 three (3) years and no months provided, however, that Tenant shall give Landlord written notice of its intention to extend not less than six (6) months prior to the ~~“Extension Term”) on~~ expiration of the ~~terms and conditions~~ term of this ~~Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise~~ Lease as extended by the ~~Extension~~ First Option ~~by delivering written notice (a “Notice~~ to Extend~~”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term~~ . Said notice shall be ~~the fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term, for extensions of space of equivalent quality, size, utility, and location~~ effective only if given in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense timely manner described (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence ~~with respect~~ in relation to ~~Tenant’s exercise; or~~ said notice) and provided tenant is not in default under the Lease on the date of the notice nor on the date the original term of the Lease is scheduled to expire as extended by the First Option to Extend. Such extended term shall be subject to all of the agreements, covenants and conditions set forth in this Lease except for (i) the Minimum Rent payable pursuant to Article III hereof which shall be as set forth hereinafter, and except for further Options to Extend as to which there shall be none. It is agreed and understood that the annual Minimum Rent for the extended period shall be equal to ninety-five (95%) percent of fair market rental value rate of the Premises as of the Commencement Date of this extended term. The Parties shall execute an Amendment to this Lease at least three (3) ~~an uncured Event~~ months prior to the said original expiration date memorializing said new Minimum Rent. If the Landlord and the Tenant are unable to mutually agree in writing upon the said fair market rental value with thirty (30) days after Tenant's exercise of ~~Default exists at~~ its rights hereunder the ~~time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date~~ said fair market rental value shall be determined by a panel of two appraisers who are members of the ~~Extension Term~~American Institute of Real Estate Appraisers one of whom shall be selected by landlord and one by Tenant. The two appraisers shall attempt to agree on the said value and if they cannot agree within thirty (30) days, a third shall be selected by the two so nominated and a decision by the majority of these three shall be accepted as final and binding upon the Landlord and Tenant. All costs and expenses of said appraisers shall be borne in equal shares by the Landlord and the Tenant, except the said costs and expenses shall be borne by the party requesting this appraisal procedure if the figure thus determined is within ten (10%) percent of the figures proffered in writing by the other party prior to commencing selection of the appraisers. If Landlord or the Tenant shall ~~execute~~ fail to select an ~~amendment~~ appraiser in accordance with the provisions hereof and such failure shall continue for a period of twenty (20) days after written notice thereof by either to ~~this Lease extending~~ the ~~Term and adjusting~~ other, then in that event the ~~Net Rent to be~~ appraisers selected by the ~~Prevailing Rental Rate. Tenant~~ party selecting an appraiser shall ~~have no further extension or renewal option other than~~ alone determine the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, fair market value and the ~~like) or other tenant inducements~~ costs of such appraisal shall be paid in ~~connection with~~ equal shares by the Landlord and the Tenant~~’s exercise of the Extension Option~~.

Appears in 1 contract

Samples: Lease Agreement (Farmstead Telephone Group Inc)

Option to Extend. So long as: a) the Lease has been executed and delivered by Tenant ~~shall have one option~~ in form acceptable to Landlord; b) Tenant is not and has not been in default under the Lease; c) the Lease has not previously been terminated; d) no Transfer affecting Tenant, the Premises or the Lease has occurred; e) Tenant is itself occupying the entire Premises; f) No prior rights of existing tenants in the Building exist; and g) Tenant gives to Landlord written notice of its intention to extend the Term of ~~this~~ the Lease not more than twelve (12) months nor less than nine (9) months prior to the ~~“Extension Option”)~~ expiry of the Term. Tenant shall have the right to extend the Term of the Lease for ~~one additional period of 7~~ a further 5 years (upon the ~~“Extension Term”) on the~~ same terms and conditions as contained in the Lease except as otherwise expressly provided therein and except that there shall be no further right of ~~this Section 3.2. The Extension Term shall commence~~extension or renewal, ~~if at all~~no rent concessions, ~~on April 1~~no Landlord’s Work required, ~~2018~~no fixturing period and no tenant allowance or any other amount payable by Landlord to Tenant, ~~and end on March 31, 2025.~~ the rates for any storage space and/or parking spaces used by Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the Landlord’s then applicable rates and annual Basic Rent shall be equal to the greater of: (i) the annual Basic Rent payable during the last prior year of the Term; or (ii) the fair market ~~rental rate (~~annual Basic Rent for the ~~“Prevailing Rental Rate”) at~~ Premises as agreed upon by the ~~commencement~~ parties having regard to the finished condition of the Extension Term, for extensions of space of equivalent quality, size, utility, and location in the Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at ~~Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice~~ the time of extension and having regard to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, then applicable basic rental levels for similar premises for a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate similar term in the ~~PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate~~Building. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen The parties shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt all reasonable efforts to reach agreement as to the ~~determination~~ fair market annual Basic Rent for the extension term not less than three months prior to the commencement of the ~~Prevailing Rental Rate~~extension term, and failing such agreement, fair market annual Basic Rent for the extension term shall be fixed by an independent real estate appraiser appointed by Landlord and approved by Tenant acting reasonably. If ~~the two arbitrators agree on the Prevailing Rental Rate~~Landlord so elects, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute ~~an amendment~~ Landlord’s then current form of lease amending agreement or lease, as determined by Landlord, to ~~this Lease extending the Term and adjusting the Net Rent~~ give effect to ~~be the Prevailing Rental Rate. Tenant shall have no further~~ such extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the ~~Extension Option~~Term.

Appears in 1 contract

Samples: Office Space Lease (Legend Oil & Gas, Ltd.)

Option to Extend. of the original Lease is deleted in its entirety. Tenant shall have ~~one option~~ the right, to be exercised as hereinafter provided, to extend the ~~Term~~ term of this Lease for two (~~the~~ 2) periods of five (5) years each (each such period, a “~~Extension Option”) for one additional period of 7 years (the “~~Next Extension Term”) ), on the following terms and conditions and subject to the limitations hereinafter set forth. Each Next Extension Term shall be upon the same terms, covenants and conditions as in this Lease, except that Base Rent shall be the greater of ~~this Section 3.2. The~~ (A) the annual Base Rent in effect immediately prior to the Next Extension Term; and (B) the Fair Market Base Rent for such space on the date such Next Extension Term shall commence~~, if at all, on April 1, 2018, and end on March 31, 2025~~. ~~Tenant may exercise the Extension Option by delivering written notice (a~~ “~~Notice to Extend”) of its exercise~~ Fair Market Base Rent” shall mean that net annual base rent per rentable square foot of the Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”) at Premises as of the commencement of the Next Extension ~~Term~~Term that a willing credit-worthy tenant would pay and a willing landlord would accept in an arms length bona fide negotiation for space comparable to the Premises in condition, ~~for extensions of space of equivalent~~ quality, ~~size, utility,~~ size and location in the ~~Mendota Heights~~ Plymouth, Minnesota area, ~~talking into account~~ with neither party under a compulsion for the ~~terms~~ appropriate term. Tenant shall notify Landlord of ~~this Lease,~~ its desire to extend the ~~length~~ term for the Next Extension Term by notifying Landlord in writing (“Extension Notification”) at least nine (9) months prior to commencement of the Next Extension Term. Upon Landlord’s receipt of the Extension Term, and all other relevant factors, but assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection NoticeNotification, Landlord and Tenant ~~each~~ shall ~~give notice~~ make a good faith effort to agree upon the ~~other~~ Fair Market Base Rent of the ~~name and address of an arbitrator designated by~~ Premises for the ~~party giving such notice~~Next Extension Term. ~~If either party fails to give notice of such designation within 10 business days after~~ In the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to event that Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators Tenant fail to agree upon the ~~designation~~ Fair Market Base Rent within forty-five (45) days of ~~a third arbitrator within 10 business days~~Landlord’s receipt of the Extension Notification, then ~~either party may apply~~ Tenant’s extension right shall automatically terminate. Tenant’s option to ~~the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations~~ extend as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator set forth in this Section shall be ~~binding~~ contingent upon ~~Landlord~~ this Lease being in full force and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (effect and ~~each party shall bear all of its own costs~~ Tenant not being in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience default in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence performance of any of the ~~following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option~~terms, ~~time being of the essence with~~ covenants and conditions herein contained in respect to ~~Tenant’s exercise; or (3) an uncured Event~~ a matter as to which notice of ~~Default exists at~~ default has been given hereunder which has not been remedied within the time ~~Tenant delivers the Notice to Extend~~limited in this Lease. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term in its then-current condition, and Landlord shall have no obligation to provide to Tenant any allowances (e.g., moving allowance, construction allowance, and the like) or other tenant inducements in connection with Tenant’s exercise of the Extension Option.

Appears in 1 contract

Samples: Lease (Vascular Solutions Inc)

Option to Extend. While the Lease is in full force and effect, provided that no Event of Default exists and further provided that Transaction Network Services, Inc. or an Affiliate is itself occupying at least seventy (70%) of all of the Premises then demised to Tenant, in each case both as of the time of option exercise and as of the commencement of the herein additional term, Tenant shall have ~~one~~ the right or option ~~to extend the Term of this Lease~~ (the “Extension Option”) to extend the original term of this Lease for one ~~additional~~ (1) period of ~~7 years~~ five (~~the “Extension Term”~~5) ~~on the terms and conditions of this Section 3.2~~years. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option by delivering written notice (a “Notice to Extend”) of its exercise Such extension of the ~~Extension Option to Landlord not later than April 1, 2017. 3.2.1 The Net Rent payable for each month during the Extension~~ original Lease Term shall be on the ~~fair market rental rate (the “Prevailing Rental Rate”) at the commencement of the Extension Term~~same terms, covenants and conditions as provided for ~~extensions of space of equivalent quality, size, utility, and location~~ in the ~~Mendota Heights area, talking into account the terms of this Lease, the length of the Extension Term, and all other relevant factors, but assuming~~ original Lease Term except that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination of the Prevailing Rental Rate. Unless Tenant delivers to Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice (the “PRR Objection Notice”): (i) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of such second notice. If either party fails to give notice of such designation within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the end of the 10-business day period, then the two arbitrators shall promptly designate a third arbitrator. If the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of the Extension Term, Landlord and Tenant shall execute an amendment to this Lease extending the Term and adjusting the Net Rent to be the Prevailing Rental Rate. Tenant shall have no further ~~extension~~ option to extend the Lease Term, and except that the base rental for the Premises and Tenant’s Share of Lower Level Space Rent during the extended term shall each be an amount equal to ninety-five percent (95%) of the then Fair Market Rent for such space for lease renewals as determined in accordance with paragraph 2.2.3 hereof. Any exercise of such Extension Option by Tenant as provided herein shall be irrevocable, whether or ~~renewal option other~~ not Fair Market Rent has been determined as of such date. If the Fair Market Rent has not been determined as of the commencement date of such additional term, Tenant initially shall pay Base Rent plus escalations and Tenant’s Share of Lower Level Space Rent for the extended term at the same rates payable for the Premises and Tenant’s Share of Lower Level Space Rent as of the date immediately preceding the commencement of such additional term, with a retroactive adjustment to be made within ten (10) Business Days after the determination of Fair Market Rent. Notwithstanding the foregoing or anything to the contrary contained in paragraph 2.2.3 hereof, (a) in no event shall the Base Rent or Tenant’s Share of Lower Level Space Rent on account of any additional term be less than the ~~Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant~~ annual Base Rent or Tenant’s Share of Lower Level Space Rent (in each case on a per rentable square foot basis) payable for the Premises ~~for~~ or use of the ~~Extension Term in its then-current condition~~Common Area Amenities, respectively, as of the date immediately preceding the commencement of such additional term, and (b) Landlord shall have no obligation to prepare, refurbish or construct the Premises, the Lower Level Space, any Common Area Amenities, or any part of any of the foregoing prior to the commencement of the herein additional term or otherwise provide ~~to Tenant~~ any ~~allowances~~ amount of improvement allowance in respect of the Premises (~~e.g., moving allowance, construction allowance, and~~ except as taken into account in the ~~like~~determination of Fair Market Rent as provided in paragraph 2.2.3 below). Notice (the “Option Notice”) ~~or other tenant inducements in connection with~~ of Tenant’s intention to exercise the Extension Option must be given to Landlord, in writing, at least nine (9) months prior to the expiration of the ~~Extension Option~~original Lease Term.

Appears in 1 contract

Samples: Gross Lease (TNS Inc)

Option to Extend. Tenant shall have ~~one option~~ the right to extend the Initial Term ~~of this Lease (the “Extension Option”)~~ for one additional five (5) year period ~~of 7 years~~ (the ~~“Extension Term”~~"EXTENSION TERM") ~~on the terms and conditions of this Section 3.2. The Extension Term shall commence, if at all, on April 1, 2018, and end on March 31, 2025. Tenant may exercise the Extension Option~~ by delivering written notice ~~(a “Notice to Extend”) of its exercise of the Extension Option~~ to Landlord on or before the date which is one year prior to the Expiration Date, provided that Tenant is not ~~later than April 1, 2017. 3.2.1 The Net Rent payable for each month during~~ in default at the ~~Extension Term shall be the fair market rental rate (the “Prevailing Rental Rate”)~~ time such notice is given or at the commencement of the Extension Term. The Extension Term shall be on the same terms and conditions contained herein applicable at the Expiration Date, except the Rent shall be the then-fair market rental value for ~~extensions~~ the Leased Premises, which means what a landlord under no compulsion to lease the Leased Premises and what a tenant under no compulsion to lease the Leased Premises would determine as rent for the Extension Term, as of ~~space of equivalent quality, size, utility, and location in~~ the ~~Mendota Heights area, talking into account the terms of this Lease, the length~~ commencement of the Extension Term, taking into consideration the uses permitted under this Lease, the quality, size, design, age, and ~~all other relevant factors~~location of the Leased Premises, and the rent for comparable buildings located in the vicinity of Mira Loma, California, but ~~assuming that no improvements Tenant has made to the Premises at Tenant’s sole expense (in other words, without reimbursement through~~ excluding any allowance or credit) had been made. Within 30 days after receiving Tenant’s Notice to Extend, Landlord shall deliver to Tenant written notice (the “PRR Notice”) advising Tenant of Landlord’s determination consideration of the ~~Prevailing Rental Rate~~value of Tenant's fixtures, machinery, systems, equipment, and other Tenant's Property, Alterations or other improvements installed or located by Tenant therein. ~~Unless~~ The fair market rental value shall be as determined by Landlord in the reasonable exercise of its real estate business judgment; provided, however, if Tenant ~~delivers~~ objects to such determination made by Landlord, within 30 days after receiving the PRR Notice, a written acceptance of Landlord’s determination of the Prevailing Rental Rate, the Prevailing Rental Rate shall be determined in accordance with Section 3.2.2 below. 3.2.2 If Tenant does not accept Landlord’s determination of the Prevailing Rental Rate within 30 days after Landlord’s PRR Notice as provided in Section 3.2.1, the Prevailing Rent Rate shall be determined as follows. Tenant shall submit to Landlord, within 30 days after receiving the PRR Notice, a notice ten (~~the “PRR Objection Notice”): (i~~10) advising Landlord that Tenant disagrees with Landlord’s determination of the Prevailing Rental Rate in the PRR Notice, and (ii) proposing a specific alternative Prevailing Rental Rate. If Landlord and Tenant fail, despite good-faith negotiations, to agree on the Prevailing Rental Rate on or before the date (the “Outside Date”) that is 30 days after Landlord receives the PRR Objection Notice, Landlord and Tenant each shall give notice to the other of the name and address of an arbitrator designated by the party giving such notice. If either party fails to give notice of such designation within 10 business days after the Outside Date, the other party shall provide an additional notice to such party requiring such party’s appointment of an arbitrator within 10 business days after receipt of ~~such second notice. If either party fails to give~~ written notice of such ~~designation~~ rental amount by Tenant, each party shall within such second 10 business day period, the first arbitrator chosen shall make the determination of the Prevailing Rental Rate alone. If two arbitrators have been designated, both arbitrators shall, within 10 business fifteen (15) days following the designation of the second arbitrator, make their determination of the Prevailing Rental Rate in writing and give notice to each other and to Landlord and Tenant. The two arbitrators shall have 10 business days (after the receipt of notice of each other’s determinations to confer with each other and to attempt to reach agreement as to the determination of the Prevailing Rental Rate. If the two arbitrators agree on the Prevailing Rental Rate, that rate shall be final and binding upon Landlord and Tenant. If the two arbitrators fail to agree on the Prevailing Rental Rate by the then end of the 10-~~business~~ day period) select an independent third-party appraiser, ~~then the two arbitrators~~ which appraisers shall ~~promptly designate~~ within fifteen (15) days after their selection select a third ~~arbitrator. If~~ independent third-party appraiser who shall within thirty (30) days after such selection determine the two arbitrators fail to agree upon the designation of a third arbitrator within 10 business days, then either party may apply to the American Arbitration Association or any successor having jurisdiction fair market rental value for the designation of such arbitrator. The third arbitrator shall conduct such hearing and investigations as he or she deems appropriate and shall, within 30 days after his or her designation, choose the one determination out of the two determinations by the two arbitrators originally selected by the parties that most closely approximates the third arbitrator’s own determination of the Prevailing Rental Rate, and that choice by the third arbitrator shall be binding upon Landlord and Tenant. The third arbitrator shall have no right to propose a middle ground or any modification of either of the determinations proposed by the original two arbitrators. Each party shall bear the cost of the arbitrator it selects. The remaining cost of the arbitration shall be split evenly between the parties (and each party shall bear all of its own costs in connection with such arbitration). The determination of the Prevailing Rental Rate in accordance with this Section 3.2.2 shall be final and binding in fixing the Prevailing Rental Rate. The arbitrators shall not have the power to add to, modify, or change any of the provisions of this Lease. All arbitrators shall be real estate brokers with at least 5 years of continuous experience in the business of acting as real estate agents or brokers with respect to comparable commercial office buildings in the southeastern Twin Cities market, exclusive of any broker from any brokerage firm currently representing (or who had previously represented within the preceding 2-year period) either Landlord or Tenant. 3.2.3 The Extension Option and all of Tenant’s rights under this Section 3.2 shall automatically terminate immediately upon the occurrence of any of the following: (1) either this Lease or Tenant’s right to possession of the Leased Premises is terminated; (2) Tenant fails to timely exercise the Extension Option, time being of the essence with respect to Tenant’s exercise; or (3) an uncured Event of Default exists at the time Tenant delivers the Notice to Extend. 3.2.4 If Tenant exercises the Extension Option, then, on or before the commencement date of for the Extension Term, ~~Landlord and Tenant~~ which the parties agree shall ~~execute an amendment to this Lease extending~~ be binding. Notwithstanding the ~~Term and adjusting~~ foregoing, in no event shall the ~~Net~~ Rent to be the Prevailing Rental Rate. Tenant shall have no further extension or renewal option other than the Extension Option except pursuant to an express written agreement by Landlord executed and delivered after the Lease Date. Landlord shall lease to Tenant the Premises for the Extension Term be less than the Rent last in ~~its then-current condition,~~ effect prior to the Extension Term. The Extension Term shall commence at midnight on the date on which the Initial Term expires and ~~Landlord~~ shall ~~have no obligation to provide to Tenant any allowances~~ continue until the fifth (~~e.g., moving allowance, construction allowance,~~ 5th) anniversary thereof. (The Initial Term and the ~~like) or other tenant inducements in connection with Tenant’s exercise of~~ Extension Term are collectively referred to herein as the ~~Extension Option~~"TERM").

Appears in 1 contract

Samples: Land and Building Lease Agreement (Aerobic Creations, Inc.)

Common use of Option to Extend Clause in Contracts