Option to Extend. (a) Landlord hereby grants Tenant two (2) consecutive options (individually an “Option” and collectively the “Options”) to extend the Term of the Lease for an additional period of three (3) years per Option (each such period may be referred to as the “Option Term”), as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior to the Expiration Date and no later than the date which is six (6) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 2 contracts

Samples: Assignment and Assumption of Lease and Third Amendment to Lease (Maxygen Inc), Lease Agreement (Maxygen Inc)

Option to Extend. ~~(a) Landlord hereby grants~~ 35.1 Tenant shall have the personal and non-transferrable right to extend the Term of this Lease for two (2) consecutive ~~options~~ periods of five (~~individually an~~ 5) years (the “First Option” and “Second Option” respectively, and collectively the “~~Options~~Option to Extend”). In the event Tenant is, or has been, in an Event of Default (beyond any applicable notice and grace or cure periods) at the time of the start of the First or Second Option Period, as hereinafter defined, or upon receipt of the First Option Notice or Second Option Notice, as hereinafter defined, from Landlord, then Tenant’s Option to Extend shall be void and of no further force or effect. The following terms shall apply to Tenant’s Option to Extend the Term of this Lease: (a) In order for Tenant to exercise the First Option to extend the lease for an additional five (5) year period (the “First Option Period”), Tenant must provide Landlord with written notice of its intention to so extend the Lease Term, with notice to be delivered in accordance with Section 34 hereof at any time after the commencement of the eighteenth (18th) month preceding the expiration of the initial Term of this Lease and prior to the beginning of the twelfth (12th) month preceding the expiration of the initial Term of the Lease ~~for an additional period of three~~ (~~3) years per Option (each such period may be referred to as~~ the “First Option ~~Term~~Notice”), as time being of the essence. If Tenant fails to timely exercise the ~~entire Premises as it then exists~~First Option to Extend in accordance with this paragraph, ~~upon and subject to~~ the ~~terms and conditions of this Section (the “Option To Extend”), and provided that at the time of~~ exercise of ~~each Option Tenant must~~ the First and Second Options shall be ~~in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered~~ deemed to have been waived by Tenant~~, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises~~. (b) ~~Tenant’s election (~~The First Option, if exercised, shall be upon, and subject to, all of the ~~“Election Notice”) to exercise~~ terms, covenants and conditions provided in the ~~Option To Extend must~~ Lease for the original Term hereof, except that the Basic Rental shall be ~~given to Landlord in writing no earlier than the date which is twelve (12) months prior~~ modified as provided below and that any terms, covenants or conditions hereof that are expressly or by their nature inapplicable to the ~~Expiration Date and no later than the date which is six (6) months prior to the Expiration Date. If Tenant either fails or elects~~ First Option shall not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extendapply. (c) The ~~Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration~~ initial Basic Rental as of the ~~preceding Term~~ commencement of the ~~Lease~~First Option Period shall be an amount equal to the fair market rental value of the Demised Premises (“FMV”) multiplied by a factor of ninety five percent (95%) (the “Option FMV”). The Option FMV shall be determined pursuant to the following: i. The parties shall attempt, during the three (3) month period following the date of the First Option Notice to mutually agree upon the Option FMV of the Demised Premises for the First Option Period. ii. If Landlord and Tenant shall fail to agree upon a final and binding Option FMV within such three (3) month period, Landlord shall, within the thirty (30) day period following, submit base rental figures to Tenant in writing which Landlord believe represents the Option FMV (“Landlord’s Notice”). Tenant shall, within fifteen (15) business days after receipt of Landlord’s Notice, either (A) confirm that Tenant agrees with Landlord’s determination of the Option FMV, in which event such Option FMV shall then automatically become the Annual Basic Rental as of the commencement of the First Option Period, or (B) notify Landlord that Tenant disagrees with Landlord’s determination of the Option FMV. If Landlord does not receive written notice from Tenant within fifteen (15) business days of Tenant’s receipt of Landlord’s Notice, then the Option FMV contained in Landlord’s Notice shall be deemed to be the Annual Basic Rental as of the commencement of the First Option Period. In the event Tenant disagrees with Landlord’s determination of the Option FMV contained in Landlord’s Notice then Tenant may commence arbitration by making written demand to Landlord (“Tenant’s Notice”) within fifteen (15) business days of Tenant’s receipt of Landlord’s Notice. Tenant’s ~~leasing~~ Notice shall contain a statement of the ~~Premises during~~ question to be arbitrated i.e. what is the Option ~~Term~~ FMV as of the commencement of the First Option Period and shall state Tenant’s determination of the Option FMV. Landlord and Tenant shall then mutually designate an arbitrator whose determination of the Option FMV (which shall be either the Option FMV contained in Landlord’s Notice or the Option FMV proposed by Tenant in Tenant’s Notice, but no other amount) shall be final and binding upon Landlord and ~~subject~~ Tenant. iii. If Landlord and Tenant shall fail to agree upon the choice of such arbitrator within ten (10) days after Landlord shall have received Tenant’s Notice, then either party may apply to the ~~same terms~~ American Arbitration Association or any successor thereto having jurisdiction to designate an arbitrator. The arbitrator shall be a real estate broker or consultant who is MAI certified by the Appraisal Institute and ~~conditions contained~~ who shall have had at least fifteen (15) years’ continuous experience in the ~~Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined~~ business of appraising or managing real estate or acting as a real estate agent or broker in the ~~manner set forth in the immediately following Subsection; (ii) the Security Deposit~~ Market. iv. The arbitrator shall ~~be increased to an amount that is the same percentage or proportion of Option Term Rent~~ conduct such hearings and investigations as ~~the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term~~he may deem appropriate and shall, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after his designation, determine which of the two (2) proposals shall be the FMV, and that choice by the arbitrator shall be binding upon Landlord and Tenant, provided that the arbitrator shall not have the power to add to, modify, or change any of the other provisions of this Lease. Each party shall pay its own counsel fees and expenses, if any, in connection with any arbitration under this Clause, and the parties shall share equally all other expenses and fees of any such arbitration. v. If for any reason the FMV shall not have been determined prior to the commencement of the First Option Period, then Tenant shall continue to pay Landlord the Basic Rental payable for the Demised Premises during the period immediately preceding the expiration of the initial Term of the Lease. Upon final determination of the ~~Fair Market~~ FMV, it shall have been determined that the Basic Rental ~~Rate, may elect to provide, in lieu of such allowance~~ payable for ~~alterations to~~ and during the ~~Premises, a rent credit~~ First Option Period shall be equal to the ~~amount~~ FMV, then an appropriate adjustment to the Basic Rental shall be made reflecting such final determination, and either (i) Landlord shall refund to Tenant any overpayment in Tenant’s payment of Basic Rental, or (ii) Tenant shall pay to Landlord any underpayment of Basic Rental, in each such instance for the period from commencement of the ~~allowance that would have otherwise been given, credited toward the rents applicable only~~ First Option Period to the ~~Premises~~ date of such final determination. vi. The decision of the arbitrator will be final and ~~due starting after such rent obligation commences. If Tenant timely~~ non-appealable, and ~~properly exercises the Option To Extend, references in the Lease~~ may be enforced according to the ~~Term shall be deemed to mean~~ laws of the ~~preceding Term as extended by the Option Term unless the context clearly requires otherwise~~State of Michigan. (d) In order for Tenant to exercise the Second Option to extend the lease for an additional five (5) year period (the “Second Option Period”), Tenant must provide Landlord with written notice of its intention to so extend the Lease Term, with notice to be delivered in accordance with Section 34 hereof at any time after the commencement of the eighteenth (18th) month preceding the expiration of the First Option Period of this Lease and prior to the beginning of the twelfth (12th) month preceding the expiration of the First Option Period of the Lease (the “Second Option Notice”), time being of the essence. If Tenant fails to timely exercise the Second Option in accordance with this paragraph, the exercise of the Second Option shall be deemed to have been waived by Tenant. (e) The Second Option, if exercised, shall be upon, and subject to, all of the terms, covenants and conditions provided in the Lease for the original Term hereof, except that the Base Rent shall be modified as provided below and that any terms, covenants or conditions hereof that are expressly or by their nature inapplicable to the Second Option shall not apply. (f) The initial Basic Rental as of the commencement of the Second Option Period shall be an amount equal to the fair market rental value of the Option FMV. The Option ~~Term Rent~~ FMV shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges be determined pursuant to the ~~Lease payable~~ following: i. The parties shall attempt, during the three (3) month period following the date of the Second Option Notice to ~~Landlord~~mutually agree upon the Option FMV of the Demised Premises for the Second Option Period. ii. ~~The determination of Fair Market Rental Rate~~ If Landlord and Tenant shall fail to agree upon a final and binding Option ~~Term Rent shall be made by Landlord~~FMV within such three (3) month period, Landlord shall, within the thirty (30) day period following, submit base rental figures to Tenant in writing which Landlord believe represents the ~~good faith exercise of~~ Option FMV (“Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the PremisesNotice”). Tenant ~~may~~shall, within fifteen (15) business days after receipt ~~thereof, deliver to Landlord a written notice either: (i) accepting~~ of Landlord’s ~~determination~~Notice, either (A) confirm that Tenant agrees with Landlord’s determination of the Option FMV, in which ~~case~~ event such Option FMV shall then automatically become the ~~extension shall be effective and binding (subject to Subsection (f) below) at~~ Annual Basic Rental as of the ~~accepted rate;~~ commencement of the Second Option Period, or (iiB) ~~setting forth Tenant~~notify Landlord that Tenant disagrees with Landlord’s ~~good faith estimate, in which case~~ determination of the Option FMV. If Landlord ~~and~~ does not receive written notice from Tenant ~~will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice~~ within ~~such~~ fifteen (15) ~~day period~~ business days of Tenant’s receipt of Landlord’s Notice, then the Option FMV contained in Landlord’s Notice shall be deemed ~~its cancellation~~ to be the Annual Basic Rental as of the ~~Option~~commencement of the Second Option Period. In the event Tenant ~~has delivered notice setting forth~~ disagrees with Landlord’s determination of the Option FMV contained in Landlord’s Notice then Tenant may commence arbitration by making written demand to Landlord (“Tenant’s ~~different estimate~~Notice”) within fifteen (15) business days of Tenant’s receipt of Landlord’s Notice. Tenant’s Notice shall contain a statement of the question to be arbitrated i.e. what is the Option FMV as of the commencement of the Second Option Period and shall state Tenant’s determination of the Option FMV. Landlord and Tenant shall then mutually designate an arbitrator whose determination of the Option FMV (which shall be either the Option FMV contained in Landlord’s Notice or the Option FMV proposed by Tenant in Tenant’s Notice, but no ~~agreement~~ other amount) shall be final and binding upon Landlord and Tenant. iii. If Landlord and Tenant shall fail to agree upon the choice of such arbitrator within ten (10) days after Landlord shall have received Tenant’s Notice, then either party may apply to the American Arbitration Association or any successor thereto having jurisdiction to designate an arbitrator. The arbitrator shall be a real estate broker or consultant who is MAI certified by the Appraisal Institute and who shall have had at least fifteen (15) years’ continuous experience in ~~writing between Tenant~~ the business of appraising or managing real estate or acting as a real estate agent or broker in the Market. iv. The arbitrator shall conduct such hearings and ~~Landlord on Fair Market Rental Rate~~ investigations as he may deem appropriate and ~~Option Term Rent is reached~~ shall, within thirty (30) days after ~~Landlord’s receipt~~ his designation, determine which of ~~Tenant’s estimate,~~ the ~~Fair Market Rental Rate~~ two (2) proposals shall be ~~determined in accordance with~~ the ~~terms of Exhibit B. Notwithstanding~~ FMV, and that choice by the arbitrator shall be binding upon Landlord and Tenant, provided that the arbitrator shall not have the power to add to, modify, or change any of the ~~foregoing to the contrary~~other provisions of this Lease. Each party shall pay its own counsel fees and expenses, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant if any, in connection with any arbitration under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determinationClause, and the ~~extension~~ parties shall ~~be effective~~ share equally all other expenses and ~~binding (subject to Subsection (f) below)~~fees of any such arbitration. ~~(e) Promptly after final determination of~~ v. If for any reason the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment FMV shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease been determined prior to the commencement of the Second Option ~~Term~~Period, ~~notwithstanding~~ then Tenant shall continue to pay Landlord the Basic Rental payable for the Demised Premises during the period immediately preceding the expiration of the First Option Period of the Lease. Upon final determination of the FMV, it shall have been determined that ~~all~~ the Basic Rental payable for and during the Second Option Period shall be equal to the FMV, then an appropriate adjustment to the Basic Rental shall be made reflecting such ~~Defaults~~ final determination, and either (i) Landlord shall refund to Tenant any overpayment in Tenant’s payment of Basic Rental, or (ii) Tenant shall pay to Landlord any underpayment of Basic Rental, in each such instance for the period from commencement of the Second Option Period to the date of such final determination. vi. The decision of the arbitrator will be final and non-appealable, and may ~~subsequently~~ be ~~cured~~enforced according to the laws of the State of Michigan. (g) ~~Without limiting~~ Under no circumstances whatsoever can the ~~generality of any provision~~ initial Basic Rental for the First Option Period or Second Option Period which is set via arbitration be equal to an amount which is less than the Basic Rental in effect immediately preceding the Expiration Date of the ~~Lease, time shall be~~ initial Term of the ~~essence with respect to all of~~ Lease or the ~~provisions of this Section~~First Option Period, as the case may be. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 2 contracts

Samples: Lease (Covisint Corp), Lease (Covisint Corp)

Option to Extend. ~~(a) Landlord hereby grants~~ Section 21.1 Tenant shall have the right to be exercised as hereafter provided, to extend the term of this Lease for two (2) additional consecutive ~~options~~ periods of five (~~individually~~ 5) years each (each, an “~~Option” and collectively the “Options”)~~ Option to ~~extend the Term of the Lease for an additional period of three (3) years per Option (each such period may be referred to as the “Option Term~~Extend”), ~~as to~~ on the ~~entire Premises as it then exists, upon~~ following terms and conditions and subject to the ~~terms and conditions of this~~ limitations hereafter set forth. Section ~~(the “Option To Extend”), and provided that~~ 21.2 That at the time of hereafter set forth for the exercise of ~~each~~ the Option ~~Tenant must~~ to Extend, and at the time the Extended Term commences, this Lease shall be in ~~occupancy (~~full force and ~~occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease,~~ effect and Tenant shall not ~~satisfy such condition)~~ be in default in the performance of ~~more than 75%~~ any of the ~~Rentable Area~~ terms, covenants and conditions herein contained in respect to a matter as to which notice of default has been given hereunder which has not been remedied within the ~~entire Premises~~time limited in this Lease, but Landlord shall have the right at its sole discretion to waive the non-default conditions herein. Section 21.3 That such Extended Term shall be on the same terms, covenants and conditions as set forth in this Lease; provided, however, the Annual Base Rent for such Extended Term shall be the greater of (bi) ~~Tenant’s~~ the Base Rent then in effect in this Lease; or (ii) the Market Rent for such space on the date such Extended Term shall commence, as determined in accordance with Article XXI, Section 21.6 or 21.7, as applicable below. Section 21.4 Tenant shall exercise an Option to Extend by notifying Landlord, in writing, of its election ~~(the “Election Notice”)~~ to exercise the ~~Option To Extend must be given~~ right to ~~Landlord in writing no earlier than~~ extend the term of this Lease on or before the date which is twelve (12) months prior to the ~~Expiration Date~~ expiration of the Initial Term, with respect to the first Option to Extend, and ~~no later than~~ on or before the date which is ~~six~~ twelve (612) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the ~~preceding Term~~ Extended Term, with respect to the second Option to Extend. Prior to commencement of the ~~Lease.~~ Extended Term, Landlord and Tenant agree to execute an amendment to this Lease incorporating the amended terms referred to in this Article XXI. Section 21.5 Notwithstanding any provision contained herein, Tenant’s ~~leasing~~ right to extend the term of ~~the Premises during the~~ this Lease pursuant to this Article XXI shall automatically terminate upon Tenant’s subletting or assigning any portion of its interest under this Lease. Section 21.6 After timely receipt by Landlord of Tenant’s notice of its Option ~~Term shall be upon~~ to Extend, Landlord and ~~subject to the same terms and conditions contained in the Lease except that (i)~~ Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion have a period of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days ~~after final determination~~ in which to agree on the Market Rent of the ~~Fair~~ Demised Premises for the Extended Term. If Landlord and Tenant agree on the Market ~~Rental Rate, may elect to provide, in lieu of such allowance~~ Rent for ~~alterations to~~ the Demised Premises, ~~a rent credit equal~~ then they shall immediately execute an amendment to this lease as provided in this Article XXI, which will incorporate the ~~amount of~~ Market Rent as the ~~allowance that would have otherwise been given, credited toward~~ Base Rent during the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwiseExtended Term. ~~(d) The Option Term~~ Section 21.7 If Landlord and Tenant are unable to agree upon the Market Rent ~~shall mean the sum of the Monthly Base Rent~~ then, and in any such event, at the ~~Fair~~ request of either party such Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be ~~made~~ determined by ~~Landlord~~appraisal by three (3) reputable real estate appraisers, in each of whom shall be a Member of the ~~good faith exercise~~ American Institute of ~~Landlord’s business judgment~~ Real Estate Appraisers with the designation of “MAI” and ~~in accordance with Exhibit B attached hereto~~shall have no “disqualifying interest” (as hereinafter defined). ~~Within forty-five~~ One (451) appraiser shall be appointed by Tenant or its representative and the second (2nd) appraiser shall be appointed by Landlord or its representative. The third (3rd) appraiser shall be appointed by the first two (2) appraisers. If the first two (2) appraisers are unable to agree on a third appraiser within ten (10) days after ~~Tenant’s exercise~~ the appointment of the ~~Option To Extend~~second (2nd) appraiser, ~~Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may,~~ or if either party refuses or neglects to appoint any appraiser as herein provided within ~~fifteen~~ ten (1510) days after ~~receipt thereof~~the appointment of the first (1st) appraiser, ~~deliver~~ then such third (3rd) appraiser or such second (2nd) appraiser whose appointment was not made as aforesaid shall be appointed by the then President of the Minnesota Chapter of the American Institute of Real Estate Appraisers (“Appraisal Institute”) or such successor body hereafter constituted exercising similar functions, unless such President shall have a direct or indirect financial or other business interest in or in common with any of the parties hereto (herein referred to ~~Landlord~~ as a ~~written notice either: (i) accepting Landlord’s determination~~“disqualifying interest”), in which case the ~~extension~~ third (3rd) appraiser or such other appraiser whose appointment was not made as aforesaid shall be ~~effective~~ appointed by the then next highest ranking officer of the Minnesota chapter of the Appraisal Institute or such successor body who shall not have a disqualifying interest. If the determinations of at least two (2) of the appraisers shall be identical in amount and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period said amount shall be deemed ~~its cancellation~~ to be the Market Rent. If the determinations of at least two (2) of the ~~Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement~~ appraisers shall not be identical in ~~writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate~~amount, the ~~Fair~~ Market ~~Rental Rate~~ Rent shall be determined as follows (a) if neither the highest nor the lowest determination of Market Rent differs from the middle determination of Market Rent by more than ten percent (10%) of such middle determination of Market Rent, then the Market Rent shall be the average of all three (3) determinations of Market Rent, and (b) if clause (a) does not apply, then the Market Rent shall be the average of the middle determination of Market Rent and the determination of Market Rent closest in amount to said middle determination of Market Rent. The foregoing determination of Market Rent shall in all cases be final, finding and conclusive upon the parties. Each party shall pay the fees and expenses of the one of the two (2) original appraisers appointed by such party, or in whose stead as above provided such appraiser was appointed, and the fees and expenses of the third appraiser shall be borne equally by both parties. Except as otherwise provided in this Lease, the said appraisal shall be conducted in accordance with the ~~terms of Exhibit B. Notwithstanding any~~ Commercial Arbitration Rules then obtaining of the American Arbitration Association (including for appointment of appraisers if the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable procedures for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Termany reason fail), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not and judgment upon any appraisal decision rendered may be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below)entered by any Court having jurisdiction thereof. (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 2 contracts

Samples: Lease Agreement (Accentia Biopharmaceuticals Inc), Lease Agreement (Biovest International Inc)

Option to Extend. ~~(a) Landlord hereby grants Tenant two (2) consecutive options (individually an “Option” and collectively~~ Lessee shall have the ~~“Options”)~~ option to extend the Term for a period of sixty (60) months immediately following the expiration of the ~~Lease for an additional period of three~~ initial Term (~~3) years per Option (each such period may be referred to as~~ the ~~“Option~~ "Extended Term”"), ~~as to the entire Premises as it then exists, upon and~~ on all provisions contained in this Lease (subject to adjustment of Base Rent upon the commencement of the Extended Term as described below, and except for such terms and conditions of this ~~Section~~ Lease as are specifically or by their operation limited to the initial Term only (including, without limitation, Exhibit "C" attached hereto and provisions respecting construction of Lessee Improvements and payment of a Lessee Improvement Allowance) and except that Lessee shall have no further right or option to extend the ~~“Option To Extend”~~term upon the expiration of the Extended Term), ~~and provided that at the time~~ by giving notice of exercise of ~~each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to~~ the ~~Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election~~ option (the ~~“Election~~ "Option Notice”") to ~~exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is~~ Lessor at least twelve (12) months ~~prior~~ but not more than eighteen (18) months before the expiration of the then applicable Term. Lessor's ability to plan for the orderly transaction of its rental business, to accommodate the needs of other existing and potential tenants, and to enjoy the benefits of increasing rentals at such times as Lessor is able to do so in its sole and absolute discretion, are fundamental elements of Lessor's willingness to provide Lessee with the option to extend contained herein. Accordingly, Lessee hereby acknowledges that strict compliance with the notification provisions contained herein, and Lessee's strict compliance with the time period for such notification contained herein, are material elements of the bargained for exchange between Lessor and Lessee and are material elements of Lessee's consideration paid to Lessor in exchange for the grant of the option. Therefore, Lessee's failure to adhere strictly and completely to the ~~Expiration Date~~ provisions and time frame contained in this provision shall render the option automatically null, void and of no ~~later~~ further force or effect, without notice, acknowledgement, or any action of any nature or sort, required of Lessor. Lessee acknowledges that no other act or notice, other than the ~~date which is six (6) months prior~~ express written notice set forth hereinabove, shall act to put Lessor on notice of Lessee's intent to extend, and Lessee hereby waives any claims to the ~~Expiration Date~~contrary, notwithstanding any other actions of Lessee during the Term of this Lease or any statements, written or oral, of Lessee to Lessor to the contrary during the Term of this Lease. ~~If Tenant either fails or elects not~~ Notwithstanding the foregoing, if Lessee is in default (after the expiration of any applicable period for cure pursuant to ~~exercise~~ Article 22 below) on the date of giving the Option ~~to Extend by not timely giving its Election~~ Notice, ~~then~~ the Option ~~to Extend~~ Notice shall be totally ineffective, or if Lessee is in default (after the expiration of any applicable period for cure pursuant to Article 22 below) on the date the Extended Term is to commence, in addition to any and all other remedies available to Lessor under this Lease, at Lessor's election, the exercise of the option shall be deemed null and void, the Extended Term shall not commence, and this Lease shall expire at the end of the Term. The option to extend granted pursuant hereto is personal to original Lessee signatory to this Lease and cannot be assigned, transferred or conveyed to, or exercised for the benefit of, any other person or entity (voluntarily, involuntarily, by operation of law or otherwise) including, ~~if more~~ without limitation, to any assignee or subtenant permitted under Article 13, other than ~~one Option is granted, the then applicable Option to Extend and all further Options to Extend.~~ a "Permitted Transferee" (~~c) The Option Term (and each Option Term, if more than one Option is granted)~~ as defined in Article 13). All of Lessee's rights under this Article 3.b. shall ~~commence immediately after~~ terminate upon the expiration of the ~~preceding~~ initial Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions sooner termination of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 2 contracts

Samples: Office Lease (Doubleclick Inc), Office Lease (Netgravity Inc)

Option to Extend. (a) Landlord hereby grants Tenant two (2) consecutive options (individually an “"Option” " and collectively the “"Options”") to extend the initial Term of the Lease for an additional period of ~~three~~ five (35) years per Option (~~each~~ such period may be referred to as the “"Option Term”"), as to the entire Premises as it may then ~~exists~~exist, upon and subject to the terms and conditions of this Section (the “"Option To Extend”"), and provided that at the time of exercise of each ~~Option~~ option: (i) Tenant must be in occupancy of seventy-five percent (75%) of the Premises; and ~~occupancy by a subtenant, licensee or other party permitted or suffered~~ (ii) there has been no material adverse change in Tenant's financial position from such position as of the date of execution of the Lease. Tenant shall deliver to Landlord with Tenant's written notice exercising its right hereunder Tenant's most recent annual audited financial statements certified by Tenant's independent certified public accountant, ~~other than pursuant to~~ and the ~~Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises~~most recent publicly-filed financial statements and documents showing Tenant's financial position. (b) Tenant’s 's election (the “"Election Notice”") to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is ~~twelve~~ fifteen (1215) months prior ~~to the Expiration Date~~ to, and no later than the date which is ~~six~~ nine (69) months prior to to, the then applicable Expiration ~~Date~~Date of the initial Term or the Option Term, as applicable . If Tenant either fails or elects not to exercise the then applicable Option to Extend by not timely giving its Election Notice, then ~~the~~ such Option to Extend shall be null and void. Further, ~~including,~~ the second Option shall be void and of no force or effect if ~~more than one~~ the first Option is ~~granted~~not validly exercised or is waived, ~~the then applicable Option to Extend and all further Options to Extend~~revoked or terminated as provided below after any exercise. (c) ~~The~~ Each Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the preceding initial Term ~~of the Lease~~or Option Term, as applicable. Tenant’s 's leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except ~~that~~ that: (i) ~~Tenant~~ the Monthly Base Rent shall ~~pay~~ be amended to an amount to equal the “"Option Term Rent”", defined and determined in the manner set forth in the immediately following ~~Subsection~~Subsection (and otherwise, Tenant shall continue to pay Rent Adjustments, all other Rent and all other charges pursuant to the Lease and Tenant shall continue to pay directly the utility or service provider for all utilities or services which Tenant is to obtain directly pursuant to other provisions of the Lease); (ii) the Security ~~Deposit~~ Deposit, if any, shall be increased within fifteen (15) days after the Fair Market Rental Rate (defined below) has been determined to ~~an amount that is~~ equal one hundred percent (100%) of the ~~same percentage or proportion~~ highest monthly installment of ~~Option Term~~ Monthly Base Rent ~~as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term~~thereunder, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its ~~“as is”~~ "AS-IS" condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance ~~therefor~~therefor except that after the commencement date of the applicable Option Term, Landlord will again make available the Redecorating Allowance on the same terms and conditions set forth above for the Redecorating Allowance (except that the "commencement date of the Option Term" shall be substituted in place of references to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination "fifth anniversary of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commencesCommencement Date"). If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the ~~preceding~~ initial Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the ~~sum~~ greater of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the initial Term ~~preceding~~ with respect to determining Rent for the first Option ~~Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable~~Term, ~~using the base year for calculation of Base Operating Expenses applicable~~ and for the last full month of the first Option Term ~~preceding~~ with respect to determining Rent for the second Option Term (respectively, the "Preceding Rent") (during the Option Term), ~~plus~~ Tenant shall continue to pay Rent Adjustments and other charges pursuant to the Lease ~~payable~~ and Tenant shall continue to ~~Landlord. To the extent that Tenant pays~~ pay directly the utility or service provider for all utilities or services which Tenant is to obtain directly pursuant to other provisions of the Lease~~, Tenant shall continue to pay such amounts~~, but such amounts shall not be counted as part of the Preceding Rent as used herein) or (ii) the "Fair Market Rental Rate". "Fair Market Rental Rate" shall mean as to Monthly Base Rent the monthly net rental (exclusive of expenses and taxes) per rentable square foot which a tenant would pay and which a willing landlord would accept for space in projects in the San Bernardino-Riverside warehouse/industrial market of first class standards comparable to the Premises for the period for which such rental is to be paid and for a lease on terms substantially identical to those of the Lease (including, without limitation, those applicable to Operating Expenses and Exclusions), based on prevailing market conditions in such first class projects at the time such determination is made ("Comparable Transactions"). Without limiting the generality of the foregoing, Comparable Transactions shall be for a term similar to the term of tenancy and for space comparable in use, floor layout and levels (if the Building has more than one level), square footage and location within a first class project as the transaction for which Fair Market Rental Rate ~~as used herein. Further~~is being determined; however, ~~in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%)~~ leases of ~~the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant~~ unusual or odd shaped spaces shall not be ~~entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final~~ considered. In any determination of ~~the~~ Fair Market Rental Rate, ~~Landlord~~ the stated or contract monthly net rental in Comparable Transactions shall ~~prepare a memorandum confirming~~ be appropriately adjusted to take into account the ~~specific dates, amounts and terms of the extension for the Option Term in accordance with the~~ different terms and conditions ~~of this Option to Extend,~~ prevailing in ~~the form of an amendment to~~ such transactions and those present in the Lease, including, without limitation: (1) the extent to which average annual expenses and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term taxes per rentable square foot payable by tenants in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Comparable Transactions vary from those payable by Tenant under the Lease. ; (~~iii~~2) ~~Tenant’s third Default~~ the concessions, if any, being given by landlords in Comparable Transactions, such as presence or absence of parking charges, abatement of any such charges, rental abatement periods, loans at below-market interest rates, moving allowances, space planning allowances, lease takeover payments and work allowances, as compared to any tenant improvement, refurbishment or repainting allowance given to Tenant under the Lease ~~prior~~ for the space for which Fair Market Rental Rate is being determined; (3) the brokerage commissions, fees and bonuses payable by landlords in Comparable Transactions (whether to tenant's agent, such landlord or any person or entity affiliated with such landlord), as compared to any such amounts payable by Landlord to any recognized broker(s) on account of the transaction for which Fair Market Rental Rate is being determined; (4) the time value of money; and (5) any material difference between the definition of rentable area and the ratio of project rentable to useable square feet in Comparable Transactions, as compared to such figures applicable to the ~~commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured~~space for which Fair Market Rental Rate is being determined. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 2 contracts

Samples: NNN Lease (United Natural Foods Inc), NNN Lease (United Natural Foods Inc)

Option to Extend. ~~(a)~~ Landlord hereby grants to Tenant ~~two (2) consecutive options (individually~~ an ~~“Option” and collectively the “Options”)~~ option to extend the ~~Term~~ term of ~~the~~ this Lease for ~~an additional period of three~~ the Option Term upon written notice given not less than six (36) ~~years per Option (each such period may be referred to as the “Option Term”), as to the entire Premises as it then exists, upon~~ months and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not ~~satisfy such condition) of~~ more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior to the Expiration Date and no later than the date which is six (6) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after in advance of the expiration of the Initial Term; provided however, that Tenant's exercise of such option shall not be effective if (a) Tenant shall be in default beyond the applicable cure period after notice from Landlord under any of the monetary or other materials terms of this Lease either at the time of such exercise or at the expiration of the then Initial Term; or (b) if Tenant has not met the Gross Sales Threshold (as defined in Section 1.9 and adjusted per Section 5.8 each year of the Lease Term) required for the preceding twelve (12) month period; provided, further, Landlord may condition Tenant's extension of the Term of ~~the Lease.~~ this lease on Tenant~~’s leasing~~ 's refurbishment of the Premises ~~during~~ if such refurbishment is reasonably necessary to maintain the ~~Option~~ Premises as a first class establishment in accordance with Section 16.1 and Article 14. All terms and conditions applicable to the Initial Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior applicable to the Option Term, including but ~~in no event shall~~ not limited to provisions regarding Minimum Annual Rental and Percentage Rental annual increases; however, the ~~Security Deposit be decreased; and (iii) Tenant shall accept~~ provisions of Exhibit C regarding the initial construction of the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall not be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has ~~delivered notice setting forth Tenant’s different estimate, but no agreement~~ not met the Gross Sales Breakpoint (as defined in ~~writing between Tenant~~ Section 1.8 and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any adjusted per Section 5.3 each year of the ~~foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%~~Lease Term) ~~of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable~~ required for the ~~last full~~ preceding (12) month of period, then the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant option to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend extend is personal to ~~Perseid (or, if applicable, a~~ Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be ~~used by~~exercised or be assigned, ~~and shall not be transferable or assignable (~~voluntarily or involuntarily) , by or to any ~~other~~ person or ~~entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more~~ entity other than ~~only a single person or entity~~Tenant.

Appears in 2 contracts

Samples: Lease Agreement (Silicon Entertainment Inc /Ca/), Lease Agreement (Silicon Entertainment Inc /Ca/)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the Term of the Lease for an additional period of ~~three~~ five (35) years ~~per Option~~ (~~each~~ such period may be referred to as the “Option Term”), as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of such option (and each Option, if more than one Option is granted): (i) Tenant or a Permitted Transferee which has satisfied the requirements of Sections 10.01 and 10.05 of the Lease must be conducting regular, active, ongoing business in, and be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by ~~Tenant, other than pursuant to the Maxygen Sublease,~~ Tenant shall not satisfy such condition) of ~~more than 75% of the Rentable Area of~~ the entire Premises; and (ii) there has been no material adverse change in Tenant’s financial position from such position as of the date of execution of the Lease, as certified by Tenant’s independent certified public accountants, and as supported by Tenant’s certified financial statements, copies of which shall be delivered to Landlord with Tenant’s written notice exercising its right hereunder. Without limiting the generality of the foregoing, Landlord may reasonably conclude there has been a material adverse change if Tenant’s independent certified public accountants do not certify there has been no such change. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing ~~no earlier than~~ during the ~~date which is~~ period starting twelve (12) months ~~prior to~~ before and ending nine (9) months before the scheduled Expiration Date ~~and no later than~~ of the ~~date which is six (6) months prior to the Expiration Date~~initial Term. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one ~~Option~~ Option, is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security ~~Deposit~~ shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security ~~Deposit~~ was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security ~~Deposit~~ be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B F hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit BF) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business ~~judgment and in accordance with Exhibit B attached hereto~~judgment. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. F. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ~~ninety-five percent (95%) of~~ the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ~~ninety-five percent (95%) of~~ the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the ~~Lease~~Lease or of any state of facts which with the passage of time or the giving of notice, or both, would constitute such a Default. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to ~~Perseid (or~~Genomic, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any ~~other~~ person or ~~entity. In all events~~entity other than a Permitted Transferee which is an assignee of the Lease and which has satisfied the requirements of Sections 10.01 and 10.05 of this Lease, ~~this Option~~ and such Permitted Transferee may exercise the right without Tenant joining in or consenting to ~~Extend shall at any time be exercisable by~~such exercise, ~~accrue~~ and notwithstanding anything to the ~~benefit of~~ contrary, Tenant shall remain liable for all obligations under the Lease, including those resulting from any such exercise with the same force and ~~be personal to no more than only a single person or entity~~effect as if Tenant had joined in such exercise.

Appears in 1 contract

Samples: Lease Agreement (Genomic Health Inc)

Option to Extend. (a) Subject to the terms of this Paragraph 50 and Paragraph 52, entitled “Options”, Landlord hereby grants to Tenant ~~two~~ one (21) ~~consecutive options~~ option (~~individually an “Option” and collectively~~ the “~~Options~~Extension Option”) to extend the Term of this Lease with respect to the ~~Lease~~ entire Premises for an one additional period of ~~three~~ five (35) years ~~per Option~~ (~~each such period may be referred to as~~ the “Option Term”), ~~as to~~ on the ~~entire Premises as it then exists~~same terms, ~~upon and subject to the terms~~ covenants and conditions as provided for in this Lease during the initial Term, except that Base Rental shall be established based on the “fair market rental rate” for the Premises for the Option Term as defined and determined in accordance with the provisions of this ~~Section (the “Option To Extend”)~~Paragraph 50 below, and ~~provided that at~~ as extended, the ~~time of exercise of each Option~~ Term shall be five (5) years and Tenant ~~must be~~ shall have no further options to extend unless otherwise agreed by Landlord in ~~occupancy (~~its sole and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premisesabsolute discretion. (b) ~~Tenant’s election~~ The Extension Option must be exercised, if at all, by written notice (~~the~~ “~~Election~~ Extension Notice”) ~~to exercise the Option To Extend must be given~~ delivered by Tenant to Landlord ~~in writing no earlier than the date which is twelve (12) months prior to the Expiration Date and~~ no later than the date which is six (6) months, and no earlier than the date which is nine (9) months prior to the ~~Expiration Date. If Tenant either fails or elects not to exercise~~ expiration of the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extendinitial 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, which as of the date of determination is projected for and throughout the Option Term to be acceptable to a willing, non-equity tenant (excluding sublease and ~~each Option Term~~assignment transactions), and a willing landlord of a “Class A” quality office building located in the Santa Axx/Costa Mesa/Irvine, California area (“Comparison Area”), in an arm’s length transaction (what Landlord is accepting in then current transactions for the Building may be considered), for space of comparable size or greater, comparable in quality and floor height as the leased area at issue taking into account the age and layout of the existing improvements in the leased area at issue and 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, parking charges, free rent, free parking and any other lease concessions, if ~~more~~ any, then being charged or granted by Landlord or the lessors of such similar office buildings. (d) Landlord’s determination of fair market rental rate shall be delivered to Tenant in writing not later than ~~one Option~~ thirty (30) days following Landlord’s receipt of Tenant’s Extension Notice. Tenant will have thirty (30) days (“Tenant’s Review Period”) alter receipt of Landlord’s notice of the fair market rental rate within which to accept such fair market rental rate or to object thereto in writing. Tenant’s failure to accept the fair market rental rate submitted by Landlord in writing within Tenant’s Review Period will conclusively be deemed Tenant’s disapproval thereof. If Tenant objects to or is ~~granted~~deemed to have disapproved the fair market rental rate submitted by Landlord within Tenant’s Review Period, then Landlord and Tenant will attempt in good faith to agree upon such fair market rental rate using their best good faith efforts. If Landlord and Tenant fail to reach agreement on such fair market rental rate within fifteen (15) ~~shall commence immediately after~~ days following the expiration of ~~the preceding Term of the Lease.~~ Tenant’s ~~leasing~~ Review Period (the “Outside Agreement Date”), then the Extension Option will be deemed void and of no further force or effect, unless within ten (10) days after the ~~Premises during~~ Outside Agreement Date, Tenant demands appraisal, in which event each party’s determination will be submitted to appraisal in accordance with the ~~Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that~~ provisions below. (i) Landlord and Tenant shall ~~pay~~ each appoint one appraiser who shall by profession be a real estate broker who has been active over the ~~“Option Term Rent”, defined and determined~~ five (5) year period ending on the date of such appointment in the ~~manner set forth~~ leasing of high-rise office space in the ~~immediately following Subsection; (ii) the Security Deposit shall~~ Comparison Area. Each such appraiser will be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant appointed within thirty (30) days after ~~final determination of~~ the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwiseOutside Agreement Date. (dii) The ~~Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate~~ two (~~as defined in Exhibit B~~2) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, appraisers so appointed will within fifteen (15) days ~~after receipt thereof, deliver~~ of the date of the appointment of the last appointed appraiser agree upon and appoint a third appraiser who shall be qualified under the same criteria set forth herein above for qualification of the initial two (2) appraisers. (iii) The determination of the appraisers shall be limited solely to ~~Landlord a written notice either: (i) accepting~~ the issue of whether Landlord’s ~~determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate;~~ or ~~(ii) setting forth~~ Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen last proposed (~~15) day period shall be deemed its cancellation~~ as of the ~~Option. In~~ Outside Agreement Date) new fair market rental rate for the ~~event Tenant has delivered notice setting forth Tenant’s different estimate~~Premises is the closest to the actual new fair market rental rate for the Premises as determined by the appraisers, ~~but no agreement in writing between Tenant~~ taking into account the requirements of Paragraph (c) and ~~Landlord on Fair Market Rental Rate and Option Term Rent is reached~~ this Paragraph (e) regarding same. (iv) The three (3) appraisers shall within thirty (30) days ~~after~~ of the appointment of the third appraiser reach a decision as to whether the parties shall use Landlord’s ~~receipt of~~ or Tenant’s ~~estimate~~submitted new fair market rental rate, and shall notify Landlord and Tenant thereof. (v) The decision of the majority of the three (3) appraisers shall be binding upon Landlord and Tenant. The cost of each party’s appraiser shall be the responsibility of the party selecting such appraiser, and the cost of the third appraiser (or arbitration, if necessary) shall be shared equally by Landlord and Tenant. (vi) If either Landlord or Tenant fails to appoint an appraiser within the time period in Paragraph (e)(i) herein above, the ~~Fair Market Rental Rate~~ appraiser appointed by one of them shall reach a decision, notify Landlord and Tenant thereof and such appraiser’s decision shall be ~~determined in accordance with~~ binding upon Landlord and Tenant. (vii) If the ~~terms of Exhibit B. Notwithstanding any~~ two (2) appraisers fail to agree upon and appoint a third appraiser, both appraisers shall be dismissed and the matter to be decided shall be forthwith submitted to arbitration. (viii) In the event that the new Base Rental is not established prior to end of the ~~foregoing to the contrary, at no time during the Option~~ initial Term ~~shall the Option Term Rent be less than ninety-five percent (95%)~~ of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, ~~Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of~~ the ~~Preceding Rent or the Fair Market~~ Base Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or immediately payable at the commencement of the Option Term ~~of a Default~~ shall be the Base Rental established by Landlord for the Option Term pursuant to the foregoing. Notwithstanding the above, once the fair market rental is determined in accordance with this section, the parties shall settle any overpayment or underpayment on the ~~part of Tenant under~~ next Base Rental payment date falling not less than thirty (30) days after such determination and shall enter into an amendment to this Lease confirming the ~~Lease. (iii) Tenant’s third Default under the Lease prior to the commencement~~ terms of the ~~Option Term, notwithstanding that all such Defaults may subsequently be cured~~determination. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Office Lease Agreement (Borland Software Corp)

Option to Extend. So long as no Event of Default has occurred and is continuing at the time it exercises the Option to Extend or on the Expiration Date of the Term (aor the first Extended Term, as the case may be), Tenant shall have the right and option to extend this lease (“Option to Extend”) ~~Landlord hereby grants Tenant~~ for two (2) ~~consecutive options~~ additional option periods of five (~~individually~~ 5) years (each an “~~Option” and collectively the “Options”) to extend the Term of the Lease for an additional period of three (3) years per Option (each such period may be referred to as the “Option~~ Extended Term”), upon the same terms and conditions herein set forth except that the Base Rent (as defined in Section 3, below) shall be an amount equal to ~~the entire Premises~~ ninety-seven and one-half percent (97.5%) of “Fair Market Value” as ~~it then exists, upon~~ defined in and ~~subject to~~ determined in accordance with the terms and conditions of ~~this Section (~~Exhibit D, attached hereto. If Tenant exercises its Option to Extend, for either Extended Term, Base Rent for the “Option To Extend”), and provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is first twelve (12) months ~~prior~~ of such Extended Term shall be amount determined in accordance with the preceding sentence, and shall be subject to increases of three percent (3%) for each subsequent twelve (12) month period during the ~~Expiration Date and no later than~~ Extended Term, adjusted as of each annual anniversary of the ~~date which is six~~ expiration of the initial Term. To exercise the Option to Extend, Tenant must give Landlord notice in writing sent so as to be received at least two hundred seventy (6270) ~~months~~ days prior to the Expiration Date. If Tenant ~~either fails or elects not~~ timely exercises an Option to Extend, each applicable Extended Term shall be deemed included within the definition of “Term” hereunder; provided, however, that Tenant’s failure to properly exercise ~~the~~ its Option to Extend ~~by not timely giving~~ for the initial Extended Term shall render Tenant’s right to the second Extended Term null and void. At Landlord’s election, Tenant’s exercise of its ~~Election Notice, then the~~ Option to Extend shall be ~~null and void, including,~~ void if ~~more than one Option~~ Tenant is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant default under this Lease ~~calculated at~~ beyond any applicable notice and cure period on the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute date it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises ~~the~~ its Option to Extend or ~~at the commencement of the Option Term of a Default~~ on the ~~part of Tenant under the Lease~~Expiration Date. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Lease Agreement (Verigy Ltd.)

Option to Extend. Borrower shall have the option to extend the term of the Loan from the Maturity Date (for purposes of this Section, “Original Maturity Date”), to the Extended Maturity Date, upon satisfaction of each of the following conditions precedent: (a) ~~Landlord hereby grants Tenant two~~ Borrower shall provide Lender with written notice of Borrower’s request to exercise the Option to Extend not more than one hundred twenty (2120) ~~consecutive options~~ days but not less than sixty (~~individually an “Option” and collectively~~ 60) days prior to the ~~“Options”~~Original Maturity Date; and (b) ~~to extend the Term~~ As of the ~~Lease for~~ date of Borrower’s delivery of notice of request to exercise the Option to Extend, and as of the Original Maturity Date, no Default shall have occurred and be continuing, and Borrower shall so certify in writing; and (c) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Option to Extend and shall deliver to Lender, at Borrower’s sole cost and expense, a CLTA 110.5 endorsement to the Title Policy if required by Lender; and (d) There shall have occurred no material adverse change, as determined by Lender in its reasonable discretion, in the financial condition of Borrower, any Guarantor or any Indemnitor from that which existed as of the later of: (A) the Effective Date; or (B) the date upon which the financial condition of such party was first represented to Lender; and (e) On or before the Original Maturity Date, Borrower shall pay to Lender an ~~additional period~~ extension fee in the amount of ~~three~~ Nine Thousand Dollars (3$9,000); and (f) ~~years per Option~~ At Lender’s option, Lender shall have obtained a written appraisal prepared in conformance with the requirements of the Comptroller of the Currency confirming to the satisfaction of Lender that the Loan amount as a percentage of the as-is fair market value of the Property as of the Original Maturity Date does not exceed seventy-five percent (~~each~~ 75%) (“Loan-to-Value Percentage”); provided, however, in the event such ~~period~~ as-is fair market value is not adequate to meet the required Loan-to-Value Percentage, then Borrower shall pay down the outstanding principal balance of the Loan on the date following the Original Maturity Date which next coincides with the expiration of a Fixed Rate Period (as defined in the Note) and without premium or penalty such that said Loan-to-Value Percentage may be ~~referred~~ met. The valuation date of such appraisal shall be within sixty (60) days of the Original Maturity Date. Any principal balance reduction shall reduce Lender’s commitment by a like amount and may not be reborrowed; and (g) The Gross Coverage Factor shall equal or exceed ten percent (10%). Except as modified by this Option to ~~as the “Option Term”)~~Extend, ~~as to the entire Premises as it then exists, upon and subject to~~ the terms and conditions of this ~~Section (~~Agreement and the ~~“Option To Extend”),~~ other Loan Documents as modified and ~~provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy~~ approved by ~~a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease,~~ Lender shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior to the Expiration Date and no later than the date which is six (6) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment remain unmodified and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate full force and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below)effect. (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Loan Agreement (Douglas Emmett Inc)

Option to Extend. (a) ~~Landlord hereby~~ Sublessor grants ~~Tenant two~~ to Sublessee one (21) ~~consecutive options~~ option (~~individually an~~ the “Extension Option” ~~and collectively the “Options”)~~ to extend the ~~Term~~ term of this Sublease to a period commencing July 16, 2022 and ending July 15, 2025 (the “Extended Term”). All the provisions of the Lease shall apply during the Extended Term, except for ~~an additional period~~ the amount of ~~three~~ the Base Sublease Rent or any amount of tenant improvement allowance granted to Sublessee in connection with Sublessee’s occupancy. The Base Sublease Rent for the Extended Term shall be determined in accordance with subsection (~~3) years per Option (each such period may be referred to as the “Option Term”~~f), ~~as to the entire Premises as it then exists, upon and~~ below. The Extension Option is further subject to the following terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises.conditions: (b) ~~Tenant~~Sublessee must deliver its irrevocable written notice of Sublessee’s ~~election~~ exercise of the Extension Option (~~the~~ “~~Election~~ Exercise Notice”) to ~~exercise~~ Sublessor not earlier than March 31, 2021 nor later than May 31, 2021 (the ~~Option To Extend~~ “Exercise Date”). The Exercise Notice must be ~~given to Landlord~~ accompanied by (1) the unaudited financial statements of Sublessee for the most current fiscal quarter of Sublessee and for the eight (8) quarterly periods covered by the EBITDA Test specified in ~~writing no earlier than~~ subsection (c)(iv), below, provided if Sublessee is a public company throughout the ~~date which~~ relevant period, Sublessor shall rely on the filed financial statements of Sublessee and (2) Sublessee’s calculation of annual EBITDA for each year of the eight (8) quarterly periods covered by the EBITDA Test specified in subsection (c)(iv), certified as true and correct by Sublessee’s Chief Financial Officer, in the form of Schedule III attached hereto and incorporated herein by this reference. Time is ~~twelve (12) months prior~~ of the essence with respect to the ~~Expiration Date~~ time period during which Sublessee must deliver to Sublessor its Exercise Notice and ~~no later than the date which is six (6) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice~~other materials required hereunder, ~~then the Option to Extend shall be null and void~~and, ~~including~~therefore, if ~~more than one Option~~ Sublessee fails to give Sublessor its irrevocable Exercise Notice and deliver the financial statements, if delivery is ~~granted~~required, within the applicable time period provided above, the ~~then applicable~~ Extension Option ~~to Extend~~ shall expire and ~~all~~ be of no further ~~Options to Extend~~force or effect. (c) The ~~Option Term (and each Option Term, if more than one Option is granted)~~ following shall ~~commence immediately after the expiration~~ be conditions to Sublessee’s exercise of the ~~preceding Term~~ Extension Option: (i) Sublessee must not have caused or suffered a Monetary Default at any time during the term of the ~~Lease. Tenant’s leasing~~ Sublease; (ii) Sublessee must not have caused or suffered any Sublease Event of Default that is not a Monetary Default beyond any applicable cure period under the Sublease for the twenty-four (24) months preceding the Exercise Date; (iii) No Sublease Event of Default has occurred and is continuing under this Sublease at the date of delivery of the ~~Premises during~~ Exercise Notice to Landlord; (iv) Sublessee shall have maintained for the ~~Option Term shall be upon and subject~~ eight (8) fiscal quarters of filed, publicly available financial statements of Sublessee issued prior to March 31, 2021, an annual EBITDA of at least One Hundred Million Dollars ($100,000,00.00) for each year included in such period (the ~~same~~ “EBITDA Test”); and (v) Sublessee must comply with all the other terms and conditions ~~contained~~ of the Sublease related to the Extension Option, including delivery of the Additional Letter of Credit in the ~~Lease except that (i) Tenant shall pay the “Option Term Rent”, defined~~ amounts and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwisewhen required hereunder. (d) ~~The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate~~ Within ten (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (510) business days after ~~Landlord and Tenant agree~~ Sublessee delivers the Exercise Notice, Sublessor shall provide written confirmation as to whether the conditions to the ~~form~~ Extension Option have been met (the “Confirmation Notice”). If the conditions are not met, Sublessor will in the Confirmation Notice specify the reasons Sublessee has failed to meet the conditions to exercise of the ~~proposed amendment and Landlord shall execute it promptly after Tenant~~Extension Option. ~~Notwithstanding any of~~ If the ~~foregoing~~ Confirmation Notice confirms that the conditions to the ~~contrary~~Extension Option have been met, Sublessee will, as a further condition to the ~~failure~~ Extension Option, on or before July 15, 2021, deliver the Additional Letter of ~~Landlord to prepare such amendment or~~ Credit accompanied by (1) the filed, publicly available financial statements of ~~either party to execute an amendment shall not affect the validity and effectiveness of the extension~~ Sublessee for the ~~Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time~~ fiscal quarter issued prior to ~~commencement~~ July 15, 2021 and (2) Sublessee’s calculation of ~~the Option Term~~annual EBITDA showing an annual EBITDA for each year included in such period of at least One Hundred Million Dollars ($100,000,00.00), ~~to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant~~as certified as true and correct by Sublessee’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default CFO on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be form specified in Schedule III. Time is of the essence with respect to the time period during which Sublessee must deliver to Sublessor the Additional Letter of Credit and other materials required hereunder, and, therefore, if Sublessee fails to deliver the Additional Letter of Credit, the financial statements and its certificate within the applicable time period provided above, the Extension Option shall expire and be of no further force or effect. So long as all of the ~~provisions~~ conditions to the exercise of the Extension Option are met, within three (3) business days following the expiration of Sublessor’s Early Termination Right under the Master Lease, if there is no Sublease Event of Default, Sublessor will return the Termination Fee LC as directed by Sublessee. (e) If any of the conditions to the exercise of the Extension Option are not met, including, without limitation, the delivery of the Additional Letter of Credit as and when required hereunder and meeting the EBITDA Test in each case as provided above, then such Exercise Notice shall be of no effect, and this ~~Section~~Sublease shall expire at the end of the original Sublease Term thereof. (f) The Monthly Base Rent for the Extended Term shall be $312,072.17 per month. Tenant shall continue to pay all amounts of Additional Rent, including the Reimbursement, for the duration of the Sublease Term. (g) The Extension Option is personal to Sublessee and may not be assigned in connection with any assignment under this Lease and will not inure in favor of any sub-subtenant or assignee. (h) ~~This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d)~~ For purposes of the ~~Lease) all of Tenant’s right, title and interest under~~ foregoing the ~~Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and~~ following additional definitions shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.apply:

Appears in 1 contract

Samples: Sublease (Gymboree Corp)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the initial Term of the Lease for an additional period of ~~three~~ five (35) years ~~per Option~~ (~~each~~ such period may be referred to as the “"Option Term”"), as to the entire Premises as it may then ~~exists~~exist, upon and subject to the terms and conditions of this Section (the “"Option To Extend”"), and provided that at the time of exercise of ~~each Option~~ such right: (i) Tenant or an Affiliate which is an assignee of the Lease which has satisfied the requirements of Subsections 10.01(e) and (f) of this Lease must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises, except for sublease(s) in the aggregate not in excess of fifty percent (50%) of the Premises to Affiliate(s) which have satisfied the requirements of Subsections 10.01(e) and (f) of this Lease; and (ii) there has been no material adverse change in Tenant's financial position from such position as of the date of execution of the Lease, as certified by Tenant's independent certified public accountants and as supported by Tenant's certified financial statements, copies of which shall be delivered to Landlord with Tenant's written notice exercising its right hereunder. (b) Tenant’s 's election (the “"Election Notice”") to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is ~~twelve~~ fifteen (1215) months ~~prior to~~ before the Expiration Date and no later than the date which is ~~six~~ twelve (612) months ~~prior to~~ before the Expiration Date. If Tenant either fails or elects not to exercise ~~the~~ its Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void~~, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend~~. (c) The Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the ~~preceding~~ initial Term of the Lease. Tenant’s 's leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) ~~Tenant~~ the Monthly Base Rent shall ~~pay~~ be amended to an amount to equal the “"Option Term Rent”", defined and determined in the manner set forth in the immediately following ~~Subsection~~Subsection (and otherwise, Tenant shall continue to pay Rent Adjustments and other charges pursuant to the Lease and Tenant shall continue to pay directly the utility or service provider for all utilities or services which Tenant is to obtain directly pursuant to other provisions of the Lease); (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its ~~“as is”~~ "AS-IS" condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor~~, except~~ ; and (iii) there shall be no further option or right to extend the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination term of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commencesLease. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the ~~preceding~~ initial Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the ~~sum~~ greater of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the initial Term ~~preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease~~ (~~if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding~~ "Preceding Rent") (during the Option Term), ~~plus~~ Tenant shall continue to pay Rent Adjustments and other charges pursuant to the Lease ~~payable~~ and Tenant shall continue to ~~Landlord. To the extent that Tenant pays~~ pay directly the utility or service provider for all utilities or services which Tenant is to obtain directly pursuant to other provisions of the Lease~~, Tenant shall continue to pay such amounts~~, but such amounts shall not be counted as part of the Preceding Rent ~~or the Fair Market Rental Rate~~ as used herein) or (ii) the "Prevailing Market Rent". ~~Further~~As used herein Prevailing Market Rent shall mean the rent and all other monetary payments, escalations and triple net payables by Tenant, including consumer price increases, that Landlord could obtain from a third party desiring to lease the Premises for a term equal to the Option Term and commencing when the Option Term is to commence under market leasing conditions, and taking into account the following: the size, location and floor levels of the Premises, the type and quality of tenant improvements; age and location of the Project, quality of construction of the Project, services to be provided by Landlord or by tenant; the rent, all other monetary payments and escalations obtainable for new leases of space comparable to the Premises in the Project and in comparable buildings in the mid-Peninsula area, and other factors that would be relevant to such a third party in determining what such party would be willing to pay therefor, provided, however, that Prevailing Market Rent shall be determined without reduction or adjustment for "Tenant Concessions" (as defined below), if any, being offered to prospective new tenants of comparable space. For purposes of the preceding sentence, the term "Tenant Concessions" shall include, without limitation, so-called free rent, tenant improvement allowances and work, moving allowances, and lease takeovers. The determination of Prevailing Market Rent based upon the foregoing criteria shall be made by Landlord, in the ~~event that Landlord notifies Tenant that~~ good faith exercise of Landlord's business judgment. Within thirty (30) days after Tenant's exercise of the Option ~~Term Rent~~ To Extend, Landlord shall ~~equal ninety-five percent (95%)~~ notify Tenant of ~~the Preceding Rent, such~~ Landlord's determination ~~shall be conclusive and binding to set the Preceding Rent as the~~ of Option Term Rent for the ~~Option Term~~Premises. If Landlord's determination of Prevailing Market Rent is greater than the Preceding Rent, and if Tenant, in Tenant's sole discretion, disagrees with the amount of Prevailing Market Rent determined by Landlord, Tenant ~~shall not be entitled~~ may elect to ~~dispute or contest such determination,~~ revoke and rescind the ~~extension shall be effective and binding~~ exercise of the option by giving written notice thereof to Landlord within thirty (~~subject to Subsection (f~~30) ~~below). (e) Promptly~~ days after ~~final~~ notice of Landlord's determination of ~~the Fair~~ Prevailing Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to ExtendRent. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Lease Agreement (Phone Com Inc)

Option to Extend. ~~(a) Landlord hereby grants~~ Tenant shall have two (2) ~~consecutive~~ options ~~(individually an “Option” and collectively the “Options”)~~ to extend (the ---------------- "EXTENSION OPTIONS") the Initial Term of for consecutive five- (5) year periods (the ~~Lease for an additional period of three (3) years per Option (each such period may~~ foregoing option terms shall be referred to hereinafter sometimes as the “"OPTION TERMS"), by delivering a binding written notice of exercise to Landlord ("Extension Notice"), so that Landlord receives the EXTENSION NOTICE with respect to the first Option Term at least three hundred sixty (360) days prior to the end of the Initial Term and with respect to the second Option Term”, at least three hundred sixty (360) days prior to the end of the first Option Term. Tenant may exercise the Extension Options only if this Lease is in full force and effect and there is no uncured Event of Default, or any breach of Tenant's obligations under this Lease which with the passage of time or the giving of notice, or both, would constitute an Event of Default if not cured within any applicable cure period (an "Incipient Default"), ~~as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that~~ at the time of exercise of ~~each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee~~ the right of renewal or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior to the Expiration Date and no later than the date which is six (6) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time ~~Tenant exercises the Option to Extend or at the commencement~~ of ~~the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to~~ the commencement of the Option Term, ~~notwithstanding~~ but Landlord shall have the right at its sole discretion to waive the non-default conditions herein; provided, however, that ~~all such Defaults may subsequently be cured. (g) Without limiting~~ if an Event of Default or Incipient Default exists at the ~~generality of any provision~~ time Tenant exercises the Extension Option and Landlord does not elect to waive, Landlord shall provide written notice to Tenant of the existence and nature of such Event of Default or Incipient Default and Tenant shall be allowed an amount of time to cure such Event of Default or Incipient Default as is otherwise provided for curing defaults of that type under this Lease, ~~time~~ and, if timely cured, Tenant's exercise of the Extension Option shall be reinstated effective as of the ~~essence~~ time of exercise. The Initial Term, together with ~~respect~~ any Option Term, are referred to ~~all of~~ in this Lease as the ~~provisions of this Section~~"Term. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity."

Appears in 1 contract

Samples: Lease (Applied Micro Circuits Corp)

Option to Extend. Provided that Tenant is not in default hereunder either at the date Tenant's notice of exercise is given or on the date the Additional Term (aas defined below) ~~Landlord hereby grants~~ would otherwise commence, Tenant ~~two (2) consecutive options (individually an “Option” and collectively~~ shall have the ~~“Options”)~~ option to extend the Term ~~of the Lease for an~~ by one (1) additional period of three (3) years ~~per Option~~ (~~each such period may be referred~~ the "Additional Term"). The Additional Term shall commence, if at all, on the day after the Expiration Date and shall continue through the third (3rd) anniversary of the Expiration Date specified in Section I. above (as amended pursuant to ~~as the “Option Term”~~Section III. above, if applicable), ~~as to the entire Premises as it then exists, upon and~~ subject to ~~the terms~~ earlier termination as provided herein. Such option shall be exercised, if at all, by written notice to Landlord given at least nine (9) and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of no more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior to the Expiration Date of the initial Term. If Tenant is entitled to and ~~no later than~~ gives notice in the ~~date which is~~ manner and within the time set forth in this subsection A., then the Term shall be extended by the Additional Term, on all of the conditions set forth in this Lease for the original Term except as otherwise provided herein and except that: (1) Monthly Rental for the Additional Term shall be ninety-five percent (95%) of the fair market rental rate or rates for comparable (in terms of location, utility, age, appearance, and quality) buildings located within the general geographic location of the Project, as reasonably determined by Landlord. Landlord shall, upon receipt of Tenant's notice provided for above and at least six (6) months prior to the Expiration Date~~. If~~ , notify Tenant ~~either fails or elects not to exercise the Option to Extend by not timely giving~~ in writing of its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration determination of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage fair market rental rate or ~~proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent~~ rates for the ~~Term prior to the Option~~ Additional Term~~, but in no event shall the Security Deposit be decreased; and~~ . Within ten (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (3010) days after ~~final determination~~ such notice is given, Tenant may elect by written notice to Landlord either to (a) unequivocally accept such Monthly Rental as determined by Landlord for the Additional Term or (b) terminate this Lease as of the ~~Fair Market Rental Rate, may elect~~ Expiration Date. Tenant's failure to ~~provide,~~ make a written election strictly in ~~lieu of such allowance for alterations to~~ accordance with the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term preceding sentence shall be deemed to ~~mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum~~ be an acceptance of the Monthly ~~Base Rent at the Fair Market~~ Rental ~~Rate (~~as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made determined by Landlord, ~~in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise~~ EXCEPT that an equivocal acceptance of the ~~Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market~~ Monthly Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed ~~its cancellation~~ an election by Tenant to terminate the Lease as of the ~~Option~~Expiration Date; (2) The provisions of Section III. ~~In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant~~ and ~~Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty~~ Exhibit C of this Lease shall not apply; and (303) ~~days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate~~ There shall be ~~determined in accordance with~~ no further options to extend the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Office Lease (Newgen Results Corp)

Option to Extend. ~~(a) Landlord hereby grants Tenant two (2) consecutive options (individually an “Option” and collectively~~ Lessee shall have the ~~“Options”)~~ option to extend the Initial Term of ~~the~~ this Lease for ~~an additional~~ one (1) period of ~~three~~ five (35) ~~years per Option~~ years, commencing immediately following the expiration of the Initial Term (~~each~~ such period ~~may be~~ is referred to herein as the “Extended Term”, “Initial Term” and “Extended Term” are collectively referred to as ~~the~~ “~~Option~~ Term”), ~~as to the entire Premises as it then exists, upon~~ on all provisions contained in this Lease (except for Base Rent and ~~subject to the~~ such other terms and conditions as are specifically or by their operation limited to the Initial Term only and except that Lessee shall have no further right or option to extend the term upon the expiration of ~~this Section~~ the Extended Term), by giving notice of exercise of the option (the “Option To Extend”), and provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election (the “Election Notice”) to ~~exercise~~ Lessor at any time during the fifty-fourth (54th) month of the Initial Term. Lessor’s ability to plan for the orderly transaction of its rental business, to accommodate the needs of other existing and potential tenants, and to enjoy the benefits of increasing rentals at such times as Lessor is able to do so in its sole and absolute discretion, are fundamental elements of Lessor’s willingness to provide Lessee with the option to extend contained herein. Accordingly, Lessee hereby acknowledges that strict compliance with the notification provisions contained herein, and Lessee’s strict compliance with the time period for such notification contained herein, are material elements of the bargained for exchange between Lessor and Lessee and are material elements of Lessee’s consideration paid to Lessor in exchange for the grant of the option. Therefore, Lessee’s failure to adhere strictly and completely to the provisions and time frame contained in this provision shall render the option automatically null, void and of no further force or effect, without notice, acknowledgement, or any action of any nature or sort, required of Lessor. Lessee acknowledges that no other act or notice, other than the express written notice set forth hereinabove, shall act to put Lessor on notice of Lessee’s intent to extend, and Lessee hereby waives any claims to the contrary, notwithstanding any other actions of Lessee during the Initial Term of this Lease or any statements, written or oral, of Lessee to Lessor to the contrary during the Initial Term of this Lease. Notwithstanding the foregoing, if Lessee is in default (after the expiration of any applicable period for cure pursuant to Article 22 below) on the date of giving the Option ~~To Extend must~~ Notice, the Option Notice shall be ~~given~~ totally ineffective, or if Lessee is in default (after the expiration of any applicable period for cure pursuant to ~~Landlord in writing no earlier than~~ Article 22 below) on the date ~~which~~ the Extended Term is ~~twelve (12) months prior~~ to commence, in addition to any and all other remedies available to Lessor under this Lease, at Lessor’s election, the ~~Expiration Date and no later than~~ exercise of the ~~date which is six (6) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend~~ option shall be deemed null and void, the Extended Term shall not commence, and this Lease shall expire at the end of the Initial Term. The option to extend granted pursuant hereto is personal to original Lessee signatory to this Lease and cannot be assigned, transferred or conveyed to, or exercised for the benefit of, any other person or entity (voluntarily, involuntarily, by operation of law or otherwise) including, ~~if more than one Option is granted~~without limitation, to any assignee or subtenant permitted under Article 13, except in the ~~then applicable Option to Extend and all further Options to Extend.~~ event of a “Permitted Transfer” (~~c) The Option Term (and each Option Term, if more than one Option is granted)~~ as defined in Article 13). All of Lessee’s rights under this Article 3.b. shall ~~commence immediately after~~ terminate upon the expiration of the ~~preceding~~ Initial Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions sooner termination of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Net Office Lease (SourceForge, Inc)

Option to Extend. Provided that (ai) ~~Landlord hereby grants~~ Tenant has not assigned the Lease (except as otherwise permitted herein), and (ii) the Premises are not then subject to a sublease (whether the term of the sublease has commenced or is to be commenced thereafter) and Tenant will not be exercising the rights hereinafter set forth with the intent of assigning the Lease (except as otherwise permitted herein) or subleasing any portion of the Premises, then Tenant has the right to extend the Lease Term for two (2) ~~consecutive options~~ five (~~individually an “Option”~~ 5) year periods ("Extension Period") at the then current market rent rate, and ~~collectively~~ otherwise on the ~~“Options”)~~ same terms and conditions as this Lease, except that there shall be no further rights to extend the ~~Term~~ Lease Term. Tenant shall exercise the option for an Extension Period by written notice to Landlord not more than fifteen (15) months nor less than nine (9) months before the expiration of the Lease Term or, for purposes of the second Extension Period, not more than fifteen (15) months nor less than nine (9) months before the expiration of the first Extension Period. Tenant's exercise of this option shall be effective only if, at the time of notice and upon the effective date of the Extension Period, there is no Event of Default. Thereupon, this Lease shall be deemed extended for an additional period of ~~three~~ five (35) ~~years per Option (each such period may be referred to as the “Option Term”), as to the entire Premises as it then exists~~years, upon ~~and subject to~~ all of the same terms and conditions of this ~~Section~~ Lease and any Amendments made hereto with the exception of the annual rent stipulated hereinabove. Except in the event that shares of Tenant have been listed on a nationally-recognized stock exchange, or quoted on NASDAQ for a period of two (~~the “Option To Extend”), and provided that at the time of~~ 2) years prior to Tenant's exercise of ~~each Option Tenant must be in occupancy (and occupancy by a subtenant~~its option to renew the term of this Lease, ~~licensee or other party permitted or suffered by~~ Tenant~~, other than pursuant to the Maxygen Sublease, shall not satisfy such condition)~~ 's exercise of more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior to the Expiration Date and no later than the date which is six (6) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend this renewal option shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that void unless Landlord receives (i) ~~Tenant shall pay~~ simultaneously with the ~~“Option Term Rent”, defined~~ notice of exercise and ~~determined in the manner set forth in the immediately following Subsection;~~ (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days ~~after final determination~~ before the commencement of the ~~Fair Market Rental Rate~~Extension Period, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant~~’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent~~ 's certified financial statements for the ~~Premises. Tenant may, within fifteen~~ immediately preceding three (153) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Optionyear period. In the event ~~Tenant has delivered notice setting forth~~ Tenant~~’s different estimate,~~ 's auditors provide a "going concern" qualification (but ~~no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30~~not a "subject to" opinion) ~~days after Landlord’s receipt of~~ as to Tenant~~’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing~~ 's ability to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue ~~to pay such amounts, but such amounts shall not be counted~~ as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Ratea going concern, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after may nullify Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent 's exercise of this ~~Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section~~renewal option. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Lease Agreement (Dynasil Corp of America)

Option to Extend. ~~(a) Landlord hereby grants~~ Tenant ~~two (2) consecutive options (individually an “Option” and collectively~~ shall have the ~~“Options”)~~ right to extend the Term of the Lease for an all of the Premises, including any space leased by Tenant pursuant to Addendum 7 below or otherwise, for one (1) additional period of three (3) years ~~per Option~~ (~~each such period may be referred to as~~ the ~~“Option~~ "Second Additional Term”"), ~~as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and~~ provided that (a) Tenant is not in default under any provision of the Lease at the time of exercise ~~of each Option Tenant must be in occupancy (~~and ~~occupancy by a subtenant~~at the time the Second Additional Term would otherwise commence, ~~licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises.~~ (b) Tenant has not assigned the Lease or subleased without Landlord's consent all or any portion of the Premises or subleased with Landlord's consent more than fifteen percent (15%), in the aggregate, of the net rentable area of the Premises, in each case both at the time of exercise and at the time the Second Additional Term would otherwise commence, and (c) Tenant~~’s election (the “Election Notice”) to exercise the Option To Extend must be given~~ 's financial statements are acceptable to Landlord ~~in writing no earlier than~~ both at the ~~date which is twelve~~ time of exercise and at the time the Second Additional Term would otherwise commence. Accordingly, concurrently with the exercise by Tenant of the foregoing option, and within thirty (1230) ~~months~~ days prior to the ~~Expiration Date~~ date the second Additional Term would otherwise commence, Tenant shall deliver to Landlord its most recent audited financial statements, including a balance sheet and ~~no later than~~ income statement, or a document in which Tenant states that its books are not independently audited and unaudited financial statements, including a balance sheet and income (i) Upon receipt of the ~~date which~~ Extension Notice, Landlord shall prepare and deliver to Tenant an amendment to this Lease (the "Extension Amendment") or, if Landlord is ~~six~~ then utilizing a form of lease different from this Lease, Landlord shall deliver to Tenant a new lease (~~6) months prior~~ the "New Lease"). The Extension Amendment or New Lease shall provide for a Monthly Rental equal to the ~~Expiration Date. If Tenant either fails or elects not~~ fair market rental for the Premises (taking into consideration the amount of tenant improvements required), determined by Landlord according to ~~exercise~~ the ~~Option to Extend by not timely giving its Election Notice,~~ rental then being charged for comparable space in the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration general geographic area of the ~~preceding Term of~~ building, including the ~~Lease. Tenant’s leasing of the Premises during the Option Term~~ Irvine Spectrum area, and shall otherwise be ~~upon and subject to~~ on the same terms and conditions ~~contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner~~ set forth in ~~the immediately following Subsection;~~ this Lease (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent ~~tenants leasing space in Comparable Transactions receive an allowance pursuant to~~ that the ~~definition~~ form of ~~Fair Market Rental Rate defined in Exhibit B hereto~~the New Lease differs from the form of this Lease). (ii) Tenant shall execute the Extension Amendment or New Lease, ~~provided~~as the case may be, ~~however, Landlord by notice given to Tenant~~ within thirty (30) days after ~~final determination~~ receipt of the ~~Fair Market Rental Rate, may elect~~ same and return it to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commencesLandlord. If Tenant ~~timely~~ fails to execute and ~~properly exercises~~ return the ~~Option To Extend~~same to Landlord, ~~references in~~ the ~~Lease to the Term~~ option shall be deemed lapsed and of no further force or effect and Landlord shall be free to ~~mean~~ lease the ~~preceding Term~~ Premises to a third party as ~~extended by~~ provided in the ~~Option Term unless the context clearly requires otherwise~~foregoing sentence. (diii) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up option granted herein is granted solely to ~~change the base year~~ Tenant and is not assignable or ~~base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant~~ transferable and any attempt to ~~the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent~~ assign or transfer this option shall be ~~made by Landlord, in the good faith exercise of Landlord’s business judgment~~ void and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect~~: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section~~. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Lease (Sparta Inc /De)

Option to Extend. ~~(a)~~ Landlord ~~hereby~~ grants to Tenant ~~two (2) consecutive~~ the options (~~individually~~ each, an “Option~~” and collectively the “Options~~”) to extend the Term of ~~the~~ this Lease for an three (3) additional ~~period~~ terms of three (3) years ~~per Option~~ each (~~each such period may be referred to as the~~ each, an “Option Term”)~~, as~~ . The Option applies to the ~~entire Premises as it then exists~~Premises, ~~upon~~ including the “Expansion Space” (pursuant to Section 41 below) or the “Potential Offering Space” (pursuant to Section 42 below), if applicable, and is expressly made subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises.following conditions: (b1) Notice of Tenant’s election ~~(the “Election Notice”)~~ to exercise ~~the~~ an Option ~~To Extend~~ must be given to Landlord ~~in writing~~ no earlier than ~~the date which is twelve~~ eighteen (1218) months and no later than nine (9) months prior to the Expiration Date ~~and no later than~~ of the ~~date which is six (6) months prior to~~ Initial Term, the ~~Expiration Date~~first Option Term or the second Option Term, as applicable. If Tenant ~~either fails or elects~~ does not timely notify Landlord, it shall be conclusively presumed that Tenant has waived its right to exercise the respective Option and Landlord may thereafter lease the Premises to ~~Extend by not timely giving its Election Notice, then~~ any third parties upon such terms and conditions as Landlord shall elect and Tenant shall have no further rights with respect to the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after Premises following the expiration of the ~~preceding Term of~~ Initial Term, the ~~Lease. Tenant’s leasing of the Premises during the~~ first Option Term ~~shall be upon and subject to~~ or the ~~same terms and conditions contained in~~ second Option Term, as applicable. (2) In the ~~Lease except that (i)~~ event Tenant shall ~~pay~~ fail to exercise the “respective Option ~~Term Rent”, defined and determined~~ in the manner set forth in this section, Tenant shall have no further rights to extend the ~~immediately following Subsection;~~ Initial Term (~~ii) the Security Deposit shall be increased to an amount that is the same percentage~~ or ~~proportion of~~ first Option Term ~~Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the~~ or second Option Term, ~~but in no event shall the Security Deposit be decreased; and (iii~~as applicable) ~~Tenant shall accept the Premises in its “as is” condition without any obligation~~ of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwisethis Lease. (d3) ~~The~~ Each Option ~~Term Rent~~ granted hereunder shall ~~mean~~ be upon the ~~sum of~~ same terms and conditions as are set forth in this Lease except that the ~~Monthly~~ annual Base Rent ~~at the Fair Market Rental Rate~~ during each year of any one (~~as defined in Exhibit B~~1) ~~plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year~~ or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and more Option ~~Term Rent~~ Terms shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver equal to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the Fair Market Rent for comparable space in a comparable building within the master-planned community known as “~~Preceding Rent~~Centerra” ~~(defined below)~~or in any other comparable master-planned community situated in northern Colorado. The ~~Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable~~ methodology for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or determining the Fair Market ~~Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the~~ Rent during each Option Term ~~Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination~~ shall be ~~conclusive and binding to set~~ the ~~Preceding Rent~~ same as the ~~Option Term~~ methodology for determining the Fair Market Rent for the ~~Option Term, Tenant shall not be entitled~~ “Expansion Space” pursuant to ~~dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f)~~ Section 41.2 below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Lease (Constant Contact, Inc.)

Option to Extend. (a) ~~Landlord hereby grants~~ Tenant ~~two~~ shall have the right to renew the initial Term of this Lease for one (21) ~~consecutive options~~ renewal term commencing on the day following the last day of the Initial Term and ending and expiring on October 31, 2025 (~~individually an “Option” and collectively~~ the “~~Options”) to extend the Term of the Lease for an additional period of three (3) years per Option (each such period may be referred to as the “Option~~ Renewal Term”), as by delivering written notice of the exercise thereof to Landlord not earlier than fifteen (15) months nor later than nine (9) months before the ~~entire Premises as it then exists~~expiration of the Initial Term, TIME BEING OF THE ESSENCE. Tenant’s right to renew this Lease is conditioned upon ~~and subject to~~ the ~~terms and conditions of this Section~~ following requirements: (i) Tenant is the ~~“Option To Extend”), and provided that~~ originally named Tenant hereunder at the time of such exercise and at the commencement of ~~each Option~~ the Renewal Term (for purposes of this Article, the term “Tenant” shall mean and refer only to the originally-named Tenant ~~must be~~ under the Lease); (ii) no default exists either at the time of such exercise or at the commencement of the Renewal Term; (iii) Tenant is occupying, and using for its own business, all or substantially all of the Premises at the time of such exercise and upon the commencement of the Renewal Term; and (iv) Tenant’s written notice of such exercise is accompanied by the most recent financial statements of Tenant in ~~occupancy~~ the form prescribed by the Landlord. Tenant shall lease the Premises during the Renewal Term in its then‑current “AS-IS” condition, and Landlord shall have no obligation to perform any work to the Premises to prepare the Premises for Tenant’s use and occupancy, or to provide Tenant with any allowances (e.g., moving allowance, construction allowance, and ~~occupancy by a subtenant, licensee~~ the like) or other ~~party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises~~tenant inducements. (b) ~~Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given~~ The Annual Base Rent payable by Tenant to Landlord ~~in writing no earlier than~~ during the ~~date which is twelve (12) months prior to~~ first year of the Expiration Date and no later than the date which is six (6) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend Renewal Term shall be ~~null~~ two and ~~void, including, if more than one Option is granted,~~ one-half (2.5%) percent above the then ~~applicable Option to Extend~~ escalated Annual Base Rent payable by Tenant during the last year of the Initial Term and ~~all further Options to Extend~~such Annual Base Rent shall escalate and increase thereafter annually during the Renewal Term by two and one-half (2.5%) percent during each year of the Renewal Term. (c) ~~The Option Term (~~Landlord and ~~each Option Term, if more than one Option is granted)~~ Tenant shall ~~commence immediately after the expiration~~ promptly execute an amendment to this Lease evidencing any extension of the ~~preceding~~ Term and the determination of Base Rent for the ~~Lease.~~ Renewal Term pursuant to this Article, but no such amendment shall be necessary in order to make the provisions of this Article effective. (d) Tenant’s ~~leasing~~ right to renew this Lease shall automatically terminate if: (i) this Lease or Tenant’s right to possession of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsectionis terminated; (ii) Tenant assigns its interest in this Lease or sublets any portion of the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreasedPremises; ~~and~~ (iii) if Tenant ~~shall accept~~ is in default of any of the ~~Premises in its “as is” condition without any obligation~~ terms or conditions of ~~Landlord to repaint~~this Lease or (iv) if, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days ~~after final determination~~ of its receipt of the ~~Fair Market Rental Rate~~required financial statements, ~~may elect to provide~~Landlord determines, in ~~lieu~~ its sole but reasonable discretion, that the financial condition or creditworthiness of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, materially deteriorated since the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below)date hereof. (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend[Intentionally omitted.] (f) ~~Upon~~ Tenant shall have no further right to extend the ~~occurrence of any~~ Term following the expiration of the ~~following events~~Renewal Term. (g) Except as set forth in this Article, ~~Landlord~~ this Lease and all the covenants, agreements, terms, provisions and conditions thereof shall ~~have~~ remain in effect during the ~~option, exercisable at any time prior to commencement of the Option~~ Renewal Term, including, without limitation, Tenant’s obligation to ~~terminate all of~~ pay Additional Rent and electricity charges as provided in the ~~provisions of this Section with respect~~ Lease. (h) All notices, mailings and documents to ~~the Option to Extend~~be given, ~~whereupon any prior or subsequent exercise of this Option to Extend~~ executed and/or delivered by Landlord and/or Tenant hereunder shall be ~~of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend~~ given, executed and/or delivered in ~~strict~~ accordance with the provisions of Article 15 of this ~~Section. (ii) The existence at~~ Lease and same must be given within the time ~~Tenant exercises the Option to Extend or at the commencement~~ periods set forth in this Article, with time being of the ~~Option Term of a Default on the part of Tenant under the Lease~~essence. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Lease (Radius Health, Inc.)

Appears in 1 contract

Samples: Credit Agreement (Laureate Education, Inc.)

Option to Extend. (a) Landlord hereby grants Tenant ~~two~~ a single option (~~2) consecutive options (individually an “~~"Option~~” and collectively the “Options”~~") to extend the initial Term of the Lease for an additional period of three (3) years ~~per Option~~ (~~each~~ such period may be referred to as the “"Option Term”"), as to the entire Premises as it may then ~~exists~~exist, upon and subject to the terms and conditions of this Section (the “"Option To Extend”"), and provided that at the time of exercise of ~~each Option~~ the option: (i) Tenant or a Permitted Transferee must be in occupancy of at least seventy-five percent (75%) of the Premises; and ~~occupancy by a subtenant~~(ii) there has been no material adverse change in Tenant's financial position from such position as of the date of execution of the Lease, ~~licensee or other party permitted or suffered~~ as certified by Tenant, ~~other than pursuant~~ and as supported by Tenant's certified financial statements prepared by Tenant's independent certified public accountants, copies of which shall be delivered to Landlord with Tenant's written notice exercising its option hereunder. Without limiting the ~~Maxygen Sublease, shall not satisfy such condition) of more than 75%~~ generality of the ~~Rentable Area of~~ foregoing, Landlord may reasonably conclude there has been a material adverse change if Tenant does not certify there has been no such change and provide the ~~entire Premises~~supporting financial statements. (b) Tenant’s 's election (the “"Election Notice”") to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior ~~to the Expiration Date~~ to, and no later than the date which is ~~six~~ nine (69) months prior to to, the Expiration ~~Date~~Date . If Tenant either fails or elects not to exercise the then applicable Option to Extend by not timely giving its Election Notice, then ~~the~~ such Option to Extend shall be null and void~~, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend~~. (c) The Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the preceding initial Term ~~of the Lease~~or Option Term, as applicable. Tenant’s 's leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except ~~that~~ that: (i) ~~Tenant~~ the Monthly Base Rent shall ~~pay~~ be amended to an amount to equal the “"Option Term Rent”", defined and determined in the manner set forth in the immediately following ~~Subsection~~Subsection (and otherwise, Tenant shall continue to pay Rent Adjustments, all other Rent and all other charges pursuant to the Lease and Tenant shall continue to pay directly the utility or service provider for all utilities or services which Tenant is to obtain directly pursuant to other provisions of the Lease); (ii) the Security ~~Deposit~~ Deposit, if any, shall be increased within fifteen (15) days after the Fair Market Rental Rate (defined below) has been determined to ~~an amount that is~~ equal five hundred percent (500%) of the ~~same percentage or proportion~~ highest monthly installment of ~~Option Term~~ Monthly Base Rent ~~as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term~~thereunder, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its ~~“as is”~~ "AS-IS" condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the ~~preceding~~ initial Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the ~~sum~~ greater of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the initial Term ~~preceding~~ (respectively, the ~~Option Term plus the Rent Adjustments payable by Tenant under the Lease~~ "Preceding Rent") (~~if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding~~ during the Option Term), ~~plus~~ Tenant shall continue to pay Rent Adjustments and other charges pursuant to the Lease ~~payable~~ and Tenant shall continue to ~~Landlord. To the extent that Tenant pays~~ pay directly the utility or service provider for all utilities or services which Tenant is to obtain directly pursuant to other provisions of the Lease~~, Tenant shall continue to pay such amounts~~, but such amounts shall not be counted as part of the Preceding Rent as used herein) or (ii) the "Fair Market Rental Rate". "Fair Market Rental Rate" shall mean as to Monthly Base Rent the monthly net rental (exclusive of expenses and taxes) per rentable square foot which a tenant would pay and which a willing landlord would accept for first class office and laboratory space comparable to the Premises in the Project for the period for which such rental is to be paid and for a lease on terms substantially similar to those of the Lease (including, without limitation, those applicable to Taxes, Operating Expenses and exclusions, but also considering so-called net and triple net leases, and leases utilizing operating expense stops or base years, and making appropriate adjustment between such leases and this Lease, as described below), based on prevailing market conditions in the Project at the time such determination is made ("Comparable Transactions"). Without limiting the generality of the foregoing, Comparable Transactions shall be for a term similar to the term of tenancy and for space comparable in use, floor layout and levels (if the Building has more than one level), square footage and location within the Project as the transaction for which Fair Market Rental Rate ~~as used herein. Further~~is being determined; however, ~~in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%)~~ leases of ~~the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant~~ unusual or odd shaped spaces shall not be ~~entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final~~ considered. In any determination of ~~the~~ Fair Market Rental Rate, ~~Landlord~~ the stated or contract monthly net rental in Comparable Transactions shall ~~prepare a memorandum confirming~~ be appropriately adjusted to take into account the ~~specific dates, amounts and terms of the extension for the Option Term in accordance with the~~ different terms and conditions ~~of this Option to Extend,~~ prevailing in ~~the form of an amendment to~~ such transactions and those present in the Lease, including, without limitation: (1) the extent to which average annual expenses and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term taxes per rentable square foot payable by tenants in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Comparable Transactions vary from those payable by Tenant under the Lease. ; (~~iii~~2) ~~Tenant’s third Default~~ the concessions, if any, being given by the landlord in Comparable Transactions, such as presence or absence of parking charges, abatement of any such charges, rental abatement periods, loans at below-market interest rates, moving allowances, space planning allowances, lease takeover payments and work allowances, as compared to any tenant improvement, refurbishment or repainting allowance given to Tenant under the Lease ~~prior~~ for the space for which Fair Market Rental Rate is being determined; (3) the brokerage commissions, fees and bonuses payable by landlords in Comparable Transactions (whether to tenant's agent, such landlord or any person or entity affiliated with such landlord), as compared to any such amounts payable by Landlord to any recognized broker(s) on account of the transaction for which Fair Market Rental Rate is being determined; (4) the time value of money; and (5) any material difference between the definition of rentable area and the ratio of project rentable to useable square feet in Comparable Transactions, as compared to such figures applicable to the ~~commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured~~space for which Fair Market Rental Rate is being determined. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Lease Agreement (Argonaut Technologies Inc)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the initial Term of the Lease for an additional period of ~~three~~ five (35) years ~~per Option~~ (~~each~~ such period may be referred to as the “Option Term”), as to the entire Premises as it may then ~~exists~~exist, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of ~~each Option~~ such right: (i) Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises; and (ii) there has been no material adverse change in Tenant’s financial position from such position as of the date of execution of the Lease, as certified by Tenant’s independent certified public accountants, and as supported by Tenant’s certified financial statements, copies of which shall be delivered to Landlord with Tenant’s written notice exercising its right hereunder. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no ~~earlier than the date which is twelve (12) months prior to the Expiration Date and no~~ later than the date which is ~~six~~ nine (69) months ~~prior to~~ before the Expiration Date. If Tenant either fails or elects not to exercise ~~the~~ its Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void~~, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend~~. (c) The Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the ~~preceding~~ initial Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except ~~that~~ that: (i) ~~Tenant~~ the Monthly Base Rent shall ~~pay~~ be amended to an amount to equal the “Option Term Rent”, defined and determined in the manner set forth in the immediately following ~~Subsection~~Subsection (and otherwise, Tenant shall continue to pay Rent Adjustments, all other Rent and all other charges pursuant to the Lease); (ii) the Security ~~Deposit~~ Deposit, if any, shall be increased within fifteen (15) days after the Prevailing Market Rent has been determined to ~~an amount that is~~ equal one hundred percent (100%) of the ~~same percentage or proportion~~ highest monthly installment of ~~Option Term~~ Monthly Base Rent ~~as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term~~thereunder, but in no event shall the Security Deposit be decreased; ~~and~~ (iii) Tenant shall accept the Premises in its “~~as is~~AS-IS” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor~~, except~~ ; and (iv) there shall be no further option or right to extend the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination term of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commencesLease. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the ~~preceding~~ initial Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the ~~sum~~ “Prevailing Market Rent” (defined below). As used herein, “Prevailing Market Rent” shall mean the base rent and all other monetary payments and escalations, including consumer price increases, payable by a tenant that Landlord could obtain from a third party desiring to lease the Premises for a term equal to the Option Term and commencing when the Option Term is to commence under market leasing conditions, and taking into account the following: the size, location and floor levels of the ~~Monthly Base Rent at~~ Premises; the ~~Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation~~ type and quality of ~~Operating Expenses in connection with determination~~ tenant improvements; age and location of the ~~Fair Market Rental Rate) plus~~ Project; quality of construction of the Project; services to be provided by Landlord or by tenant; the rent, all other ~~charges pursuant~~ monetary payments and escalations obtainable for new leases of space comparable to the ~~Lease payable~~ Premises in the Project and in comparable buildings in the surrounding geographic submarkets, and other factors that would be relevant to ~~Landlord~~such a third party in determining what such party would be willing to pay therefor. The determination of ~~Fair~~ Prevailing Market ~~Rental Rate and Option Term~~ Rent based upon the foregoing criteria shall be made by Landlord, in the good faith exercise of Landlord’s business ~~judgment and in accordance with Exhibit B attached hereto~~judgment. Within ~~forty-five~~ thirty (4530) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of ~~the Fair Market Rental Rate and~~ Option Term Rent for the Premises. If Tenant, in Tenant’s sole discretion, disagrees with the amount of Prevailing Market Rent determined by Landlord, Tenant ~~may, within fifteen (15) days after receipt thereof, deliver~~ may elect to revoke and rescind the exercise of the option by giving written notice thereof to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after notice of Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of ~~the Fair~~ Prevailing Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to ExtendRent. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Office Lease (National Mercantile Bancorp)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the Second Extended Term of the Lease for an additional period of ~~three~~ one (31) ~~years per Option~~ year (~~each~~ such period may be referred to as the “Option Term”), as to the entire Premises as it may then ~~exists~~exist, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of ~~each Option~~ such right: (i) Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises; and (ii) Tenant then has a liquid net worth of no less than Forty Million Dollars ($40,000,000.00), and such determination of liquid net worth shall count as assets of Tenant only cash, cash equivalents and liquid investments, and such determination shall be certified by Tenant’s Chief Financial Officer, and supported by Tenant’s financial statements, copies of which shall be delivered to Landlord with Tenant’s written notice exercising its right hereunder. Such supporting financial statements to be delivered to Landlord shall consist of Tenant’s audited financial statements for the most-recent, completed fiscal year, and Tenant’s financial statements for all fiscal quarters completed after the end of the most-recent, completed fiscal year and before the date of Tenant’s Election Notice, with the financial statements for the most-recent, completed quarter certified by Tenant’s Chief Financial Officer. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is ~~twelve~~ six months (126) months ~~prior to~~ before the Expiration Date and no later than the date which is ~~six~~ three (63) months ~~prior to~~ before the Expiration Date. If Tenant either fails or elects not to exercise ~~the~~ its Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void~~, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend~~. (c) The Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B A hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit BA) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business ~~judgment and in accordance with Exhibit B attached hereto~~judgment. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (fg) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below).A. (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) This Option to Extend is personal to Maxygen, Inc. and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any person or entity except an assignee of the Lease which is a Tenant Affiliate and has satisfied the requirements of Article Ten of the Lease applicable to a Tenant Affiliate. (g) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, ~~whereupon~~ with the effect of canceling and voiding any prior or subsequent exercise of so this Option to Extend ~~shall be~~ is of no force or effect: (i) Tenant’s failure to timely exercise ~~or timely to perform~~ the Option to Extend in ~~strict~~ accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend ~~or at the commencement~~ of ~~the Option Term of a Default~~ any default on the part of Tenant under the ~~Lease~~Lease or of any state of facts which with the passage of time or the giving of notice, or both, would constitute such a default. (iii) Tenant’s third ~~Default~~ default under the Lease prior to the ~~commencement of~~ time Tenant exercises the Option ~~Term~~to Extend, notwithstanding that all such ~~Defaults~~ defaults may subsequently be cured. (gh) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Lease (Maxygen Inc)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the initial Term of the Lease for an additional period of ~~three~~ five (35) years ~~per Option~~ (~~each~~ such period may be referred to as the “"Option Term”"), as to the entire Premises as it may then ~~exists~~exist, upon and subject to the terms and conditions of this Section (the “"Option To Extend”"), and provided that at the time of exercise of ~~each Option~~ such right: (i) Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises; and (ii) there has been no material adverse change in Tenant's financial position from such position as of the date of execution of the Lease, as certified by Tenant's independent certified public accountants, and as supported by Tenant's certified financial statements, copies of which shall be delivered to Landlord with Tenant's written notice exercising its right hereunder. (b) Tenant’s 's election (the “"Election Notice”") to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is ~~twelve~~ two hundred and seventy (12270) ~~months prior to~~ days before the Expiration Date and no later than the date which is ~~six~~ one hundred and eighty (6180) ~~months~~ days prior to the Expiration Date. If Tenant either fails or elects not to exercise ~~the~~ its Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void~~, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend~~. (c) The Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the ~~preceding~~ initial Term of the Lease. Tenant’s 's leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) ~~Tenant~~ the Basic Annual Rent pursuant to the Lease shall ~~pay~~ be amended to equal the “"Option Term Basic Annual Rent”", defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall not be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreasedreduced; ~~and~~ (iii) Tenant shall accept the Premises in its “"as is” " condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor~~, except~~ ; and (iv) there shall be no further option or right to extend the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination term of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commencesLease. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the ~~preceding~~ initial Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Lease Agreement (Advanced Polymer Systems Inc /De/)

Option to Extend. (a) Landlord and Tenant confirms that the Option to Extend with respect to 000 Xxxxxxxxxx Xxxxx (as set forth in Section 26.21 of the Original Lease, as amended by Section 3 of the Fourth Amendment) continues to be in effect. As provided in Sections 3 and 7(b)(iii) above, the following Options to Extend are terminated: (i) the Option to Extend with respect to the 200 & 220 Penobscot Space (as set forth in Section 26.21 of the Original Lease), (ii) the Option to Extend with respect to the Building 2 Space (as set forth in Section 26.21 of the Original Lease, as amended by Section 8 of the Third Amendment), and (iii) the Option to Extend with respect to the 640 Galveston Space (as set forth in Section 26.21 of the Original Lease, as amended by Section 7 of the Second Amendment). (b) Landlord hereby grants Tenant two (2) consecutive options (individually an “Option” and collectively the “Options”) to extend the Term of the Lease for an additional period of ~~three~~ five (35) years per Option (each such period may be referred to as the “Option Term”), as to the ~~entire~~ portion of the Premises consisting of the 200 & 220 Penobscot Space, Building 2 Space and 101 Saginaw Space (all references in this Section 12 to the “Premises” shall instead be deemed to mean such space only), as it may then ~~exists~~exist, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of ~~each Option~~ the applicable Option: (i) Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises; and (ii) there has been no material adverse change in Tenant’s financial position from such position as of the date of execution of the Lease, as certified by Tenant’s independent certified public accountants, and as supported by Tenant’s certified financial statements, copies of which shall be delivered to Landlord with Tenant’s written notice exercising its right hereunder. (bc) Tenant’s election (the “Election Notice”) to exercise ~~the~~ an Option ~~To Extend~~ must be given to Landlord in writing no earlier than the date which is twelve months (12) months ~~prior to~~ before the ~~Expiration Date~~ expiration of the then-current Term and no later than the date which is ~~six~~ nine (69) months ~~prior to~~ before the ~~Expiration Date~~expiration of the then-current Term. If Tenant either fails or elects not to exercise ~~the~~ an Option ~~to Extend~~ by not timely giving its Election Notice, then the Option to Extend shall be null and void, ~~including, if more than one Option is granted,~~ including the then applicable Option ~~to Extend~~ and all further ~~Options to Extend~~Options. (cd) ~~The~~ Each Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during ~~the~~ an Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) the Monthly Base Rent, plus payment of Tenant’s Share of Operating Expenses pursuant to the Lease (in addition to all expenses paid directly by Tenant to the utility or service provider, which direct payments shall ~~pay~~ continue to be Tenant’s obligation) shall be amended to equal the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security ~~Deposit~~ Deposit, if any, shall be increased within fifteen (15) days after the Prevailing Market Rent has been determined to ~~an amount that is~~ equal one hundred percent (100%) of the ~~same percentage or proportion~~ highest monthly installment of ~~Option Term~~ Monthly Base Rent ~~as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term~~thereunder, but in no event shall the Security Deposit be decreased; ~~and~~ (iii) Tenant shall accept the Premises in its “~~as is~~AS-IS” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor; and (iv) following the exercise o the second Option, ~~except~~ there shall be no further option or right to extend the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination term of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commencesLease. If Tenant timely and properly exercises ~~the Option To Extend~~an Option, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Lease (Codexis Inc)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the Term of the Lease for an additional period of ~~three~~ five (35) years ~~per Option~~ (~~each~~ such period may be referred to as the “Option Term”), as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of such option (and each Option, if more than one Option is granted): (i) Tenant must be conducting regular, active, ongoing business in, and be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by ~~Tenant, other than pursuant to the Maxygen Sublease,~~ Tenant shall not satisfy such condition) of ~~more~~ not less than ~~75%~~ two (2) floors of the ~~Rentable Area~~ Premises; and (ii) there has been no material adverse change in Tenant’s financial position from such position as of the ~~entire Premises~~date of execution of the Lease. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is ~~twelve~~ fifteen (1215) months prior to the Expiration Date and no later than the date which is ~~six~~ twelve (612) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except ~~that~~ that: (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security ~~Deposit~~ shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security ~~Deposit~~ was in relation to Rent for the Term prior to the Option Term~~, but in no event shall the Security Deposit be decreased~~; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B D hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit BD) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business ~~judgment and in accordance with Exhibit B attached hereto~~judgment. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) business days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its ~~cancellation of~~ election under (i) in the ~~Option~~immediately preceding sentence. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. D. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the ~~Preceding Rent or the~~ Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within ~~five~~ fifteen (515) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the ~~Lease~~Lease or of any state of facts which with the passage of time or the giving of notice, or both, would constitute such a Default. (iii) Tenant’s third monetary Default with a value of $25,000 or more under the Lease within thirty-six (36) months prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) Xoom and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or ~~entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to~~ entity except an Affiliate that satisfies the ~~benefit~~ terms and conditions of ~~and be personal to no more than only a single person or entity~~Section 10.01(e) of the Lease.

Appears in 1 contract

Samples: Office Lease (XOOM Corp)

Option to Extend. Provided that Landlord has not given notice of a material default which remains uncured on the part of Tenant, either at the time of exercise of the Option to Extend (aas hereinafter defined) ~~Landlord hereby grants~~ or at the time the extended Term commences, Tenant ~~two~~ shall have the option to extend (~~2) consecutive options (individually an~~ “~~Option” and collectively the “Options~~Option to Extend”) ~~to extend~~ the Initial Term of ~~the~~ this Lease for an one (1) additional period of three (3) years ~~per~~ (“First Option Period”) followed by one (~~each such~~ 1) additional period ~~may be referred to as the~~ of two (2) years (“Second Option ~~Term”), as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “Option To Extend~~Period”), and except as may be expressly provided otherwise herein, on the same terms, covenants and conditions provided herein, except that at upon the ~~time of~~ exercise of ~~each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy~~ such condition) of more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior to the Expiration Date and no later than the date which is six (6) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend ~~by not timely giving its Election Notice, then~~ the ~~Option to Extend~~ Monthly Rent due shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-ninety five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate (as ~~used herein. Further~~hereinafter defined); provided, in however, the ~~event that Landlord notifies Tenant that~~ Monthly Rent payable during the First Option ~~Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive~~ Period and ~~binding to set the Preceding Rent as the~~ Second Option ~~Term Rent for the Option Term, Tenant~~ Period shall not be ~~entitled~~ less than the Monthly Rent payable during the immediately preceding month of the Initial Term or First Option Period, as applicable. In addition, there shall be no broker’s commission payable by Landlord other than as agreed to ~~dispute~~ by Landlord in writing; i.e. no commission shall be payable as a result of Tenant’s election to exercise its Option to Extend. Tenant shall exercise its Option to Extend for the First Option Period and Second Option Period by giving Landlord written notice (“Option Notice”) of its election to extend the Lease at least nine (9) months prior to the expiration of the Initial Term, or ~~contest such determination~~the First Option Period, as applicable, and the ~~extension~~ failure by Tenant to give Landlord such Option Notice shall ~~be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of~~ render the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this applicable Option to Extend ~~shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section~~null and void. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Office Lease (Annie's, Inc.)

Option to Extend. ~~(a) Landlord hereby grants Tenant two (2) consecutive options (individually an “Option” and collectively~~ Lessee shall have the ~~“Options”)~~ right, subject to the provisions hereinafter provided, to extend the ~~Term~~ term of ~~the~~ this Lease for ~~an additional~~ one (1) period of ~~three~~ five (35) years ~~per Option (each such~~ on the terms and provisions of this Article. Such five-year renewal period ~~may be~~ is sometimes herein referred to as the ~~“Option~~ "Renewal Term”)". The conditions of such Renewal Term shall 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, ~~as to the entire Premises as it then exists, upon and subject to the terms~~ 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 ~~Section (the “Option To Extend”)~~Lease, ~~and provided that~~ at the time of exercise of ~~each Option Tenant must be in occupancy (and occupancy by a subtenant~~the right of renewal, ~~licensee or other party permitted or suffered by Tenant, other than pursuant~~ but Lessor shall have the right at its sole discretion to waive the ~~Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises~~non-default conditions herein. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior to the Expiration Date and no later than the date which is six (6) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option That such Renewal Term shall be ~~upon and subject to~~ on the same ~~terms~~ terms, covenants and conditions ~~contained~~ as in ~~the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection~~this Lease; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, ~~Landlord by notice given to Tenant within thirty (30) days after final determination of~~ the ~~Fair Market Rental Rate, may elect to provide, in lieu of~~ annual Base Rent for such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Renewal Term shall be ~~deemed~~ an amount equal to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the ~~“Preceding Rent”~~ fair market rental rate for such space on the date such renewal term shall commence in relation to comparable (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicablein quality, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%location and size) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare space located within a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) ~~business days after Landlord and Tenant agree to the form~~ mile radius of the ~~proposed amendment and Landlord shall execute it promptly after Tenant~~Property. ~~Notwithstanding any~~ The determination of ~~the foregoing to the contrary, the failure of Landlord to prepare~~ such ~~amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension~~ fair market rental rate for the ~~Option Term in accordance with~~ Premises shall be made by Lessor and Lessee no later than the ~~terms and conditions of this Option to Extend.~~ date that is eight (~~f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time~~ 8) months prior to commencement of the ~~Option~~ Renewal Term. Provided Lessee has properly elected to renew the term of this Lease, and if Lessor and Lessee fail to ~~terminate all~~ agree at least eight (8) months prior to commencement of the ~~provisions~~ Renewal Term upon the fair market rental rate of ~~this Section with respect to~~ the ~~Option to Extend~~Premises, ~~whereupon any prior or subsequent exercise~~ the fair market rental rate of ~~this Option to Extend~~ the Premises shall be ~~of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend~~ determined by appraisal in ~~strict~~ accordance with the provisions of Article XXXII ("Appraisal") hereof. Notwithstanding anything to the contrary contained in this ~~Section~~Article, in no event shall the Base Rent of the Premises for the Renewal Term be less than the Base Rent payable by Lessee under the terms of this Lease immediately prior to commencement of such Renewal Term. (iic) ~~The existence~~ That Lessee shall exercise its right to the Renewal Term provided herein, if at all, by notifying Lessor in writing of its election to exercise the ~~time Tenant exercises~~ right to renew the ~~Option to Extend or at the commencement~~ term of ~~the Option Term of a Default on the part of Tenant under the Lease.~~ this Lease no later than nine (~~iii~~9) ~~Tenant’s third Default under the Lease~~ months prior to the ~~commencement~~ end of the ~~Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence~~ initial ten-year term. Upon notification with respect to ~~all~~ such renewal, and for one month thereafter, the parties hereto shall make a good faith effort to agree upon the fair market rental rate of the ~~provisions of~~ Premises for the Renewal Term. In the event that Lessor and Lessee fail to agree within the one month time period set forth in this ~~Section.~~ subparagraph (~~h) This Option to Extend is personal to Perseid (or~~c), ~~if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d)~~ the fair market rental rate of the ~~Lease) all~~ Premises for such Renewal Term shall be determined by appraisal in the manner set forth in Article XXXII hereof. Any determination by appraisal or any agreement reached by the parties hereto with respect to such fair market rental rate and the resulting Base Rent of ~~Tenant’s right, title~~ the Premises for the Renewal Term shall be expressed in writing and ~~interest under~~ shall be executed by the ~~Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by~~parties hereto, and ~~shall not be transferable or assignable (voluntarily or involuntarily)~~ a copy thereof delivered to ~~any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to~~ each of the ~~benefit of and be personal to no more than only a single person or entity~~parties.

Appears in 1 contract

Samples: Lease Agreement (Syntellect Inc)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the Term of the Lease for an additional period of three (3) years ~~per Option~~ (~~each~~ such period may be referred to as the “Option Term”), as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of such option (and each Option, if more than one Option is granted): (i) Tenant must be conducting regular, active, ongoing business in, and be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by ~~Tenant, other than pursuant to the Maxygen Sublease,~~ Tenant shall not satisfy such condition) , except a Permitted Transferee that satisfies the terms and conditions of ~~more than 75%~~ Sections 10.01 and 10.05 of the ~~Rentable Area~~ Lease) of the entire Premises; and (ii) there has been no material adverse change in Tenant’s financial position from such position as of the date of execution of the Lease, as certified by Tenant’s independent certified public accountants, and as supported by Tenant’s certified financial statements, copies of which shall be delivered to Landlord with Tenant’s written notice exercising its right hereunder. Without limiting the generality of the foregoing, Landlord may reasonably conclude there has been a material adverse change if Tenant’s independent certified public accountants do not certify there has been no such change. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior to the Expiration Date and no later than the date which is ~~six~~ nine (69) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B E hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit BE) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business ~~judgment and in accordance with Exhibit B attached hereto~~judgment. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. E. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the ~~Preceding Rent or the~~ Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) ~~Tenant’s~~ Tenants failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the ~~Lease~~Lease or of any state of facts which with the passage of time or the giving of notice, or both, would constitute such a Default. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) ARMO and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any ~~other~~ person or ~~entity. In all events~~entity other than a Permitted Transferee which is an assignee of the Lease and which has satisfied the requirements of Sections 10.01 and 10.05 of this Lease, ~~this Option~~ and such Permitted Transferee may exercise the right without Tenant joining in or consenting to ~~Extend shall at any time be exercisable by~~such exercise, ~~accrue~~ and notwithstanding anything to the ~~benefit of~~ contrary, Tenant shall remain liable for all obligations under the Lease, including those resulting from any such exercise with the same force and ~~be personal to no more than only a single person or entity~~effect as if Tenant had joined in such exercise.

Appears in 1 contract

Samples: Lease Agreement (ARMO BioSciences, Inc.)

Option to Extend. (a) ~~Landlord hereby grants~~ Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ shall have one option to extend the Term ~~of the Lease~~ for an additional period of ~~three (3)~~ five years ~~per Option (each such period may be referred to as the “Option Term”), as to the entire Premises as it then exists,~~ upon ~~and subject to~~ all of the terms and conditions of this ~~Section~~ Lease, except that (i) the ~~“Option To Extend”), and provided that at~~ Base Rent during the ~~time of exercise of each Option Tenant must~~ extension Term shall be ~~in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75~~95% of the ~~Rentable Area~~ fair rental value of the ~~entire Premises~~Premises at the date three months prior to the commencement of the extension Term; and (ii) there shall be no further option to extend beyond the expiration of such extension Term. (b) Tenant~~’s election (the “Election Notice”) to~~ 's option may be exercised only by notice of exercise ~~the Option To Extend must be~~ given by Tenant to Landlord ~~in writing no earlier than the date which is~~ at least twelve ~~(12)~~ months prior to the ~~Expiration Date~~ expiration of the then current Term. Failure to so exercise within such period shall render any subsequent attempted exercise void and of no ~~later than the date which is six (6) months prior~~ effect, any principles of law to the ~~Expiration Date~~contrary not withstanding. If Tenant ~~either fails or elects not~~ shall have no right to exercise its option to extend the ~~Option to Extend by not timely giving its Election Notice~~Term, ~~then the Option to Extend~~ and any attempted exercise shall be ~~null~~ void and ~~void~~of no effect, ~~including~~if: (i) the named Tenant has assigned this Lease or has at any time subleased, in the aggregate, more than 50% of the Premises to a party other than one controlling, controlled by or under common control with Tenant; or (ii) Tenant shall be in default hereunder and such default shall not have been cured at the time of the attempted exercise or, if ~~more than one Option is granted~~such default occurs after Tenant's attempted exercise of the option, at the ~~then applicable Option to Extend and all further Options to Extend~~time of the proposed commencement of the extension Term. (c) ~~The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after~~ In the ~~expiration of~~ event that the ~~preceding Term of~~ parties have not agreed upon the ~~Lease. Tenant’s leasing~~ fair rental value of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the ~~Option~~ date three months before the commencement of the extension Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate value shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, arbitration in the ~~event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent~~ City before a single arbitrator as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effectfollows: (i) Landlord and Tenant shall have 15 days within which to select one mutually agreeable arbitrator. If Landlord and Tenant fail to agree on one arbitrator within the 15 day period, either party may promptly request the president of the local Board of Realtors to appoint an arbitrator for the matter, and said president's selection shall be binding upon Landlord and Tenant~~’s failure to timely exercise or timely to perform the Option to Extend in strict accordance~~ . Said president shall appoint as arbitrator an individual with the ~~provisions~~ following qualifications: MAI credentials; ten years' experience in the business of ~~this Section~~appraising commercial real estate; generally recognized competence in the valuation of commercial rental properties in Hartford County; and has never been a direct or indirect employee or agent of either Landlord or Tenant. (ii) ~~The existence at~~ Landlord and Tenant shall each submit to the ~~time Tenant exercises the Option to Extend or at the commencement~~ arbitrator, in writing, a good faith determination of the ~~Option Term~~ fair rental value of ~~a Default on~~ the ~~part of Tenant under the Lease~~Premises. (iii) The appraiser selected must choose either Landlord's or Tenant~~’s third Default under~~ 's good faith determination of the ~~Lease prior~~ fair rental value of the Premises and the appraiser's choice shall be final and binding upon the parties. In determining the fair rental value of the Premises and which of Landlord's or Tenant's determinations to select, the appraiser shall consider all relevant factors. From the date of appointment, the arbitrator shall have 30 days within which to render a decision as to the ~~commencement~~ fair rental value of the ~~Option Term~~Premises. If the arbitrator fails to render a decision within the applicable 30-day period, ~~notwithstanding that all such Defaults~~ either party shall have the right to apply to the American Academy of Arbitrators for a decision. Judgement upon the award rendered by the arbitrator shall be binding upon the parties and may ~~subsequently~~ be ~~cured. (g) Without limiting~~ entered in any court of competent jurisdiction. The arbitrator shall determine the ~~generality of any provision~~ liability of the ~~Lease, time shall be~~ parties for the costs of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) arbitration and may ~~not be used by~~allocate counsel fees, witness fees and ~~shall not be transferable or assignable (voluntarily or involuntarily) to any~~ other ~~person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to~~ costs between the ~~benefit of and be personal to no more than only a single person or entity~~parties.

Appears in 1 contract

Samples: Gross Lease (Open Solutions Inc)

Option to Extend. (a) ~~Landlord hereby grants~~ Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ shall have one option to extend the Term ~~of the Lease~~ for an additional period of ~~three (3)~~ five years ~~per Option (each such period may be referred to as the “Option Term”), as to the entire Premises as it then exists,~~ upon ~~and subject to~~ all of the terms and conditions of this ~~Section~~ Lease, except that (i) the ~~“Option To Extend”), and provided that at~~ Base Rent during the ~~time of exercise of each Option Tenant must~~ extension Term shall be ~~in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75~~95% of the ~~Rentable Area~~ fair rental value of the ~~entire Premises~~Premises at the date three months prior to the commencement of the extension Term; and (ii) there shall be no further option to extend beyond the expiration of such extension Term. (b) Tenant~~’s election (the “Election Notice”) to~~ 's option may be exercised only by notice of exercise ~~the Option To Extend must be~~ given by Tenant to Landlord ~~in writing no earlier than the date which is~~ at least twelve ~~(12)~~ months prior to the ~~Expiration Date~~ expiration of the then current Term. Failure to so exercise within such period shall render any subsequent attempted exercise void and of no ~~later than the date which is six (6) months prior~~ effect, any principles of law to the ~~Expiration Date~~contrary not withstanding. If Tenant ~~either fails or elects not~~ shall have no right to exercise its option to extend the ~~Option to Extend by not timely giving its Election Notice~~Term, ~~then the Option to Extend~~ and any attempted exercise shall be ~~null~~ void and ~~void, including~~of no effect, if (i) the named Tenant has assigned this Lease or has at any time subleased, in the aggregate, more than 50% of the Premises to a party other than one ~~Option is granted~~controlling, controlled by or under common control with Tenant; or (ii) Tenant shall be in default hereunder and such default shall not have been cured at the ~~then applicable Option to Extend and all further Options to Extend~~time of the attempted exercise or, if such default occurs after Tenant's attempted exercise of the option, at the time of the proposed commencement of the extension Term. (c) ~~The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after~~ In the ~~expiration of~~ event that the ~~preceding Term of~~ parties have not agreed upon the ~~Lease. Tenant’s leasing~~ fair rental value of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the ~~Option~~ date three months before the commencement of the extension Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate value shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, arbitration in the ~~event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent~~ City before a single arbitrator as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effectfollows: (i) Landlord and Tenant shall have 15 days within which to select one mutually agreeable arbitrator. If Landlord and Tenant fail to agree on one arbitrator within the 15 day period, either party may promptly request the president of the local Board of Realtors to appoint an arbitrator for the matter, and said president's selection shall be binding upon Landlord and Tenant~~’s failure to timely exercise or timely to perform the Option to Extend in strict accordance~~ . Said president shall appoint as arbitrator an individual with the ~~provisions~~ following qualifications: MAI credentials; ten years' experience in the business of ~~this Section~~appraising commercial real estate; generally recognized competence in the valuation of commercial rental properties in Hartford County; and has never been a direct or indirect employee or agent of either Landlord or Tenant. (ii) ~~The existence at~~ Landlord and Tenant shall each submit to the ~~time Tenant exercises the Option to Extend or at the commencement~~ arbitrator, in writing, a good faith determination of the ~~Option Term~~ fair rental value of ~~a Default on~~ the ~~part of Tenant under the Lease~~Premises. (iii) The appraiser selected must choose either Landlord's or Tenant~~’s third Default under~~ 's good faith determination of the ~~Lease prior~~ fair rental value of the Premises and the appraiser's choice shall be final and binding upon the parties. In determining the fair rental value of the Premises and which of Landlord's or Tenant's determinations to select, the appraiser shall consider all relevant factors. From the date of appointment, the arbitrator shall have 30 days within which to render a decision as to the ~~commencement~~ fair rental value of the ~~Option Term~~Premises. If the arbitrator fails to render a decision within the applicable 30-day period, ~~notwithstanding that all such Defaults~~ either party shall have the right to apply to the American Academy of Arbitrators for a decision. Judgement upon the award rendered by the arbitrator shall be binding upon the parties and may ~~subsequently~~ be ~~cured. (g) Without limiting~~ entered in any court of competent jurisdiction. The arbitrator shall determine the ~~generality of any provision~~ liability of the ~~Lease, time shall be~~ parties for the costs of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) arbitration and may ~~not be used by~~allocate counsel fees, witness fees and ~~shall not be transferable or assignable (voluntarily or involuntarily) to any~~ other ~~person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to~~ costs between the ~~benefit of and be personal to no more than only a single person or entity~~parties.

Appears in 1 contract

Samples: Gross Lease (Open Solutions Inc)

Option to Extend. ~~(a) Landlord hereby grants Tenant~~ Lessee shall have two (2) ~~consecutive~~ successive options ~~(individually an “Option” and collectively the “Options”)~~ to ---------------- extend the ~~Term~~ Lease from the end of the ~~Lease~~ original Term, each option for an five (5) additional ~~period of three (3)~~ years per Option (each such period may be referred to as the “Option Term”), as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior to the Expiration Date and no later than the date which is six (6) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to option on the same terms and conditions ~~contained~~ provided in the ~~Lease except~~ Lease. Each renewal option may only be exercised by any subtenant or assignee of the Lessee with the written approval of Lessor. The second renewal option for five (5) years shall only be operative and effective if Lessee has exercised the initial five (5) year renewal option; provided, each of the five (5) year renewal options is contingent upon and may only be exercised if Lessee is not in default of the terms of the Lease, and if such exercise is of the second renewal option, then Lessee has complied with all the terms of the first renewal. The first five (5) year renewal option shall be at an additional rental to that ~~(i) Tenant shall pay~~ required during Term based on the ~~“Option Term Rent”, defined and determined~~ increase in the ~~manner set forth in~~ Revised Consumer Price Index - Cities (1987=100) (the ~~immediately following Subsection; (ii~~"Index") published by the ~~Security Deposit shall be increased to an amount that is the same percentage or proportion~~ Bureau of ~~Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term~~Labor Statistics, ~~but~~ provided, in no event shall such increase exceed five (5%) percent. The "base Index number" shall be the ~~Security Deposit~~ Index number indicated for the City of Hialeah, entitled "all items" for the month of December, 1992. The "current Index number" shall be ~~decreased; and~~ the corresponding Index number for the month of December, 1997. The current Index number shall be divided by the base Index number with the resulting number (~~iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint~~quotient), ~~remodel~~if a positive number, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to ~~mean~~ be the ~~preceding Term~~ percentage of increase in the cost of living. The same measurement of rent increase shall be applicable for the second renewal option, provided as ~~extended~~ to the latter, the Index shall be (1997=100), the base Index number" shall be the Index number for the City of Hialeah, for the month of December, 1997, and the "current Index number" shall be. the corresponding Index number for the month of December, 2002. Lessor shall give Lessee notice of any such increase within a reasonable time after obtaining the necessary data for its computation. Lessor's computation shall be conclusive and binding, but shall not pre- clude any adjustment that may be required by ~~the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum~~ a published amendment of the ~~Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable,~~ index figures upon which said computation was based ~~upon a step-up to change the base year or base amount for calculation~~ unless Lessee notifies Lessor of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within any claimed error therein within forty-five (45) days after ~~Tenant’s exercise~~ such notice is given. Any dispute between the parties as to any such computation shall be resolved by arbitration. If publication of the ~~Option To Extend~~Index is discontinued, ~~Landlord~~ the parties shall ~~notify Tenant~~ accept comparable statistics on the cost of ~~Landlord’s determination of the Fair Market Rental Rate and Option Term Rent~~ living for the ~~Premises. Tenant may~~City of Hialeah, ~~within fifteen (15) days after receipt thereof, deliver to Landlord~~ as such statistics are computed and published by a ~~written notice either: (i) accepting Landlord’s determination, in which case~~ federal agency or by a recognized financial periodical selected by the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below)parties. The ~~Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable~~ two (2) options to renew each for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an ~~amendment to the Lease, and Tenant shall execute such amendment within~~ additional five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend years as granted herein shall be of exercisable by the Lessee notifying Lessor in writing no ~~force or effect:~~ less than three (i3) ~~Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section.~~ nor more than five (ii5) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease months prior to the ~~commencement~~ expiration of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned Term (or ~~deemed~~ the first renewal period, as the case may be) that the Lessee wishes to ~~have been assigned under clause 10.01(d) of~~ exercise the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) option to ~~any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity~~extend.

Appears in 1 contract

Samples: Lease (Medicore Inc)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the Term of the Lease for an additional period of ~~three~~ five (35) years ~~per Option~~ (~~each~~ such period may be referred to as the “Option Term”), as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of such option (and each Option, if more than one Option is granted): (i) Tenant must be conducting regular, active, ongoing business in, and be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by ~~Tenant, other than pursuant to the Maxygen Sublease,~~ Tenant shall not satisfy such condition) of ~~more than 75%~~ at least fifty percent (50%) of the ~~Rentable Area~~ Premises; and (ii) there has been no material adverse change in Tenant’s financial position from such position as of the ~~entire Premises~~date of execution of the Lease, as certified by Tenant’s independent certified public accountants or Chief Financial Officer or Chief Executive Officer, and as supported by Tenant’s certified financial statements, copies of which shall be delivered to Landlord with Tenant’s written notice exercising its right hereunder. Without limiting the generality of the foregoing, Landlord may reasonably conclude there has been a material adverse change if Tenant’s independent certified public accountants or Chief Financial Officer or Chief Executive Officer do not certify there has been no such change. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior to the Expiration Date and no later than the date which is ~~six~~ nine (69) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B E hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit BE) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business ~~judgment and in accordance with Exhibit B attached hereto~~judgment. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. E. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the ~~Lease~~Lease or of any state of facts which with the passage of time or the giving of notice, Igor both, would constitute such a Default. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults ~~may~~ ma), subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to ~~Perseid (or~~Bolt Biotherapeutics, ~~if applicable~~Inc., a ~~Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right~~Delaware corporation, ~~title and interest under the Lease in full compliance with Article 10 and all other provisions thereof)~~ and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any ~~other~~ person or ~~entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to~~ entity except a Permitted Transferee that satisfies the ~~benefit~~ terms and conditions of ~~and be personal to no more than only a single person or entity~~Section 10.01(e) of the Lease.

Appears in 1 contract

Samples: Lease Agreement (Bolt Biotherapeutics, Inc.)

Option to Extend. ~~(a) Landlord hereby grants Tenant two (2) consecutive options (individually an “Option” and collectively~~ Lessee shall have the ~~“Options”)~~ option to extend the Initial Term of ~~the~~ this Lease for ~~an additional~~ one (1) period of ~~three~~ thirty-six (336) ~~years per Option~~ months, commencing immediately following the expiration of the Initial Term (~~each~~ such period ~~may be~~ is referred to herein as the “Extended Term,” “Initial Term” and “Extended Term” are collectively referred to as ~~the~~ “~~Option~~ Term”), ~~as to the entire Premises as it then exists, upon~~ on all provisions contained in this Lease (except for Base Rent and ~~subject to the~~ such other terms and conditions as are specifically or by their operation limited to the Initial Term only and except that Lessee shall have no further right or option to extend the term upon the expiration of ~~this Section~~ the Extended Term), by giving notice of exercise of the option (the “Option To Extend”), and provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election (the “Election Notice”) to ~~exercise the Option To Extend must be given to Landlord in writing~~ Lessor no ~~earlier~~ more than ~~the date which is~~ twelve (12) months ~~prior~~ but no less than nine (9) months before the expiration of the Initial Term. Lessor’s ability to plan for the orderly transaction of its rental business, to accommodate the needs of other existing and potential tenants, and to enjoy the benefits of increasing rentals at such times as Lessor is able to do so in its sole and absolute discretion, are fundamental elements of Lessor’s willingness to provide Lessee with the option to extend contained herein. Accordingly, Lessee hereby acknowledges that strict compliance with the notification provisions contained herein, and Lessee’s strict compliance with the time period for such notification contained herein, are material elements of the bargained for exchange between Lessor and Lessee and are material elements of Lessee’s consideration paid to Lessor in exchange for the grant of the option. Therefore, Lessee’s failure to adhere strictly and completely to the ~~Expiration Date~~ provisions and time frame contained in this provision shall render the option automatically null, void and of no ~~later~~ further force or effect, without notice, acknowledgement, or any action of any nature or sort, required of Lessor. Lessee acknowledges that no other act or notice, other than the ~~date which is six (6) months prior~~ express written notice set forth hereinabove, shall act to put Lessor on notice of Lessee’s intent to extend, and Lessee hereby waives any claims to the ~~Expiration Date~~contrary, notwithstanding any other actions of Lessee during the Initial Term of this Lease or any statements, written or oral, of Lessee to Lessor to the contrary during the Initial Term of this Lease. ~~If Tenant either fails or elects not to exercise~~ Notwithstanding the foregoing, if an Event of Default (as defined below) exists on the date of giving the Option ~~to Extend by not timely giving its Election~~ Notice, ~~then~~ the Option ~~to Extend~~ Notice shall be totally ineffective, or if an Event of Default exists on the date the Extended Term is to commence, in addition to any and all other remedies available to Lessor under this Lease, at Lessor’s election, the exercise of the option shall be deemed null and void, the Extended Term shall not commence, and this Lease shall expire at the end of the Initial Term. The option to extend granted pursuant hereto is personal to original Lessee signatory to this Lease and cannot be assigned, transferred or conveyed to, or exercised for the benefit of, any other person or entity (voluntarily, involuntarily, by operation of law or otherwise) including, ~~if more than one Option is granted~~without limitation, to any assignee or subtenant permitted under Article 13, except in the ~~then applicable Option to Extend and all further Options to Extend.~~ event of a “Permitted Transfer” (~~c) The Option Term (and each Option Term, if more than one Option is granted)~~ as defined in Article 13). All of Lessee’s rights under this Article 3.b. shall ~~commence immediately after~~ terminate upon the expiration of the ~~preceding~~ Initial Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions sooner termination of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Net Office Lease (Splunk Inc)

Option to Extend. ~~(a)~~ Landlord hereby grants to Tenant the right, at its option, to extend the Term for one (1) period of two (2) ~~consecutive options~~ years commencing January 15, 1999 and ending January 14, 2001 (~~individually an “Option”~~ the "Extended Term") upon each and ~~collectively~~ all of the ~~“Options”~~following terms and conditions: (a) Tenant gives to Landlord, and Landlord actually receives, on or before August 14, 1998, a written notice of the exercise of the option to extend the Term (the "Notice of Exercise"), time being of the essence. If the Notice of Exercise is not so given and received, this option shall automatically expire and be of no further force and effect. (b) Tenant is not in default under this Lease ~~for an additional period~~ either at the time the Notice of ~~three~~ Exercise is given and received or as of the date that the Extended Term would commence. (3c) ~~years per Option (each such period may be referred to as the “Option Term”), as to the entire Premises as it then exists, upon and subject to~~ All the terms and conditions of this ~~Section (the “Option To Extend”)~~Lease shall apply, ~~and provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy~~ except where specifically modified by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premisesthis option. (bd) Tenant shall provide Landlord, simultaneously with the Notice of Exercise, Tenant~~’s election (~~'s most recent audited and monthly unaudited financial statements, bank references, Dun & Bradstreet report, and a balance sheet certified as being true by Tenant's chief financial officer. If, in Landlord's reasonable discretion, Landlord determines from any of the ~~“Election Notice”) to exercise~~ foregoing material that the ~~Option To Extend must be given to Landlord in writing no earlier~~ creditworthiness of Tenant is materially less than the ~~date which is twelve (12) months prior to the Expiration Date and no later than~~ creditworthiness of Tenant as of the date ~~which is six (6) months prior to the Expiration Date. If Tenant either fails or elects not to~~ of execution of this Lease, Landlord may reject Tenant's exercise ~~the~~ of this Option to Extend by ~~not timely giving its Election Notice~~written notice to Tenant, ~~then the~~ and upon such rejection this Option to Extend shall be become null and ~~void~~void and be of no further force or effect, ~~including~~and this Lease shall expire on January 14, 1999. (e) The monthly Base Rent payable during the Extended Term shall be mutually agreed upon between Landlord and Tenant based on the then prevailing market rate rental for comparable space and term in the Building or other comparable buildings located in the area of the Property for present commitments to lease space at the time the Extended Term would commence, within sixty (60) days after Tenant gives the Notice of Exercise, and, if ~~more~~ not agreed upon within such period, as it may be extended by mutual agreement of the parties. In no event, however, shall the monthly Base Rent be less than ~~one Option is granted~~the Base Rent paid during the last year of the initial Lease Term. In the event Landlord and Tenant are unable to negotiate a mutually acceptable market rental rate for the Extended Term within such sixty (60) day period, ~~the then applicable~~ this Option to Extend shall become null and ~~all~~ void and be of no further ~~Options to Extend~~force or effect, and this Lease shall expire on January 14, 1999. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (if) Tenant ~~shall pay~~ agrees that the ~~“Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii)~~ amount of the Security Deposit payable by Tenant for the Extended Term shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the ~~amount~~ first monthly installment of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant ~~under this Lease calculated at~~ in the ~~rate applicable for the last full~~ first month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Extended Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Office Lease (Microvision Inc)

Option to Extend. ~~(a)~~ 3.1 Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the Term of the Lease for an additional period of ~~three~~ five (35) years ~~per Option~~ (~~each~~ such period may be referred to as the “Option Term”), as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of such option (and each Option, if more than one Option is granted): (a) Tenant must be conducting regular, active, ongoing business in, and be in occupancy (and occupancy by a ~~subtenant~~subtenant (other than a Permitted Transferee), licensee or other party permitted or suffered by ~~Tenant, other than pursuant to the Maxygen Sublease,~~ Tenant shall not satisfy such condition) of ~~more than 75% of the Rentable Area of~~ the entire Premises. ; and (b) there has been no material adverse change in Tenant’s financial position from such position as of the date of execution of the Lease, as certified by Tenant’s independent certified public accountants, and as supported by Tenant’s certified financial statements, copies of which shall be delivered to Landlord with Tenant’s written notice exercising its right hereunder. 3.2 Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior to the Expiration Date and no later than the date which is ~~six~~ nine (69) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. ~~(c)~~ 3.3 The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (ia) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (iib) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (~~iii~~c) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B F hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. ~~(d)~~ 3.4 The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit BF) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business ~~judgment and in accordance with Exhibit B attached hereto~~judgment. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (ia) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection ~~(f)~~ 3.6 below) at the accepted rate; or (iib) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. F. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the ~~Preceding Rent or the~~ Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). ~~(e)~~ 3.5 Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. ~~(f)~~ 3.6 Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (ia) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (iib) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the ~~Lease~~Lease or of any state of facts which with the passage of time or the giving of notice, or both, would constitute such a Default. (~~iii~~c) Tenant’s third Default under the Lease within twenty-four months prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. ~~(g)~~ 3.7 Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. ~~(h)~~ 3.8 This Option to Extend is personal to ~~Perseid (or~~AcelRx Pharmaceuticals, ~~if applicable~~Inc., a ~~Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right~~Delaware corporation, ~~title and interest under the Lease in full compliance with Article 10 and all other provisions thereof)~~ and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any ~~other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single~~ person or entity.

Appears in 1 contract

Samples: Lease Agreement (Acelrx Pharmaceuticals Inc)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the Modified Term of the Lease for an additional period of ~~three~~ five (35) years ~~per Option~~ (~~each~~ such period may be referred to as the “Option Term”), as to the entire Premises as it may then ~~exists~~exist, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of ~~each Option~~ such right: (i) Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises; and (ii) there has been no material adverse change in Tenant’s financial position from such position as of the date of execution of the Lease, as certified by Tenant’s independent certified public accountants, and as supported by Tenant’s certified financial statements, copies of which shall be delivered to Landlord with Tenant’s written notice exercising its right hereunder. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months ~~prior to~~ before the Expiration Date and no later than the date which is ~~six~~ nine (69) months prior to the Expiration Date. If Tenant either fails or elects not to exercise ~~the~~ its Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void~~, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend~~. (c) The Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the ~~preceding~~ Modified Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) the monthly base rent, plus payment of Tenant’s proportionate share of Operating Expenses and Utilities charges pursuant to the Lease (in addition to all expenses paid directly by Tenant to the utility or service provider, which direct payments shall ~~pay~~ continue to be Tenant’s obligation) shall be amended to equal the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit provisions shall ~~be increased to an amount that is~~ remain as provided in the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreasedLease; ~~and~~ (iii) Tenant shall accept the Premises in its “~~as is~~AS-IS” condition without any obligation of Landlord to repaint, remodel, ~~repair~~repair (except as otherwise provided for in the Lease), improve or alter the Premises or to provide Tenant any allowance therefor~~, except~~ ; and (iv) there shall be no further option or right to extend the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination term of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commencesLease. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the ~~preceding~~ Modified Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the ~~sum~~ greater of (i) the monthly base rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the ~~Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B)~~ Modified Term, plus ~~Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation~~ payment of Tenant’s proportionate share of Operating Expenses ~~in connection with determination of the Fair Market Rental Rate) plus other~~ and Utilities charges pursuant to the Lease ~~payable~~ (in addition to ~~Landlord~~all expenses paid directly by Tenant to the utility or service provider, which direct payments shall continue to be Tenant’s obligation) (collectively, “Preceding Rent”) or (ii) the “Prevailing Market Rent”. As used herein Prevailing Market Rent shall mean the rent and all other monetary payments, escalations and triple net payables by Tenant, including consumer price increases, that Landlord could obtain from a third party desiring to lease the Premises for a term equal to the Option Term and commencing when the Option Term is to commence under market leasing conditions, and taking into account the following: the size, location and floor levels of the Premises; the type and quality of tenant improvements; age and location of the Project; quality of construction of the Project; services to be provided by Landlord or by tenant; the rent, all other monetary payments and escalations obtainable for new leases of space comparable to the Premises in the Project and in comparable buildings in the mid-Peninsula area, and other factors that would be relevant to such a third party in determining what such party would be willing to pay therefor. The determination of ~~Fair~~ Prevailing Market ~~Rental Rate and Option Term~~ Rent based upon the foregoing criteria shall be made by Landlord, in the good faith exercise of Landlord’s business ~~judgment and in accordance with Exhibit B attached hereto~~judgment. Within ~~forty-five~~ thirty (4530) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of ~~the Fair Market Rental Rate and~~ Option Term Rent for the Premises. ~~Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting~~ If Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair determination of Prevailing Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less greater than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, ~~such determination shall be conclusive~~ and ~~binding to set~~ if Tenant, in Tenant’s sole discretion, disagrees with the ~~Preceding~~ amount of Prevailing Market Rent ~~as the Option Term Rent for the Option Term~~determined by Landlord, Tenant ~~shall not be entitled~~ may elect to ~~dispute or contest such determination,~~ revoke and rescind the ~~extension shall be effective and binding~~ exercise of the option by giving written notice thereof to Landlord within forty-five (~~subject to Subsection (f~~45) ~~below)~~days after notice of Landlord’s determination of Prevailing Market Rent. (e) ~~Promptly after final determination~~ This Option to Extend is personal to Cygnus and to any assignee of the ~~Fair Market Rental Rate~~Lease which is an Affiliate (defined below) and may not be used by, ~~Landlord~~ and shall ~~prepare~~ not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. For purposes of this Section, “Affiliate” means (i) any subsidiary, affiliate or division controlled by Tenant; (ii) a ~~memorandum confirming~~ successor corporation related to Tenant through merger, consolidation or non-bankruptcy reorganization; or (iii) a purchaser of substantially all of Tenant’s assets, in each case of (i), (ii) and (iii) which also must satisfy the ~~specific dates, amounts and terms~~ requirements described in the paragraph immediately following Paragraph 15(d) of the ~~extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the~~ Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, ~~whereupon~~ with the effect of canceling and voiding any prior or subsequent exercise of so this Option to Extend ~~shall be~~ is of no force or effect: (i) Tenant’s failure to timely exercise ~~or timely to perform~~ the Option to Extend in ~~strict~~ accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be curedany default beyond any applicable notice and grace period. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Ten Year Industrial Net Lease Agreement (Cygnus Inc /De/)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the Extended Term of the Lease for an additional period of ~~three~~ five (35) years ~~per Option~~ (~~each~~ such period may be referred to as the “"Option Term”"), as to the entire Premises as it may then ~~exists~~exist, upon and subject to the terms and conditions of this Section (the “"Option To Extend”"), and provided that at the time of exercise of ~~each Option~~ such right: (i) Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises; and (ii) there has been no material adverse change in Tenant's financial position from such position as of the date of execution of the Lease, as certified by Tenant's independent certified public accountants, and as supported by Tenant's certified financial statements, copies of which shall be delivered to Landlord with Tenant's written notice exercising its right hereunder. (b) Tenant’s 's election (the “"Election Notice”") to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is ~~twelve~~ two hundred and seventy (12270) ~~months prior to~~ days before the Expiration Date and no later than the date which is ~~six~~ two hundred and forty (6240) ~~months~~ days prior to the Expiration Date. If Tenant either fails or elects not to exercise ~~the~~ its Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void~~, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend~~. (c) The Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the ~~preceding~~ Extended Term of the Lease. Tenant’s 's leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) the monthly base rent, plus payment of Tenant's proportionate share of Operating Expenses and Utilities charges pursuant to the Lease (in addition to all expenses paid directly by Tenant to the utility or service provider, which direct payments shall ~~pay~~ continue to be Tenant's obligation) shall be amended to equal the “"Option Term Rent”", defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit provisions shall ~~be increased to an amount that is~~ remain as provided in the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreasedLease; ~~and~~ (iii) Tenant shall accept the Premises in its ~~“as is”~~ "AS-IS" condition without any obligation of Landlord to repaint, remodel, ~~repair~~repair (except as otherwise provided for in the Lease), improve or alter the Premises or to provide Tenant any allowance therefor~~, except~~ ; and (iv) there shall be no further option or right to extend the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination term of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commencesLease. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the ~~preceding~~ Extended Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the ~~sum~~ greater of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) ~~accepting Landlord’s determination, in which case~~ the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent monthly base rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the ~~Term preceding the Option Term~~ Extended Term, plus ~~the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation~~ payment of ~~Base~~ Tenant's proportionate share of Operating Expenses ~~applicable for the last full month of the Term preceding the Option Term), plus other~~ and Utilities charges pursuant to the Lease ~~payable~~ (in addition to ~~Landlord. To the extent that~~ all expenses paid directly by Tenant ~~pays directly~~ to the utility or service ~~provider for utilities or services~~ provider, which ~~Tenant is to obtain directly pursuant to the Lease, Tenant~~ direct payments shall continue to ~~pay such amounts~~be Tenant's obligation) (collectively, ~~but such amounts~~ "Preceding Rent") or (ii) the "Prevailing Market Rent". As used herein Prevailing Market Rent shall ~~not be counted as part~~ mean the rent and all other monetary payments, escalations and triple net payables by Tenant, including consumer price increases, that Landlord could obtain from a third party desiring to lease the Premises for a term equal to the Option Term and commencing when the Option Term is to commence under market leasing conditions, and taking into account the following: the size, location and floor levels of the ~~Preceding~~ Premises; the type and quality of tenant improvements; age and location of the Project; quality of construction of the Project; services to be provided by Landlord or by tenant; the rent, all other monetary payments and escalations obtainable for new leases of space comparable to the Premises in the Project and in comparable buildings in the mid-Peninsula area, and other factors that would be relevant to such a third party in determining what such party would be willing to pay therefor. The determination of Prevailing Market Rent or based upon the ~~Fair Market Rental Rate as used herein. Further~~foregoing criteria shall be made by Landlord, in the ~~event that Landlord notifies Tenant that~~ good faith exercise of Landlord's business judgment. Within thirty (30) days after Tenant's exercise of the Option ~~Term Rent~~ To Extend, Landlord shall ~~equal ninety-five percent (95%)~~ notify Tenant of ~~the Preceding Rent, such~~ Landlord's determination ~~shall be conclusive and binding to set the Preceding Rent as the~~ of Option Term Rent for the ~~Option Term~~Premises. If Landlord's determination of Prevailing Market Rent is greater than the Preceding Rent, and if Tenant, in Tenant's sole discretion, disagrees with the amount of Prevailing Market Rent determined by Landlord, Tenant ~~shall not be entitled~~ may elect to ~~dispute or contest such determination,~~ revoke and rescind the ~~extension shall be effective and binding~~ exercise of the option by giving written notice thereof to Landlord within forty-five (~~subject to Subsection (f~~45) ~~below)~~days after notice of Landlord's determination of Prevailing Market Rent. (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to ~~Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed~~ Cygnus and to ~~have been assigned under clause 10.01(d)~~ any assignee of the ~~Lease) all of Tenant’s right, title and interest under the~~ Lease ~~in full compliance with Article 10 and all other provisions thereof~~which is an Affiliate (defined below) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In For purposes of this Section, "Affiliate" means (i) any subsidiary, affiliate or division controlled by Tenant; (ii) a successor corporation related to Tenant through merger, consolidation or non-bankruptcy reorganization; or (iii) a purchaser of substantially all ~~events~~of Tenant's assets, ~~this Option to Extend shall at any time be exercisable by~~in each case of (i), ~~accrue to~~ (ii) and (iii) which also must satisfy the ~~benefit of and be personal to no more than only a single person or entity.~~requirements described in the paragraph immediately following Paragraph 15

Appears in 1 contract

Samples: Industrial Net Lease Agreement (Cygnus Inc /De/)

Option to Extend. ~~(a) Landlord hereby grants Tenant two (2) consecutive options (individually an “Option” and collectively the “Options”) to extend the Term~~ Paragraph 3.4 of the Lease is hereby deleted in its entirety and replaced with the following: “Lessee shall have the right to renew the term of this Lease for ~~an additional~~ one (1) period of three (3) years ~~per Option~~ (~~each such period may be referred to as~~ the “~~Option~~ Renewal Term”~~), as to the entire Premises as it then exists, upon and~~ ) subject to the following terms and conditions and the conditions outlined in Paragraphs 38.2 and 38.4 of the Lease: (i) Lessee shall exercise its right to extend the term of this ~~Section~~ Lease, if at all, by notifying Lessor in writing of its election to exercise its right to renew the term hereof (the “Option To Extend”), and provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election (the “Election Renewal Notice”) ~~to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior to the Expiration Date and no~~ not later than ~~the date which is six (6) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice~~December 31, ~~then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend.~~2007; (cii) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Renewal Term shall be upon ~~and subject to~~ the same ~~terms~~ terms, covenants, and conditions as contained in ~~the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection~~this Lease; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, ~~Landlord~~ that there shall be no improvements or allowance provided to Lessee and the Base Rent for the Renewal Term shall be determined by ~~notice given~~ mutual agreement between Lessor and Lessee based upon the then fair market rental rate for comparable space in buildings of like quality in the same rental market as the Premises as of the date the Renewal Term is to ~~Tenant~~ commence; (iii) In the event Lessor and Lessee are unable to agree upon the Base Rent for the Renewal Term prior to February 1, 2008, either party may elect to have the determination of the Base Rent be governed by an arbitration procedure, as follows: two (2) qualified appraisers (each a member of the American Institute of Real Estate Appraisers (each, an “MAI”), one chosen by Lessor and one chosen by Lessee, shall mutually agree thereupon, provided that if either party shall fail to choose an MAI within fifteen (15) days after notification by the other party of the selection of its MAI, then the appraisal by such single MAI shall be binding on the Lessor and the Lessee. If the two MAIs cannot agree within fifteen (15) days after both have been appointed, then a third MAI shall be selected by the two MAIs or failing agreement as to such third MAI within thirty (30) days after ~~final determination~~ both have been appointed, by the American Arbitration Association. The third MAI shall only select one or the other of the ~~Fair Market Rental Rate~~two appraisals, ~~may elect~~ which selected appraisal shall then be binding on Lessor and Lessee except as provided below. The MAIs shall use their best efforts to ~~provide~~determine the Base Rent by March 31, ~~in lieu of such allowance for alterations~~ 2008 and the parties shall enter into an amendment to this Lease memorializing same and the ~~Premises, a rent credit equal to the amount~~ extension of the ~~allowance that would have otherwise been given, credited toward~~ Term. The fees and expenses of the ~~rents applicable only to~~ MAI appointed by the ~~Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term~~ Lessee shall be ~~deemed to mean the preceding Term as extended~~ paid by the ~~Option Term unless~~ Lessee, the ~~context clearly requires otherwise.~~fees and expenses of the MAI appointed by the Lessor shall be paid by the Lessor and the fees and expenses of the third MAI shall be divided equally between the Lessor and Lessee; and (div) ~~The Option Term Rent shall mean~~ In the ~~sum of~~ event the ~~Monthly~~ Base Rent at for the ~~Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable~~Renewal Term is not agreed upon by the parties or determined by the MAIs by May 31, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord2008, ~~in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant~~Lessee’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be ~~of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section~~deemed null and void. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Industrial Lease (Transoma Medical Inc)

Option to Extend. (a) Provided that Landlord ~~hereby grants~~ has not given Tenant notice of default more than two (2) ~~consecutive options~~ times during any twelve (~~individually~~ 12)‑month period, and provided that there then exists no uncured Event of Default by Tenant under this Lease, nor any event that with the giving of notice and/or the passage of time would constitute an ~~“Option”~~ Event of Default, and ~~collectively~~ provided that Tenant is the ~~“Options”)~~ sole 18 QB\129138.00037\24864053.9 occupant of the Premises, Tenant shall have the right and option to extend the Term of ~~the~~ this Lease for an two (2) additional ~~period~~ periods of ~~three~~ sixty (360) ~~years per Option~~ months each, exercisable by giving Landlord prior written notice, on or before that date that is nine (~~each such period~~ 9) months prior to the then current Expiration Date, but not prior to the date that is 18 months prior to the then current Expiration Date, of Tenant’s election to extend the Term of this Lease; it being agreed that time is of the essence and that this option may be ~~referred~~ exercised by and any successor to as Tenant’s entire interest in the ~~“Option Term”), as to the entire~~ Premises ~~as it then exists, upon and subject to the terms and conditions of this~~ through a Transfer permitted under Section (the “Option To Extend”), and provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises18. (b) ~~Tenant’s election~~ Such extensions shall be under the same terms and conditions as provided in this Lease except as follows: (i) each additional term shall begin on the day after the then current Expiration Date and thereafter the Expiration Date shall be deemed to be the date that is five (5) years after the then current Expiration Date; (ii) all references to the Term in this Lease shall be deemed to mean the Term as extended pursuant to this Section; (iii) there shall be only one (1) further option to extend following the first renewal, and no further option to extend after the second renewal; (iv) the Minimum Annual Rent for each year of the additional term shall be equal to the fair market rental value of the Premises and annual increases in fair market rental value as determined based on comparable buildings in the surrounding market (including rent, concessions, tenant improvements, free rent and broker commissions) (collectively, the “~~Election Notice~~FMR”) ~~to exercise~~ applicable at the ~~Option To Extend must be given to Landlord~~ time Tenant exercises such option (but in ~~writing~~ no ~~earlier than the date which is twelve (12) months~~ event prior to the ~~Expiration Date and no later than the~~ date ~~which~~ that is six (6) months ~~prior to~~ before the then current Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend). (c) ~~The Option Term~~ Within thirty (~~and each Option Term, if more than one Option is granted~~30) ~~shall commence immediately~~ days after ~~the expiration~~ Landlord receives notice of Tenant’s exercise of the ~~preceding~~ option to extend the Term of this Lease, Landlord will give notice to Tenant (the ~~Lease. Tenant~~“Rent Notice”) of Landlord’s ~~leasing~~ opinion of the ~~Premises during the Option Term shall be upon and subject~~ FMR. If Tenant does not respond to the ~~same terms and conditions contained~~ Rent Notice in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant writing within thirty (30) days after ~~final~~ receiving it, Landlord’s opinion of the FMR shall be deemed accepted as the Minimum Annual Rent due for each Lease Year of the extension period. If, during such thirty (30) day period, Tenant gives Landlord notice that Tenant contests Landlord’s determination of the ~~Fair Market Rental Rate~~FMR (an “Objection Notice”), ~~may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount~~ which notice must contain therein Tenant’s opinion of the ~~allowance that would have otherwise been given~~FMR, ~~credited toward~~ the ~~rents applicable only~~ parties will attempt to arrive at a mutually agreeable Minimum Annual Rent for each Lease Year of the ~~Premises and due starting after such rent obligation commences~~extension period. ~~If Tenant timely and properly exercises~~ When the ~~Option To Extend~~parties come to an agreement, ~~references in~~ they will both execute an amendment to this Lease establishing the Minimum Annual Rent for each Lease to Year of the ~~Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise~~extension period. (d) ~~The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (~~If Landlord and Tenant cannot agree as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, FMR within fifteen (15) days after ~~receipt thereof, deliver to Landlord a written notice either: (i) accepting~~ Landlord’s ~~determination~~receipt of the Objection Notice, ~~in which case~~ the ~~extension~~ FMR shall be ~~effective and binding~~ determined by appraisal. Within ten (~~subject to Subsection (f~~10) ~~below) at~~ days after the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within expiration of such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rateperiod, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall ~~execute such amendment within five (5) business days after Landlord and Tenant agree~~ give written notice to the ~~form~~ other setting forth the name and address of an appraiser designated by the party giving notice. All appraisers shall be independent brokers, who are a member in good standing of the ~~proposed amendment~~ Society of Industrial and ~~Landlord shall execute it promptly after Tenant. Notwithstanding any of~~ Office Realtors (“SIOR”) with experience in real estate activities, including at least ten (10) years’ experience in valuing similar space in the ~~foregoing to the contrary~~Phoenix, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.19 QB\129138.00037\24864053.9

Appears in 1 contract

Samples: Lease Agreement (Wageworks, Inc.)

Option to Extend. (a) ~~Landlord hereby grants Tenant two~~ The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (~~2) consecutive options (individually~~ an “~~Option” and collectively the “Options~~Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.15. In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the ~~Lease for an additional period~~ Lenders of ~~three~~ the applicable Existing Term Loan Class) (3a “Term Loan Extension Request”) ~~years per Option~~ setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (~~each such period~~ x) (A) the scheduled final maturity date shall be extended and (B) all or any of the scheduled amortization payments of principal of the Extended Term Loans may be ~~referred~~ delayed to as later dates than the ~~“Option Term”), as~~ scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the ~~entire Premises as it then exists, upon and subject~~ scheduled amortization payments reflected in the applicable Joinder Agreement with respect to the ~~terms and conditions~~ Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (d) of this Section ~~(the “Option To Extend”~~2.15 below), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment and ~~provided that at~~ (z) notwithstanding anything to the ~~time~~ contrary in this Section 2.15 or otherwise, Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full. No Lender shall have any obligation to agree to have any of ~~exercise~~ its Term Loans of ~~each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than~~ any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the ~~Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises~~Existing Term Loan Class from which they were converted. (b) ~~Tenant’s election~~ The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.15. In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “~~Election Notice~~Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to ~~exercise the Option To Extend must be given to Landlord in writing no earlier~~ later dates than the ~~date which is twelve~~ final maturity dates of the Specified Existing Revolving Credit Commitments, (12y) (A) ~~months prior~~ the interest margins with respect to the ~~Expiration Date and no later~~ Extended Revolving Credit Commitments may be higher or lower than the ~~date which is six~~ interest margins for the Specified Existing Revolving Credit Commitments and/or (6B) ~~months prior~~ additional fees may be payable to the ~~Expiration Date. If Tenant either fails~~ Lenders providing such Extended Revolving Credit Commitments in addition to or ~~elects not~~ in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to ~~exercise~~ the ~~Option~~ Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to ~~Extend by not timely giving its Election Notice~~the extent provided in the applicable Extension Amendment; provided that, ~~then~~ notwithstanding anything to the ~~Option~~ contrary in this Section 2.15 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to ~~Extend~~ any Existing Revolving Credit Commitments shall be ~~null~~ made on a pro rata basis with all other Extended Revolving Credit Commitments and ~~void, including, if more than one Option is granted,~~ (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the ~~then~~ same assignment and participation provisions applicable ~~Option~~ to ~~Extend~~ Revolving Credit Commitments and ~~all further Options~~ the Revolving Credit Loans related to ~~Extend~~such Commitments set forth in Section 13.6. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (c) The ~~Option Term~~ Borrower shall provide the applicable Extension Request at least five (~~and each Option Term, if more than one Option is granted~~5) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term Business Days prior to the ~~Option Term~~date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, ~~but~~ Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment, as applicable, of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in no such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the ~~Security Deposit~~ amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be ~~decreased;~~ treated identically to all other Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Swingline Loans under Section 2.1(d) and ~~(iii) Tenant shall accept~~ Letters of Credit under Article 3, except that the ~~Premises~~ applicable Extension Amendment may provide that the Swingline Maturity Date may be extended and the related obligations to make Swingline Loans may be continued so long as the Swingline Lender has consented to such extensions in its sole discretion (it being understood that no consent of any other Lender shall be required in connection with any such extension). Notwithstanding the -73- foregoing, for the avoidance of doubt, the Letter of Credit Commitments shall not be extended unless the prior written consent of the applicable Letter of Credit Issuer is obtained. (d) Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall be established pursuant to an amendment (an “~~as is” condition without any obligation of Landlord~~ Extension Amendment”) to ~~repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor~~this Agreement (which, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended expressly contemplated by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions penultimate sentence of this Section 2.15(c) and notwithstanding anything to the contrary set forth in Section 13.1, shall not require the consent of any Lender other than the Extending Lenders with respect to the ~~Option~~ Extended Term Loans or Extended Revolving Credit Commitments, as applicable, established thereby) executed by the Credit Parties, the Administrative Agent and the Extending Lenders. No Extension Amendment shall provide for any tranche of Extended Term Loans or Extended Revolving Credit Commitments in an aggregate principal amount that is less than $75,000,000. In addition to ~~Extend~~any terms and changes required or permitted by Section 2.15(a) or Section 2.15(b), ~~whereupon~~ each Extension Amendment (x) shall amend the scheduled amortization payments pursuant the applicable Joinder Agreement with respect to the Existing Term Loan Class from which the Extended Term Loans were converted to reduce each scheduled Repayment Amount for the Existing Term Loan Class in the same proportion as the amount of Term Loans of the Existing Term Loan Class is to be converted pursuant to such Extension Amendment (it being understood that the amount of any ~~prior or subsequent exercise~~ Repayment Amount payable with respect to any individual Term Loan of ~~this Option to Extend~~ such Existing Term Loan Class that is not an Extended Term Loan shall not be ~~of no force or effect:~~ reduced as a result thereof) and (iy) ~~Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance~~ may, but shall not be required to, impose additional requirements (not inconsistent with the provisions of this ~~Section.~~ Agreement in effect at such time) with respect to the final maturity and weighted average life to maturity of New Term Loans incurred following the date of such Extension Amendment. Notwithstanding anything to the contrary in this Section 2.15 and without limiting the generality or applicability of Section 13.1 to any Section 2.15 Additional Amendments (iias defined below), any Extension Amendment may provide for additional terms and/or additional amendments other than those referred to or contemplated above (any such additional amendment, a “Section 2.15 Additional Amendment”) ~~The existence at~~ to this Agreement and the ~~time Tenant exercises~~ other Credit Documents; provided that such Section 2.15 Additional Amendments comply with and do not conflict with the ~~Option to Extend~~ requirements of Section 2.15(a) or ~~at the commencement of the Option Term of a Default on the part of Tenant under the Lease.~~ (~~iii~~b) ~~Tenant’s third Default under the Lease~~ and do not become effective prior to the ~~commencement~~ time that such Section 2.15 Additional Amendments have been consented to (including, without limitation, pursuant to (1) consents applicable to holders of New Term Loans or New Revolving Credit Commitments provided for in any Joinder Agreement and (2) consents applicable to holders of any Extended Term Loans or Extended Revolving Credit Commitments provided for in any Extension Amendment) by such of the ~~Option Term~~Lenders, ~~notwithstanding~~ Credit Parties and other parties (if any) as may be required in order for such Section 2.15 Additional Amendments to become effective in accordance with Section 13.1. It is understood and agreed that each Lender that has consented to an Extension Amendment will consent for all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used bypurposes requiring its consent, and shall at the effective time thereof be deemed to consent to each amendment to this Agreement and the other Credit Documents authorized by this Section 2.15 and the arrangements described above in connection therewith except that the foregoing shall not ~~be transferable or assignable (voluntarily or involuntarily) to~~ constitute a consent on behalf of any ~~other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue~~ Lender to the ~~benefit~~ terms of ~~and be personal to no more than only a single person or entity.~~any Section 2.15

Appears in 1 contract

Samples: Credit Agreement (Laureate Education, Inc.)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the Term of the Lease for an additional period of ~~three~~ five (35) years ~~per Option~~ (~~each~~ such period may be referred to as the “"Option Term”"), as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “"Option To Extend”"), and provided that at the time of exercise of such option (and each Option, if more than one Option is granted): (i) Tenant or a Permitted Transferee which has satisfied the requirements of Sections 10.01 and 10.05 of the Lease must be conducting regular, active, ongoing business in, and be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by ~~Tenant, other than pursuant to the Maxygen Sublease,~~ Tenant shall not satisfy such condition) of ~~more than 75% of the Rentable Area of~~ the entire Premises; and (ii) there has been no material adverse change in Tenant's financial position from such position as of the date of execution of the Lease, as certified by Tenant's independent certified public accountants, and as supported by Tenant's certified financial statements, copies of which shall be delivered to Landlord with Tenant's written notice exercising its right hereunder. Without limiting the generality of the foregoing, Landlord may reasonably conclude there has been a material adverse change if Tenant's independent certified public accountants do not certify there has been no such change. (b) Tenant’s 's election (the “"Election Notice”") to exercise the Option To Extend must be given to Landlord in writing ~~no earlier than~~ during the ~~date which is~~ period starting twelve (12) months ~~prior to~~ before and ending nine (9) months before the scheduled Expiration Date ~~and no later than~~ of the ~~date which is six (6) months prior to the Expiration Date~~initial Term. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s 's leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “"Option Term Rent”", defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security ~~Deposit~~ shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security ~~Deposit~~ was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security ~~Deposit~~ be decreased; and (iii) Tenant shall accept the Premises in its “"as is” " condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B F hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit BF) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s 's business ~~judgment and in accordance with Exhibit B attached hereto~~judgment. Within forty-five (45) days after Tenant’s 's exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s 's determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s 's determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the 9972653 {2041-0737/00541709;8} Rider 2 ‑ Page 3 (501 Galveston Drive) accepted rate; or (ii) setting forth Tenant’s 's good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s 's failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s 's receipt of Tenant’s 's estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. F. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ~~ninety-five percent (95%) of~~ the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ~~ninety-five percent (95%) of~~ the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s 's failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the ~~Lease~~Lease or of any state of facts which with the passage of time or the giving of notice, or both, would constitute such a Default. (iii) Tenant’s 's third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to ~~Perseid (or~~Genomic, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any ~~other~~ person or ~~entity. In all events~~entity other than a Permitted Transferee which is an assignee of the Lease and which has satisfied the requirements of Sections 10.01 and 10.05 of this Lease, ~~this Option~~ and such Permitted Transferee may exercise the right without Tenant joining in or consenting to ~~Extend shall at any time be exercisable by~~such exercise, ~~accrue~~ and notwithstanding anything to the ~~benefit of~~ contrary, Tenant shall remain liable for all obligations under the Lease, including those resulting from any such exercise with the same force and ~~be personal to no more than only a single person or entity~~effect as if Tenant had joined in such exercise.

Appears in 1 contract

Samples: Lease Agreement (Genomic Health Inc)

Option to Extend. (So long as: a) the Tenant is not and has not been in default under the Lease; b) the Lease has not previously been terminated; c) no Transfer affecting the Tenant, the Leased Premises or the Lease has occurred; and d) the Tenant gives to the Landlord ~~hereby grants Tenant two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ written notice of its intention to extend the Fifth Extended Term of the Lease for an additional period of three (3) years per Option (each such period may be referred to as the “Option Term”), as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other not less than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior to the Expiration Date and no later than the date which is six (6) months prior to the ~~Expiration Date. If Tenant either fails or elects not to exercise~~ expiry of the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Fifth Extended Term, ~~if more than one Option is granted~~The Tenant shall have two (2) ~~shall commence immediately after~~ options to extend the ~~expiration of the preceding~~ Fifth Extended Term of the ~~Lease. Tenant’s leasing~~ Lease for a five (5) year period (the “Option Term”) exercisable by Tenant on either: (i) The entire Lease Premises, consisting of approximately 51,404 square feet of rentable area; (ii) The entire first (1st) and entire second (2nd) floor premises, and the IT Room and Xxxx 000, consisting of approximately 34,488 square feet of rentable area; OR (iii) The entire first (1st) floor premises, the entire second (2nd) floor premises, and the then available portion of the ~~Premises during~~ third (3rd) floor premises. consisting of not less than 37,225 square feet of total rentable area. Any demising of the third (3rd) floor shall be subject to Landlord’s prior approval, acting reasonably. The Option Term shall be upon ~~and subject to~~ the same terms and conditions as contained in the Lease except as otherwise expressly provided herein and except that ~~(i)~~ there shall be no further right of extension, no rent concessions, no Landlord's work required, no fixturing period and no tenant allowance or any other amount payable by Landlord to Tenant, the rates for any storage space and/or parking spaces used by Tenant shall ~~pay~~ be the ~~“Option Term Rent”, defined~~ Landlord's then applicable rates and ~~determined in~~ annual Basic Rent shall be equal to the ~~manner set forth in the immediately following Subsection; (ii~~greater of: a) the ~~Security Deposit shall be increased to an amount that is~~ annual Basic Rent payable during the ~~same percentage or proportion~~ last prior year of ~~Option Term Rent as~~ the ~~prior amount of Security Deposit was in relation to~~ Fifth Extended Term; or b) the fair market annual Basic Rent for the ~~Term prior~~ Premises as agreed upon by the parties having regard to the ~~Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept~~ finished condition of the Premises at the time of extension and having regard to then applicable basic rental levels for similar premises for a similar term in ~~its “~~the Building. The parties shall make all reasonable efforts to reach agreement as ~~is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except~~ to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term fair market annual Basic Rent for the ~~Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the~~ extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be term not less than ~~ninety-five percent~~ three (~~95%~~3) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease months prior to the commencement of the ~~Option~~ Fifth Extended Term, ~~notwithstanding that all~~ and failing such ~~Defaults may subsequently~~ agreement, fair market annual Basic Rent for the Fifth Extended Term shall be ~~cured.~~ determined by a single arbitrator in accordance with the Commercial Arbitration Act (~~g) Without limiting~~ British Columbia). If the ~~generality~~ Landlord so elects, the Tenant shall execute the Landlord's then current form of ~~any provision~~ lease amending agreement or lease, as determined by the landlord, to give effect to such extension of the ~~Lease, time shall be of the essence with respect to all of the provisions of this Section~~Fifth Extended Term. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Lease Extension and Modification Agreement (Xenon Pharmaceuticals Inc.)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the Term of the Lease for an additional period of ~~three~~ five (35) years ~~per Option~~ (~~each~~ such period may be referred to as the “Option Term”), ) as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “Option To Extend”), ~~and provided~~ provided, however, that at the time of its Election Notice (as defined below) Tenant shall have the right to remove from the Premises, effective as of the commencement of the Option Term, any the following: (x) all of the space leased by Tenant in Building with the addresses of 995 and 997 E. Arques Avenue, Sunnyvale, California, or (y) all of the space leased by Tenant in Building with the address of 000 X. Xxxxxx Xxxxxx, Xxxxxxxxx, Xxxxxxxxxx. At the time of exercise of ~~each Option~~ such option: (i) Tenant must be conducting regular, active, ongoing business in, and be in occupancy (and occupancy by a any subtenant, licensee or other party that is not an affiliate but permitted or suffered by ~~Tenant, other than pursuant to the Maxygen Sublease,~~ Tenant shall not satisfy such condition) of ~~more than 75% of the Rentable Area of~~ the entire Premises; and (ii) Tenant has a positive net worth and no less than Ten Million Dollars ($10,000,000.00) in cash or cash equivalents. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior to the Expiration Date and no later than the date which is ~~six~~ nine (69) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; and (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly ~~Base Rent~~ Installment of rent at ninety-five percent (95%) of the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business ~~judgment and in accordance with Exhibit B attached hereto~~judgment. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) business days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) business day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below).B. (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within ~~five~~ twenty (520) ~~business~~ days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a an Event of Default on the part of Tenant under the ~~Lease~~Lease or of any state of facts which with the passage of time or the giving of notice, or both, would constitute such an Event of Default. (iii) Tenant’s third Event of Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such ~~Defaults~~ Events of Default may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) Pharmacyclics and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any ~~other~~ person or ~~entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to~~ entity other than a Tenant Affiliate which is an assignee of the ~~benefit~~ Lease and which has satisfied the requirements of ~~and be personal to no more than only a single person or entity~~Section 25.C. of the New Lease.

Appears in 1 contract

Samples: New Lease (Pharmacyclics Inc)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the initial Term of the Lease for an additional period of ~~three~~ five (35) years ~~per Option~~ (~~each~~ such period may be referred to as the “"Option Term”"), as to the entire Premises as it may then ~~exists~~exist, upon and subject to the terms and conditions of this Section (the “"Option To Extend”"), and provided that at the time of exercise of ~~each Option~~ such right: (i) Tenant must be in ~~occupancy~~ occupancy; and (~~and occupancy by a subtenant~~ii) there has been no material adverse change in Tenant's financial position from such position as of the date of execution of the Lease, ~~licensee or other party permitted or suffered~~ as certified by Tenant's independent certified public accountants, ~~other than pursuant~~ and as supported by Tenant's certified financial statements, copies of which shall be delivered to ~~the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises~~Landlord with Tenant's written notice exercising its right hereunder. (b) Tenant’s 's election (the “"Election Notice”") to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months ~~prior to~~ before the Expiration Date and no later than the date which is ~~six~~ nine (69) months prior to the Expiration Date. If Tenant either fails or elects not to exercise ~~the~~ its Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void~~, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend~~. (c) The Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the ~~preceding~~ initial Term of the Lease. Tenant’s 's leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) ~~Tenant~~ the Monthly Base Rent and, if applicable, the Operating Expenses Base Year, the Taxes Base Year and parking charges pursuant to the Lease shall ~~pay~~ be amended to equal the “"Option Term Rent”", defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security ~~Deposit~~ Deposit, if any, shall be increased within fifteen (15) days after the Prevailing Market Rent has been determined to ~~an amount that is~~ equal one hundred percent (100%) of the ~~same percentage or proportion~~ highest monthly installment of ~~Option Term~~ Monthly Base Rent ~~as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased~~thereunder; ~~and~~ (iii) Tenant shall accept the Premises in its “"as is” " condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor~~, except~~ ; and (iv) there shall be no further option or right to extend the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination term of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commencesLease. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the ~~preceding~~ initial Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the ~~sum~~ greater of (i) the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other and parking charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the ~~Term preceding~~ initial Term, with Rent Adjustments based upon the Operating Expenses Base Year and Taxes Base Year as defined in Section 1.03 (collectively, "Preceding Rent") or (ii) the "Prevailing Market Rent". As used herein Prevailing Market Rent shall mean the rent and all other monetary payments and escalations, including consumer price increases, that Landlord could obtain from a third party desiring to lease the Premises for a term equal to the Option Term ~~plus~~ and commencing when the ~~Rent Adjustments payable by Tenant~~ Option Term is to commence under market leasing conditions, and taking into account the ~~Lease (if applicable~~following: the size, ~~using the base year for calculation of Base Operating Expenses applicable for the last full month~~ location and floor levels of the ~~Term preceding~~ Premises; the ~~Option Term~~type and quality of tenant improvements; age and location of the Project; quality of construction of the Project the; financial strength of Tenant; services to be provided by Landlord or by tenant; the rent, all other monetary payments and escalations obtainable for leases of space comparable to the Premises in the Project and in the Comparable Buildings, and other factors that would be relevant to such a third party in determining what such party would be willing to pay therefor, provided, however, that Prevailing Market Rent shall be determined without reduction or adjustment for "Tenant Concessions" (as defined below), ~~plus other charges pursuant~~ if any, being offered to ~~the Lease payable to Landlord~~prospective new tenants of comparable space. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part For purposes of the ~~Preceding~~ preceding sentence, the term "Tenant Concessions" shall include, without limitation, tenant improvement allowances and work, moving allowances, and lease takeovers. The determination of Prevailing Market Rent or based upon the ~~Fair Market Rental Rate as used herein. Further~~foregoing criteria shall be made by Landlord, in the ~~event that Landlord notifies Tenant that~~ good faith exercise of Landlord's business judgment and using the best available market data. Within thirty (30) days after Tenant's exercise of the Option ~~Term Rent~~ To Extend, Landlord shall ~~equal ninety-five percent (95%)~~ notify Tenant of ~~the Preceding Rent, such~~ Landlord's determination ~~shall be conclusive and binding to set the Preceding Rent as the~~ of Option Term Rent for the ~~Option Term~~Premises. If Landlord's determination of Prevailing Market Rent is greater than the Preceding Rent, and if Tenant, in Tenant's sole discretion, disagrees with the amount of Prevailing Market Rent determined by Landlord, Tenant ~~shall not be entitled~~ may elect to ~~dispute or contest such determination,~~ revoke and rescind the ~~extension shall be effective and binding~~ exercise of the option by giving written notice thereof to Landlord within thirty (~~subject to Subsection (f~~30) ~~below)~~days after notice of Landlord's determination of Prevailing Market Rent. (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this This Option to ~~Extend, in the form of an amendment~~ Extend is personal to ~~the Lease~~Calico and may not be used by, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not ~~affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option~~ be transferable or assignable (voluntarily or involuntarily) to ~~Extend~~any person or entity. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, ~~whereupon~~ with the effect of canceling and voiding any prior or subsequent exercise of so this Option to Extend ~~shall be~~ is of no force or effect: (i) Tenant’s 's failure to timely exercise ~~or timely to perform~~ the Option to Extend in ~~strict~~ accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a any Default on the part of Tenant under the Lease~~. (iii) Tenant’s third Default under the Lease prior~~ , provided, for purposes of this Section only, that with respect to ~~the commencement~~ a monetary default, Landlord has given Tenant notice of ~~the Option Term, notwithstanding that all~~ such ~~Defaults may subsequently be cured~~default. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Office Lease (Calico Commerce Inc/)

Option to Extend. ~~(a) Landlord hereby grants Tenant two (2) consecutive options~~ Provided that Learning Tree International USA, Inc., a Delaware corporation, and any of its Affiliates (individually an and collectively, “Learning Tree”), is not then in default and has not been in default more than twice during the Term, in each case both at the time of exercise of the Renewal Option” , as hereinafter defined, and ~~collectively~~ at the commencement of the Renewal Period, as hereinafter defined, and is then in occupancy of the Premises at the time of exercise of the Renewal Option, as hereinafter defined, and at the time of the commencement of the Renewal Period, as hereinafter defined, Learning Tree shall have one (1) option (the “~~Options~~Renewal Option”) to extend the Term for one (1) additional five (5) year period (the “Renewal Period”) after the expiration of the ~~Lease for an additional period of three~~ initial Term. The Renewal Option shall be exercisable only by written notice given by Learning Tree to Landlord not later than twelve (312) ~~years per Option~~ months, nor earlier than fifteen (~~each such period may be referred to as the “Option Term”)~~15) months, as prior to the ~~entire Premises as~~ expiration of the Term. In the event that Learning Tree does not timely exercise the Renewal Option, the Renewal Option shall be null and void and of no further force or effect, time being of the essence in the exercise of the Renewal Option and it ~~then exists, upon~~ being acknowledged and ~~subject~~ agreed by Learning Tree that Landlord shall be entitled to rely on any failure by Learning Tree to give written notice of its exercise of the Renewal Option by the date set forth herein for such exercise thereof. All terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior to the Expiration Date and no later than the date which is six (6) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend Lease shall be ~~null and void, including, if more than one Option is granted,~~ applicable during the Renewal Period except that the amount of Base Rent charged for the Renewal Period shall be the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “~~Option Term~~ Prevailing Market Rent”, ~~defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit~~ which shall be ~~increased to an amount that is~~ the ~~same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent~~ rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing comparable space in ~~Comparable Transactions receive an allowance pursuant~~ comparable buildings in Reston, Virginia, taking into account such concessions, if any, as are then being offered by landlords of comparable buildings in Reston, Virginia with respect to ~~the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant~~ such comparable space. If within thirty (30) days following delivery of Learning Tree’s notice, Landlord and Learning Tree have not mutually agreed on the Prevailing Market Rent for the Renewal Period in question, then within ten (10) days after ~~final~~ the expiration of such thirty-day period, each party shall give written notice to the other setting forth the name and address of a Broker (as hereinafter defined) selected by such party who has agreed to act in such capacity, to determine the Prevailing Market Rent. If either party shall fail to select a Broker as aforesaid, the Prevailing Market Rent shall be determined by the Broker selected by the other party. Each Broker shall thereupon independently make his determination of the ~~Fair~~ Prevailing Market ~~Rental Rate~~Rent within twenty (20) days after the appointment of the second Broker. If the two Brokers’ determinations are not the same, ~~may elect to provide, in lieu~~ but the higher of such ~~allowance for alterations to the Premises, a rent credit equal to the amount~~ two values is not more than one hundred five percent (105%) of the ~~allowance that would have otherwise been given~~lower of them, ~~credited toward~~ then the ~~rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term~~ Prevailing Market Rent shall be deemed to ~~mean~~ be the ~~preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum~~ average of the ~~Monthly Base Rent at~~ two values. If the ~~Fair Market Rental Rate~~ higher of such two values is more than one hundred five percent (~~as defined in Exhibit B~~105%) ~~plus Rent Adjustments and/or certain Operating Expenses~~ of the lower of them, then the two Brokers shall jointly appoint a third Broker within ten (~~if applicable, based upon a step-up to change~~ 10) days after the ~~base year or base amount for calculation~~ second of ~~Operating Expenses in connection with~~ the two determinations described above has been rendered. The third Broker shall independently make his determination of the ~~Fair~~ Prevailing Market ~~Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term~~ Rent ~~shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five~~ within twenty (4520) days after ~~Tenant’s exercise~~ his appointment. The highest and the lowest determinations of value among the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension three Brokers shall be ~~effective~~ disregarded and ~~binding (subject to Subsection (f) below) at~~ the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period remaining determination shall be deemed ~~its cancellation of~~ to be the ~~Option~~Prevailing Market Rent. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within Within thirty (30) days after ~~Landlord’s receipt of Tenant’s estimate~~the Prevailing Market Rent is determined as aforesaid, the ~~Fair Market Rental Rate~~ parties shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of execute an amendment to this Lease setting forth the ~~Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree~~ new Rent to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension be paid for the ~~Option Term in accordance with~~ Renewal Period. For the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions purposes of this Section ~~with respect to the Option to Extend~~39, ~~whereupon any prior or subsequent exercise of this Option to Extend~~ “Broker” shall ~~be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend~~ mean a real estate broker licensed in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option TermVirginia, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been ~~assigned~~ regularly engaged in such capacity in the business of commercial office leasing in Reston, Virginia for at least ten (~~or deemed to have been assigned under clause 10.01(d~~10) years immediately preceding such person’s appointment hereunder. Each party shall pay for the cost of its Broker and one-half of the ~~Lease) all~~ cost of ~~Tenant’s right, title and interest under~~ the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entitythird Broker.

Appears in 1 contract

Samples: Lease Agreement (Learning Tree International Inc)

Option to Extend. ~~(a) Landlord hereby grants~~ Provided Tenant is not in default of any material terms, covenants or conditions contained in this Lease beyond any and all applicable notice and cure periods at the time of Tenant's exercise of its option to extend the Original Term, as hereinafter set forth, and provided further that the Tenant is not in default of any material terms, covenants or conditions contained in this Lease beyond any and all applicable notice and cure periods at the time of the commencement of each extended term, Tenant shall have the right at its election to extend the Original Term of this Lease for two (2) ~~consecutive options~~ additional periods, the first option period shall commence September 16, 2011 and terminate September 15, 2016 (~~individually an “~~hereinafter referred to as "First Option” " or "First Option Period", as case may be) and the second option period shall commence September 16, 2016 and terminate September 15, 2021 (hereinafter referred to as "Second Option" or "Section Option Period", as the case may be), said First Option Period and Second Option Period shall be collectively ~~the “Options”) to extend the Term of the Lease for an additional period of three (3) years per Option (each such period may be~~ referred to as the ~~“Option Term”)~~"extended term", as provided further that Tenant gives to Landlord written notice of the ~~entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of~~ exercise of ~~each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to~~ the ~~Maxygen Sublease, shall not satisfy such condition) of more than 75%~~ election of the ~~Rentable Area of~~ First Option and the ~~entire Premises.~~ Second Option, respectively, at least nine (~~b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12~~9) months prior to the ~~Expiration Date~~ expiration of the Original Term in the case of the First Option and ~~no later than the date which is six~~ at least nine (69) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the ~~preceding Term~~ First Option Period in the case of the ~~Lease~~Second Option. ~~Tenant’s leasing~~ All the same terms, covenants and conditions in this Lease contained shall apply to the Extended Term, except that the rent shall be adjusted as provided in Article 6, Section 6.1.2 and that the Tenant shall not have any further option to again extend the term of this Lease beyond the extended term. If the Tenant shall give notice of the ~~Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined~~ exercise of an election in the manner ~~set forth in~~ and within the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Termtime provided herein, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be ~~deemed to mean the preceding Term as~~ extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the ~~Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such~~ giving of notice ~~within such fifteen (15) day period shall be deemed its cancellation~~ without the requirements of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent action or the ~~Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%)~~ execution of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default further instruments on the part of ~~Tenant under the Lease. (iii)~~ Landlord and Tenant~~’s third Default under the Lease prior~~ , except only to the ~~commencement~~ extent to confirm Annual Fixed Rent and percentage of Tenant's obligation for real estate taxes and operating expenses and the ~~Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time~~ like. The Original Term and Extended Term shall be of collectively referred to as the ~~essence with respect to all of the provisions of this Section~~"Term". (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Lease Agreement (Exodus Communications Inc)

Option to Extend. (a) Landlord hereby grants Tenant ~~two~~ one (21) ~~consecutive options~~ option (~~individually an “Option” and collectively the “Options”~~"Option to Extend") to extend the initial Term ~~of the Lease~~ for ~~an additional period of three (3) years per Option (each such period may be referred to as the “Option Term”), as to~~ the entire Premises ~~as it then exists~~for a period of five (5) years (the "Option Term"), ~~upon and subject~~ which Option shall be exercisable only by written notice ("Exercise Notice") delivered by Tenant to Landlord not more than twelve (12) months nor less than eight (8) months prior to the ~~terms and conditions~~ expiration of the initial Term. The rights contained in this Section 3.3 shall be personal to the Original Tenant or a Permitted Transferee Assignee (as defined below) and may only be exercised by the ~~“Option To Extend”), and provided that at the time of exercise of each Option~~ Original Tenant ~~must be in occupancy~~ or Permitted Transferee Assignee (and ~~occupancy by a subtenant~~not any assignee, ~~licensee~~ sublessee or other ~~party permitted~~ transferee of the Original Tenant's interest in this Lease except a Permitted Transferee Assignee) if the Original Tenant or ~~suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more~~ Permitted Transferee Assignee occupies no less than 75% of the ~~Rentable Area~~ Premises as of the ~~entire Premises.~~ date of Tenant's Exercise Notice (b) as defined below). Tenant~~’s election (~~'s failure to deliver the ~~“Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than~~ Exercise Notice on or before the date ~~which is twelve (12) months prior~~ specified above shall be deemed to ~~the Expiration Date and no later than the date which is six (6) months prior to the Expiration Date. If Tenant either fails or elects~~ constitute Tenant's election not to exercise the Option to ~~Extend~~ Extend. The Basic Rent payable by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises Tenant during the Option Term ("Option Rent") shall be ~~upon and subject~~ equal to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination 100% of the ~~Fair~~ "Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” " (defined below). ~~The Preceding Rent~~ "Market Rent" shall mean the ~~sum~~ applicable monthly Basic Rent and all escalations at which tenants, as of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, ~~notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting~~ are entering into leases for non-sublease space which is not encumbered by expansion rights and which is comparable in size, location and quality to the ~~generality of any provision~~ Premises in transactions, for a term comparable to the Option Term, which comparable space is located in the Comparable Buildings, taking into consideration the value of the ~~Lease~~existing improvements in the Premises to Tenant, ~~time shall be~~ as compared to the value of the ~~essence~~ existing improvements in such comparable space, with ~~respect~~ such value to ~~all~~ be based upon the age, quality and layout of the ~~provisions of this Section. (h) This~~ improvements and the extent to which the same could be utilized by Tenant with consideration given to the fact that the improvements existing in the Premises are specifically suitable to Tenant. The Option to Extend ~~is personal to Perseid~~ may be exercised by Tenant only if: (~~or, if applicable, a~~ x) Tenant ~~Affiliate who has been assigned (or deemed to~~ shall not have been ~~assigned~~ in default beyond applicable cure periods under ~~clause 10.01(d)~~ this Lease during the Term and Tenant is occupying at least 75% of the entire Premises; (y) Tenant shall have not assigned this Lease, except to a Permitted Transferee Assignee; or (z) ~~all of Tenant’s right, title and interest under~~ the Lease has not been terminated prior to the Expiration Date of the initial Term. The term "Comparable Buildings" shall mean the Building and other office buildings located in ~~full compliance~~ San Mateo, California, which buildings are Class “A” buildings with ~~Article 10 and all other provisions thereof) and may not be used by~~a similar quality of construction, and ~~shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events~~are of similar size, ~~this Option to Extend shall at any time be exercisable by, accrue to the benefit of~~ and ~~be personal to no more than only a single person or entity~~offer similar services and amenities.

Appears in 1 contract

Samples: Office Lease (Model N, Inc.)

Option to Extend. (a) ~~Landlord~~ Lessor hereby grants ~~Tenant two (2) consecutive options (individually an “Option” and collectively~~ to Lessee the ~~“Options”)~~ option to extend the ~~Term~~ term of this Lease for a five (5) year period (the "Option Period") commencing when the prior term expires upon each and all of the following terms and conditions: (i) Lessee gives to Lessor, and Lessor actually receives, on a date which is prior to the date that the Option Period would commence (if exercised) by at least six (6) and not more than nine (9) months, a written notice (in accordance with the provisions of Paragraph 23) of the exercise of this option to extend this Lease for an said additional ~~period~~ term, time being of ~~three~~ the essence. If said notification of the exercise of this option to extend is not so given and received, this option shall automatically expire; (3ii) ~~years per Option~~ The provisions of Paragraph 39, including the provision relating to default of Lessee set forth in Paragraph 39.4 of this Lease are conditions of this option to extend; (~~each such period may be referred to as the “Option Term”), as to the entire Premises as it then exists, upon and subject to~~ iii) All of the terms and conditions of this ~~Section~~ Lease except where specifically modified by this option shall apply; (iv) Subject to increases pursuant to Paragraph 52, the “monthly Base Rent for each month of the Option ~~To Extend”~~Period shall be calculated as follows: (a) As used herein, the term "C.P.I." shall mean the Consumer Price Index of the Bureau of Labor Statistics of the U.S. Department of Labor for Urban Wage Earners and Clerical Workers, Los Angeles-Anaheim-Riverside, California (1982-84=100), ~~and provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant~~ "All Items," herein referred to ~~the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises.~~as "C.P.I." (b) ~~Tenant’s election~~ The rental amount of $15,525 shall be multiplied by a fraction the numerator of which shall be the C.P.I. of the calendar month that is three (~~the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12~~3) months prior to the ~~Expiration Date~~ month during which the Option Period commences and ~~no later than~~ the ~~date~~ denominator of which shall be the C.P.I. for the calendar month that is ~~six~~ three (63) months prior to the ~~Expiration Date~~month in which the original term commenced. ~~If Tenant either fails or elects not~~ Subject to ~~exercise~~ increases pursuant to Paragraph 52, the sum calculated shall constitute the new monthly Base Rent during the Option ~~to Extend by not timely giving its Election Notice~~Period, ~~then~~ but, in no event, shall such new monthly Base Rent be less than the Base Rent payable for the month immediately preceding the commencement of the Option ~~to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend~~Period. (c) ~~The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration~~ Pending receipt of the ~~preceding Term~~ required C.P.I. and determination of the ~~Lease~~actual adjustment, Lessee shall pay an estimated adjusted rental, as reasonably determined by Lessor by reference to the then available C.P.I. information. ~~Tenant’s leasing~~ Upon notification of the ~~Premises during~~ actual adjustment after publication of the ~~Option Term~~ required C.P.I., any overpayment shall be ~~upon~~ credited against the next installment of rent due, and ~~subject~~ any underpayment shall be immediately due and payable by Lessee. Lessor's failure to request payment of an estimated or actual rent adjustment shall not constitute a waiver of the ~~same terms and conditions contained~~ right to any adjustment provided for in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwisethis addendum. (d) ~~The Option Term Rent shall mean~~ In the ~~sum~~ event the compilation and/or publication of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent C.P.I. shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver transferred to ~~Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension~~ any other governmental department or bureau or agency or shall be ~~effective and binding (subject to Subsection (f) below) at~~ discontinued, then the ~~accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon~~ index most nearly the ~~Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period~~ same as the C.P.I. shall be ~~deemed its cancellation of the Option~~used to make such calculation. In the event ~~Tenant has delivered notice setting forth Tenant’s different estimate~~that Lessor and Lessee cannot agree on such alternative index, ~~but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate,~~ then the ~~Fair Market Rental Rate~~ matter shall be ~~determined~~ submitted for decision to the American Arbitration Association in accordance with the ~~terms~~ then rules of ~~Exhibit B. Notwithstanding any~~ said association and the decision of the ~~foregoing to~~ arbitrators shall be binding upon the ~~contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below)~~Parties. The ~~Preceding Rent shall mean the sum~~ cost of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination said arbitrators shall be ~~conclusive~~ paid equally by Lessor and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below)Lessee. (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

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

Option to Extend. (a) Provided that, at the time of each such exercise, (i) this Lease is in full force and effect, and (ii) no Event of Default shall have occurred and be continuing (either at the time of exercise or at the commencement of an Extended Term), and (iii) Tenant shall be in occupancy of the entire Premises for the conduct of its business and shall not have assigned this Lease or sublet the Premises, except to a Permitted Transferee (any of which conditions described in clauses (i), (ii), and (iii) may be waived by Landlord ~~hereby grants~~ at any time in Landlord’s sole discretion), Tenant ~~two (2) consecutive options (individually an “Option”~~ shall have the right and ~~collectively the “Options”)~~ option to extend the Term of ~~the~~ this Lease for two (2) extended terms (each an ~~additional period~~ “Extended Term”) of ~~three~~ five (35) years ~~per Option (~~each such period may be referred to as the “Option Term”), as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given giving written notice to Landlord ~~in writing no earlier~~ not later than ~~the date which is~~ nine (9) months and not sooner than twelve (12) months prior to the ~~Expiration Date~~ expiration date of the Term then in effect. The effective giving of such notice of extension by Tenant shall automatically extend the Term of this Lease for the applicable Extended Term, and no ~~later than~~ instrument of renewal or extension need be executed. In the event that Tenant fails timely to give such notice to Landlord, this Lease shall automatically terminate at the end of the current Term, and Tenant shall have no further option to extend the Term of this Lease. Each Extended Term shall commence on the day immediately succeeding the expiration date of the then current Term and shall end on the day immediately preceding the fifth (5th) anniversary of the first day of such Extended Term. The Extended Term shall be on all the terms and conditions of this Lease, except: (w) during the second Extended Term, Tenant shall have no further option to extend the Term, (x) the Basic Rent for the Extended Term shall be the Fair Market Rental Value of the Premises as of the commencement of the Extended Term in question, taking into account all relevant factors, determined pursuant to Section 2.4(b) below, (y) Landlord shall not be required to furnish any materials or perform any work to prepare the Premises for Tenant’s occupancy during the Extended Term and Landlord shall not be required to provide any work allowance or reimburse Tenant for any alterations made or to be made by Tenant, or to grant Tenant any rent concession, and (z) the Base Operating Expenses and the Base Taxes under this Lease for the Extended Term will be the Operating Expenses and Taxes, respectively, for the Operating Year and Tax Year in which ~~is six~~ the commencement of the Extended Term occurs. (6b) ~~months prior~~ Promptly after receiving Tenant’s notice extending the Term of this Lease pursuant to Section 2.4(a) above, Landlord shall provide Tenant with Landlord’s good faith estimate of the ~~Expiration Date~~Fair Market Rental Value (as defined in Section 2.4(c) below) of the Premises for the Extended Term. If Tenant ~~either fails or elects not~~ is unwilling to ~~exercise~~ accept Landlord’s estimate of the ~~Option~~ Fair Market Rental Value as set forth in Landlord’s notice referred to ~~Extend by not timely giving its Election Notice~~above, then the ~~Option~~ parties shall negotiate in good faith to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant reach agreement thereon within thirty (30) days after ~~final~~ the delivery of such notice by Landlord. If the parties are unable to reach agreement thereon within thirty (30) days after the delivery of such notice by Landlord, then either party may submit the determination of the Fair Market Rental ~~Rate, may elect~~ Value of the Premises to ~~provide, in lieu~~ arbitration by giving notice to the other party naming the initiating party’s arbitrator within ten (10) days after the expiration of such ~~allowance for alterations to~~ thirty (30)-day period. Within fifteen (15) days after receiving a notice of initiation of arbitration, the ~~Premises, a rent credit equal to~~ responding party shall appoint its own arbitrator by notifying the ~~amount~~ initiating party of the ~~allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences~~responding party’s arbitrator. If ~~Tenant timely and properly exercises~~ the ~~Option To Extend~~second arbitrator shall not have been so appointed within such fifteen (15) day period, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination Value of the ~~Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent~~ Premises shall be ~~made~~ determined by ~~Landlord~~the initiating party’s arbitrator. If the second arbitrator shall have been so appointed, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant maytwo arbitrators thus appointed shall, within fifteen (15) days after ~~receipt thereof~~the responding party’s notice of appointment of the second arbitrator, ~~deliver to Landlord~~ appoint a ~~written notice either: (i) accepting Landlord’s determination, in which case~~ third arbitrator. If the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt two initial arbitrators are unable timely to agree ~~upon~~ on the third arbitrator, then either may, on behalf of both, request such appointment by the closest office of the American Arbitration Association. The Fair Market Rental ~~Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation~~ Value of the ~~Option. In~~ Premises for the ~~event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option~~ Extended Term ~~Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate~~ shall be determined ~~in accordance with~~ by the ~~terms of Exhibit B. Notwithstanding any of the foregoing to the contrary~~method commonly known as Baseball Arbitration, ~~at no time during the Option Term~~ whereby Landlord’s selected arbitrator and Tenant’s selected arbitrator shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to each set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final forth its respective determination of the Fair Market Rental ~~Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms~~ Value of the ~~extension for~~ Premises, and the ~~Option Term in accordance with~~ third arbitrator must select one or the ~~terms~~ other (it being understood that the third arbitrator shall be expressly prohibited from selecting a compromise figure). Landlord’s selected arbitrator and ~~conditions~~ Tenant’s selected arbitrator shall deliver their determinations of ~~this Option to Extend, in~~ the ~~form~~ Fair Market Rental Value of ~~an amendment~~ the Premises to the ~~Lease, and Tenant shall execute such amendment~~ third arbitrator within five (5) ~~business~~ Business Days of the appointment of the third arbitrator and the third arbitrator shall render his or her decision within ten (10) days after receipt of both of the other two determinations of the Fair Market Rental Value of the Premises. The third arbitrator’s decision shall be binding on both Landlord and ~~Tenant agree to~~ Tenant. All arbitrators shall be commercial real estate brokers who are independent from the ~~form~~ parties and who have had at least ten (10) years experience leasing comparable buildings in the Annapolis area. Each party shall pay the fees of its own arbitrator, and the fees of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend third arbitrator shall be shared equally by the parties. If as of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the ~~Option~~ Extended Term the amount of ~~a Default on~~ the ~~part~~ Basic Rent for the Extended Term has not been determined, Tenant shall pay the amount determined by Landlord for the Premises and when the determination has actually been made, an appropriate retroactive adjustment shall be made as of ~~Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to~~ the commencement of the ~~Option Term~~Extended Term if necessary. In the event that such determination shall result in an overpayment by Tenant of any Basic Rent, ~~notwithstanding that all~~ such ~~Defaults may subsequently~~ overpayment shall be ~~cured~~paid by Landlord to Tenant promptly after such determination has been made, and if such determination shall result in an underpayment by Tenant of any Basic Rent, Tenant shall pay any such amounts to Landlord promptly following such determination. (gc) ~~Without limiting~~ As used in this Lease, the ~~generality~~ term “Fair Market Rental Value” shall mean the fixed rents that landlords of comparable buildings in the Annapolis area have agreed to accept, and sophisticated nonaffiliated tenants of comparable buildings have agreed to pay, in current arms-length, transactions for comparable space (in terms of condition, improvements, floor location, view and floor height) of a comparable size for uses comparable to the Permitted Use, for a term equal to the applicable Extended Term and taking into account all other relevant factors, including without limitation, adjustment for the existence, timing and amount of any ~~provision~~ increases in rent following the term commencement in the comparison transactions; provided, however, that (i) the presence, amount or absence of brokerage commissions in either the subject transaction or the comparison transactions shall be considered, (ii) any rent abatement or other free rent of any type provided in comparison transactions for the period of the ~~Lease~~performance of any tenant improvement work (i.e., ~~time~~ any “construction period”) shall be disregarded, and (iii) any tenant improvements or allowance provided for in comparable transactions shall be taken into account, and the value, if any, to Tenant of any existing improvements in the Premises shall be taken into account in the calculation of the ~~essence with respect~~ Fair Market Rental Value. If in determining the Fair Market Rental Value for a subject transaction hereunder, it is determined that free rent or cash allowances (collectively, “Concessions”) should be granted, Landlord may, at Landlord’s sole option, elect all or any portion of the following: (A) to grant some or all of the ~~provisions of this Section.~~ Concessions to Tenant as free rent or as an improvement allowance, or (hB) ~~This Option~~ to ~~Extend is personal~~ adjust the Fair Market Rental Value to ~~Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d)~~ take into consideration and deduct the amortized amount of the ~~Lease) all~~ total dollar value of ~~Tenant’s right~~such Concessions, ~~title and interest under~~ amortized on a straight line basis over the ~~Lease~~ Extended Term (in ~~full compliance with Article 10 and all other provisions thereof) and may not be used by, and~~ which case the Concessions so amortized shall not be ~~transferable or assignable (voluntarily or involuntarily)~~ granted to ~~any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity~~Tenant).

Appears in 1 contract

Samples: Lease Agreement (Howard Bancorp Inc)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the Extended Term of the Lease for an additional period of ~~three~~ one (31) ~~years per Option~~ year (~~each~~ such period may be referred to as the “Option Term”), as to the entire Premises as it may then ~~exists~~exist, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of ~~each Option~~ such right: (i) Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises; (ii) so long as Landlord hereunder is also the landlord under that certain lease to Tenant of all of Building 9 (301 Galveston Drive), Tenant then has all of Building 9 under lease from Landlord, Tenant is in occupancy of all of Building 9 and Tenant has duly exercised the option to extend such lease in accordance with its terms; and (iii) Tenant then has a liquid net worth of no less than Seventy-five Million Dollars ($75,000,000.00), and such determination of liquid net worth shall count as assets of Tenant only cash, cash equivalents and liquid investments, and such determination shall be certified by Tenant’s Chief Financial Officer, and supported by Tenant’s financial statements, copies of which shall be delivered to Landlord with Tenant’s written notice exercising its right hereunder. Such supporting financial statements to be delivered to Landlord shall consist of Tenant’s audited financial statements for the most-recent, completed fiscal year, and Tenant’s financial statements for all fiscal quarters completed after the end of the most-recent, completed fiscal year and before the date of Tenant’s Election Notice, with the financial statements for the most-recent, completed quarter certified by Tenant’s Chief Financial Officer. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is ~~twelve~~ nine months (129) months ~~prior to~~ before the Expiration Date and no later than the date which is six (6) months ~~prior to~~ before the Expiration Date. If Tenant either fails or elects not to exercise ~~the~~ its Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void~~, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend~~. (c) The Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the ~~preceding~~ Extended Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) ~~Tenant shall pay~~ the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Monthly Base Rent for the ~~Term prior~~ Premises hereunder shall increase to a monthly rate equal to One and 96/100 Dollars ($1.96) per square foot of Rentable Area of the Premises for the Option Term, ~~but in no event~~ and Tenant shall continue to pay Tenant’s Share of Operating Expenses pursuant to the ~~Security Deposit~~ Lease (along with all expenses paid directly by Tenant to the utility or service provider, which direct payments shall continue to be ~~decreased~~Tenant’s obligation); ~~and~~ (~~iii~~ii) Tenant shall accept the Premises in its “~~as is~~AS-IS” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor~~, except~~ ; and (iii) there shall be no further option or right to extend the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination term of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commencesLease. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the ~~preceding~~ Extended Term as further extended by the Option Term unless the context clearly requires otherwise. (d) ~~The~~ This Option ~~Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable~~to Extend is personal to Maxygen, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate Inc. and ~~Option Term Rent shall~~ may not be ~~made by Landlord~~used by, ~~in the good faith exercise of Landlord’s business judgment~~ and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be ~~counted as part~~ transferable or assignable (voluntarily or involuntarily) to any person or entity except an assignee of the ~~Preceding Rent or~~ Lease which is a Tenant Affiliate and has satisfied the ~~Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%)~~ requirements of Article Ten of the ~~Preceding Rent, such determination shall be conclusive and binding~~ Lease applicable to ~~set the Preceding Rent as the Option Term Rent for the Option Term,~~ a Tenant ~~shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below)~~Affiliate. (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, ~~whereupon~~ with the effect of canceling and voiding any prior or subsequent exercise of so this Option to Extend ~~shall be~~ is of no force or effect: (i) Tenant’s failure to timely exercise ~~or timely to perform~~ the Option to Extend in ~~strict~~ accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend ~~or at the commencement~~ of ~~the Option Term of a Default~~ any default on the part of Tenant under the ~~Lease~~Lease or of any state of facts which with the passage of time or the giving of notice, or both, would constitute such a default. (iii) Tenant’s third ~~Default~~ default under the Lease prior to the ~~commencement of~~ time Tenant exercises the Option ~~Term~~to Extend, notwithstanding that all such ~~Defaults~~ defaults may subsequently be cured. (gf) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Lease (Maxygen Inc)

Option to Extend. Borrower shall have the option to extend the term of the Loan from the Original Maturity Date to the Extended Maturity Date, upon satisfaction of each of the following conditions precedent: (a) ~~Landlord hereby grants Tenant two~~ Borrower shall provide Lender with written notice of Borrower's request to exercise the Option to Extend not less than thirty (230) ~~consecutive options~~ days prior to the Original Maturity Date; and (~~individually an “Option” and collectively the “Options”~~b) ~~to extend the Term~~ As of the ~~Lease for an additional period~~ date of ~~three~~ Borrower's delivery of notice of request to exercise the Option to Extend, and as of the Original Maturity Date, no Default shall have occurred which is continuing, and no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall have occurred which is continuing, and Borrower shall so certify in writing; and (3c) ~~years per~~ Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Option to Extend; and (~~each such period may be referred to as the “Option Term”)~~d) There shall have occurred no material adverse change, as determined by Lender in its sole discretion, in the financial condition of Borrower from that which existed as of the later of: (A) the date hereof; or (B) the date upon which the financial condition of such party was first represented to Lender; and (e) The commitment amount of the ~~entire Premises~~ Loan shall not exceed Ten Million Dollars ($10,000,000). Borrower shall have the right to repay a portion of the outstanding principal amount of the Loan, or cancel any undisbursed commitment amount, or some combination of the foregoing, in order to satisfy the foregoing condition. Any amounts repaid may not be reborrowed; and (f) On or before the Original Maturity Date, Borrower shall pay to Lender an extension fee in the amount of one-quarter of one percent (0.25%) of the outstanding principal amount of the Loan. Except as ~~it then exists~~modified by this Option to Extend, ~~upon and subject to~~ the terms and conditions of this ~~Section (~~Agreement and the ~~“Option To Extend”),~~ other Loan Documents as modified and ~~provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy~~ approved by ~~a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease,~~ Lender shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior to the Expiration Date and no later than the date which is six (6) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment remain unmodified and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate full force and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below)effect. (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Loan Agreement (KBS Legacy Partners Apartment REIT, Inc.)

Option to Extend. (a) ~~Landlord~~ Tenant hereby grants ~~Tenant two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ Subtenant a single option to extend the Term ~~of the Lease for an additional period of three~~ through February 28, 2006 (~~3) years per Option (each such period may be referred to as~~ the “Option Term”), ) as to the ~~entire~~ Sublease Premises as it may then ~~exists~~exist, upon and subject to the terms and conditions of this Section 4.2 (the “Option To to Extend”), and provided that at the time of exercise of ~~each Option Tenant must be~~ such right there has been no material adverse change in ~~occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy~~ Subtenant’s financial position from such ~~condition) of more than 75%~~ position as of the ~~Rentable Area~~ date of execution of the ~~entire Premises~~Sublease Agreement, as certified by Subtenant’s independent certified public accountants and by Subtenant’s certified financial statements, copies of which shall be delivered to Tenant with Subtenant’s written notice exercising its right hereunder. (b) ~~Tenant~~Subtenant’s election (the “Election Notice”) to exercise the Option To to Extend must be given to ~~Landlord~~ Tenant in writing no ~~earlier than the date which is twelve (12) months prior to the Expiration Date and no~~ later than ~~the date which is~~ six (6) months ~~prior to~~ before the ~~Expiration Date~~expiration of the Term. If ~~Tenant~~ Subtenant either fails or elects not to exercise ~~the~~ its Option to Extend by not ~~timely~~ giving its Election Notice, then the Option to Extend shall be null and void~~, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend~~. (c) The Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the ~~preceding Term of the Lease~~Term. ~~Tenant~~Subtenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the ~~Lease~~ Sublease Agreement except ~~that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit~~ there shall be ~~increased~~ no further option or right to ~~an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for~~ extend the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the ~~Fair Market Rental Rate~~Sublease Agreement and the Rent shall be as follows: Period Amount Per Month June 1, ~~may elect to provide~~2004 – February 28, ~~in lieu of such allowance for alterations to the Premises~~2005 $123,007.68 per month March 1, ~~a rent credit equal to the amount of the allowance that would have otherwise been given~~2005 – February 28, ~~credited toward the rents applicable only to the Premises and due starting after such rent obligation commences.~~ 2006 $127,776.96 per month If ~~Tenant~~ Subtenant timely and properly exercises the Option To to Extend, references in the ~~Lease~~ Sublease Agreement to the Term shall be deemed to mean the ~~preceding~~ then-current Term as extended by the Option Term unless the context clearly requires otherwise. (d) ~~The~~ This Option ~~Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable~~to Extend is personal to Genomic Health, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate Inc. and ~~Option Term Rent shall~~ may not be ~~made by Landlord~~used by, ~~in the good faith exercise of Landlord’s business judgment~~ and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be ~~counted as part of the Preceding Rent~~ transferable or ~~the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent~~ assignable (~~95%~~voluntarily or involuntarily) ~~of the Preceding Rent, such determination shall be conclusive and binding~~ to ~~set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute~~ any person or ~~contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below)~~entity. (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, ~~Landlord~~ Tenant shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, ~~whereupon~~ with the effect of canceling and voiding any prior or subsequent exercise of so this Option to Extend ~~shall be~~ is of no force or effect: (i) ~~Tenant~~Subtenant’s failure to timely exercise ~~or timely to perform~~ the Option to Extend in ~~strict~~ accordance with the provisions of this Section. (ii) The existence at the time ~~Tenant~~ Subtenant exercises the Option to Extend or at the commencement of the Option Term of ~~a Default~~ any default on the part of ~~Tenant~~ Subtenant under the ~~Lease~~Sublease Agreement. (iii) ~~Tenant~~Subtenant’s third ~~Default~~ default under the ~~Lease~~ Sublease Agreement prior to the commencement of the ~~Option~~ option Term, notwithstanding that all such ~~Defaults~~ defaults may subsequently be cured. In the event of Tenant’s termination of the Option to Extend pursuant to this subsection subsequent to Subtenant’s exercise of the Option to Extend, Subtenant shall reimburse Tenant for all reasonable costs and expenses Tenant incurs in connection with Subtenant’s exercise of the Option to Extend. (gf) Without limiting the generality of any provision of the ~~Lease~~Sublease Agreement, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Sublease Agreement (Genomic Health Inc)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the Term of the Lease for an additional period of ~~three~~ five (35) years ~~per Option~~ (~~each~~ such period may be referred to as the “Option Term”), as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of such option (and each Option, if more than one Option is granted): (i) Tenant must be conducting regular, active, ongoing business in, and be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by ~~Tenant, other than pursuant to the Maxygen Sublease,~~ Tenant shall not satisfy such condition) of ~~more than 75% of the Rentable Area of~~ the entire Premises; and (ii) there has been no material adverse change in Tenant’s financial position from such position as of the date of execution of the Lease, as certified by Tenant’s independent certified public accountants, and as supported by Tenant’s certified financial statements, copies of which shall be delivered to Landlord with Tenant’s written notice exercising its right hereunder. Without limiting the generality of the foregoing, Landlord may reasonably conclude there has been a material adverse change if Tenant’s independent certified public accountants do not certify there has been no such change. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is ~~twelve~~ fifteen (1215) months prior to the Expiration Date and no later than the date which is ~~six~~ twelve (612) months prior to the Expiration ~~Date~~Date (the “Exercise Window”). If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B D hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit BD) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business ~~judgment and in accordance with Exhibit B attached hereto~~judgment. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. D. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ~~ninety-five percent (95%) of~~ the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ~~ninety-five percent (95%) of~~ the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the ~~Lease~~Lease or of any state of facts which with the passage of time or the giving of notice, or both, would constitute such a Default. (iii) Tenant’s third Default under the Lease ~~prior to~~ during the ~~commencement of~~ thirty-six (36) month period immediately preceding the ~~Option Term~~Exercise Window, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) Metromile and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any ~~other~~ person or ~~entity. In all events,~~ entity other than a Permitted Transferee which is an assignee of the Lease and which has satisfied the requirements of Sections 10.01 and 10.05 of this ~~Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity~~Lease.

Appears in 1 contract

Samples: Office Lease (INSU Acquisition Corp. II)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the initial Term of the Lease for an additional period of ~~three~~ five (35) years ~~per Option~~ (~~each~~ such period may be referred to as the “"Option Term”"), as to the entire Premises as it may then ~~exists~~exist, upon and subject to the terms and conditions of this Section (the “"Option To Extend”"), and provided that at the time of exercise of ~~each Option~~ such right: (i) Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises; and (ii) there has been no material adverse change in Tenant's financial position from such position as of the date of execution of the Lease, as certified by Tenant's independent certified public accountants, and as supported by Tenant's certified financial statements, copies of which shall be delivered to Landlord with Tenant's written notice exercising its right hereunder. (b) Tenant’s 's election (the “"Election Notice”") to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months ~~prior to~~ before the Expiration Date and no later than the date which is ~~six~~ nine (69) months prior to the Expiration Date. If Tenant either fails or elects not to exercise ~~the~~ its Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void~~, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend~~. (c) The Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the ~~preceding~~ initial Term of the Lease. Tenant’s 's leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) ~~Tenant~~ the Monthly Base Rent and, if applicable, the Operating Expenses Base Year, the Taxes Base Year and parking charges pursuant to the Lease shall ~~pay~~ be amended to equal the “"Option Term Rent”", defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security ~~Deposit~~ Deposit, if any, shall be increased within fifteen (15) days after the Prevailing Market Rent has been determined to ~~an amount that is~~ equal one hundred percent (100%) of the ~~same percentage or proportion~~ highest monthly installment of ~~Option Term~~ Monthly Base Rent ~~as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased~~thereunder; ~~and~~ (iii) Tenant shall accept the Premises in its “"as is” " condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor~~, except~~ ; and (iv) there shall be no further option or right to extend the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination term of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commencesLease. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the ~~preceding~~ initial Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the ~~sum~~ greater of (i) the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other and parking charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the ~~Term preceding~~ initial Term, with Rent Adjustments based upon the Operating Expenses Base Year and Taxes Base Year as defined in Section 1.03 (collectively, "Preceding Rent") or (ii) the "Prevailing Market Rent". As used herein Prevailing Market Rent shall mean the rent and all other monetary payments and escalations, including consumer price increases, that Landlord could obtain from a third party desiring to lease the Premises for a term equal to the Option Term ~~plus~~ and commencing when the ~~Rent Adjustments payable by Tenant~~ Option Term is to commence under market leasing conditions, and taking into account the ~~Lease (if applicable~~following: the size, ~~using the base year for calculation of Base Operating Expenses applicable for the last full month~~ location and floor levels of the ~~Term preceding~~ Premises; the ~~Option Term~~type and quality of tenant improvements; age and location of the Project; quality of construction of the Project; services to be provided by Landlord or by tenant; the rent, all other monetary payments and escalations obtainable for new leases of space comparable to the Premises in the Project and in comparable class A office buildings in downtown Walnut Creek, California, and other factors that would be relevant to such a third party in determining what such party would be willing to pay therefor, provided, however, that Prevailing Market Rent shall be determined without reduction or adjustment for "Tenant Concessions" (as defined below), ~~plus other charges pursuant~~ if any, being offered to ~~the Lease payable to Landlord~~prospective new tenants of comparable space. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part For purposes of the ~~Preceding~~ preceding sentence, the term "Tenant Concessions" shall include, without limitation, so-called free rent, tenant improvement allowances and work, moving allowances, and lease takeovers. The determination of Prevailing Market Rent or based upon the ~~Fair Market Rental Rate as used herein. Further~~foregoing criteria shall be made by Landlord, in the ~~event that Landlord notifies Tenant that~~ good faith exercise of Landlord's business judgment. Within thirty (30) days after Tenant's exercise of the Option ~~Term Rent~~ To Extend, Landlord shall ~~equal ninety-five percent (95%)~~ notify Tenant of ~~the Preceding Rent, such~~ Landlord's determination ~~shall be conclusive and binding to set the Preceding Rent as the~~ of Option Term Rent for the ~~Option Term~~Premises. If Landlord's determination of Prevailing Market Rent is greater than the Preceding Rent, and if Tenant, in Tenant's sole discretion, disagrees with the amount of Prevailing Market Rent determined by Landlord, Tenant ~~shall not be entitled~~ may elect to ~~dispute or contest such determination,~~ revoke and rescind the ~~extension shall be effective and binding~~ exercise of the option by giving written notice thereof to Landlord within thirty (~~subject to Subsection (f~~30) ~~below)~~days after notice of Landlord's determination of Prevailing Market Rent. (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this This Option to ~~Extend, in the form of an amendment~~ Extend is personal to ~~the Lease~~BRE and may not be used by, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not ~~affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option~~ be transferable or assignable (voluntarily or involuntarily) to ~~Extend~~any person or entity. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, ~~whereupon~~ with the effect of canceling and voiding any prior or subsequent exercise of so this Option to Extend ~~shall be~~ is of no force or effect: (i) Tenant’s 's failure to timely exercise ~~or timely to perform~~ the Option to Extend in ~~strict~~ accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of ~~a Default~~ any default on the part of Tenant under the ~~Lease~~Lease or of any state of facts which with the passage of time or the giving of notice, or both, would constitute such a default. (iii) Tenant’s 's third ~~Default~~ default under the Lease prior to the commencement of the Option Term, notwithstanding that all such ~~Defaults~~ defaults may subsequently be cured. In the event of Landlord's termination of the Option to Extend pursuant to this Section, Tenant shall reimburse Landlord for all costs and expenses Landlord incurs in connection with Tenant's exercise of the Option to Extend including, without limitation, costs and expenses with respect to any brokerage commissions and attorneys' fees, and with respect to the design, construction or making of any tenant improvements, repairs or renovation or with respect to any payment of all or part of any allowance for any of the foregoing. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Office Lease (Velocityhsi Inc)

Option to Extend. (a) Landlord hereby grants Tenant ~~two~~ one (21) ~~consecutive options (individually an “Option” and collectively the “Options”)~~ option to extend the Term of the Lease for an additional period of three (3) years ~~per Option~~ (~~each such period may be referred to as~~ the “"Option Term”"), as to all (but not part) of the ~~entire~~ Premises as it such may then ~~exists~~exist, upon and subject to the terms and conditions of set forth in this Section 6 (the “"Option To Extend”"), and provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior to the Expiration Date and no later than the date which is six (6) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the ~~preceding~~ Term of the Lease, as extended hereby. Tenant~~’s leasing~~ 's hiring of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (ia) ~~Tenant~~ the Rent shall ~~pay~~ be equal to the “"Option Term Base Rent”, ," defined and determined in the manner set forth ~~in the immediately following Subsection~~below; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iiib) Tenant shall accept the ~~Premises~~ Premises, the Building and the Project in ~~its “as is”~~ an "AS IS" condition without any obligation of Landlord to repaint, remodel, ~~repair,~~ improve or alter the ~~Premises~~ Premises, Building or Project or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination for any of the ~~Fair Market Rental Rate~~foregoing, ~~may elect~~ and (c) there shall be no further option or right to ~~provide, in lieu of such allowance for alterations to~~ extend the ~~Premises, a rent credit equal to the amount~~ Term of the ~~allowance that would have otherwise been given~~Lease, ~~credited toward~~ or any right to renew this Lease during the ~~rents applicable only to the Premises and due starting after such rent obligation commences~~Option Term. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the ~~preceding Term as extended by the~~ Option Term unless the context clearly requires otherwise. (c) Tenant's election to exercise the Option To Extend must be given to Landlord in writing no later than six (6) months prior to the expiration of the Term of the Lease, as extended hereby. (d) Notwithstanding anything to the contrary contained herein, all rights of Tenant pursuant to the Option To Extend shall automatically terminate without notice and shall be of no further force and effect, whether or not Tenant has timely exercised the option granted herein, if (a) at the time of exercise of the Option To Extend or at the time of commencement of the Option Term, there exists a default hereunder, or any act or omission on the part of Tenant which, with the passage of time or the giving of notice, or both, would constitute a default under hereunder, or (b) Landlord has given Tenant two (2) or more notices of the existence of a default hereunder, during the initial Term of the Lease, as extended hereby, whether or not such default is subsequently cured, or (c) a late charge has become payable pursuant to the Lease two (2) or more times during the initial Term of the Lease, as extended hereby, or (d) Tenant does not occupy all of the Premises at the time of exercise of the Option To Extend or at the time of commencement of the Option Term. In the event of a termination of the Option To Extend pursuant to this Section 6, Tenant shall reimburse Landlord for all cost and expense Landlord incurs in connection with Tenant's exercise of the Option, including, without limitation, with respect to any brokerage commissions. (e) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during Premises for the Option Term shall ~~the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall~~ mean the ~~sum~~ greater of (a) the ~~Monthly Base~~ Rent payable by Tenant under this Lease ~~calculated at the rate applicable~~ for the ~~last full~~ twelve (12) month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease period immediately prior to the commencement of the applicable Option ~~Term~~Term (the "Preceding Base Rent"), ~~notwithstanding~~ or (b) the "Market Rent", which as used herein shall mean the amount of Rent that ~~all such Defaults may subsequently be cured. (g) Without limiting~~ Landlord could obtain from a third party desiring to lease the ~~generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable,~~ Premises under a ~~Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title~~ lease containing terms and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.conditions substantially

Appears in 1 contract

Samples: Lease (Adept Technology Inc)

Option to Extend. Borrower shall have the option to extend the term of the Loan from the Maturity Date (for purposes of this Section, “Original Maturity Date”), to the Extended Maturity Date, upon satisfaction of each of the following conditions precedent: (a) ~~Landlord hereby grants Tenant two~~ Borrower shall provide Lender with written notice of Borrower’s request to exercise the Option to Extend not more than ninety (290) ~~consecutive options~~ days but not less than thirty (~~individually an “Option” and collectively~~ 30) days prior to the ~~“Options”~~Original Maturity Date; (b) ~~to extend the Term~~ As of the ~~Lease for~~ date of Borrower’s delivery of notice of request to exercise the Option to Extend, and as of the Original Maturity Date, no Default shall have occurred and be continuing, and no event or condition which, with the giving of notice or the passage of time or both, would constitute a Default shall have occurred and be continuing, and Borrower shall so certify in writing; (c) Borrower shall execute or cause the execution of all documents reasonably required by Lender to exercise the Option to Extend and shall deliver to Lender, at Borrower’s sole cost and expense, such title insurance endorsements reasonably required by Lender; (d) There shall have occurred no material adverse change, as determined by Lender in its sole discretion, in the financial condition of Borrower, any Guarantor, any Indemnitor or any Non-Borrower Trustor from that which existed as of the later of: (A) the Effective Date; or (B) the date upon which the financial condition of such party was first represented to Lender; (e) On the Original Maturity Date, Borrower shall pay to Lender an ~~additional period~~ extension fee in the amount of ~~three~~ one-half of one percent (30.5%) ~~years per Option~~ of the total commitment amount of the Loan (~~each such period may be referred to as the “Option Term”~~whether disbursed or undisbursed), as determined on the Original Maturity Date. Except as modified by this Option to ~~the entire Premises as it then exists~~Extend, ~~upon and subject to~~ the terms and conditions of this ~~Section (~~Agreement and the ~~“Option To Extend”),~~ other Loan Documents as modified and ~~provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy~~ approved by ~~a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease,~~ Lender shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior to the Expiration Date and no later than the date which is six (6) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment remain unmodified and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate full force and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below)effect. (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Loan Agreement (Regan Holding Corp)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the Extended Term of the Lease for an additional period of ~~three~~ one (31) ~~years per Option~~ year (~~each~~ such period may be referred to as the “Option Term”), as to the entire Premises as it may then ~~exists~~exist, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of ~~each Option~~ such right: (i) Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises; and (ii) Tenant then has a liquid net worth of no less than Forty Million Dollars ($40,000,000.00), and such determination of liquid net worth shall count as assets of Tenant only cash, cash equivalents and liquid investments, and such determination shall be certified by Tenant’s Chief Financial Officer, and supported by Tenant’s financial statements, copies of which shall be delivered to Landlord with Tenant’s written notice exercising its right hereunder. Such supporting financial statements to be delivered to Landlord shall consist of Tenant’s audited financial statements for the most-recent, completed fiscal year, and Tenant’s financial statements for all fiscal quarters completed after the end of the most-recent, completed fiscal year and before the date of Tenant’s Election Notice, with the financial statements for the most-recent, completed quarter certified by Tenant’s Chief Financial Officer. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is ~~twelve~~ six months (126) months ~~prior to~~ before the Expiration Date and no later than the date which is ~~six~~ three (63) months ~~prior to~~ before the Expiration Date. If Tenant either fails or elects not to exercise ~~the~~ its Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void~~, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend~~. (c) The Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B A hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit BA) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business ~~judgment and in accordance with Exhibit B attached hereto~~judgment. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (fg) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below).A. (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) This Option to Extend is personal to Maxygen, Inc. and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any person or entity except an assignee of the Lease which is a Tenant Affiliate and has satisfied the requirements of Article Ten of the Lease applicable to a Tenant Affiliate. (g) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, ~~whereupon~~ with the effect of canceling and voiding any prior or subsequent exercise of so this Option to Extend ~~shall be~~ is of no force or effect: (i) Tenant’s failure to timely exercise ~~or timely to perform~~ the Option to Extend in ~~strict~~ accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend ~~or at the commencement~~ of ~~the Option Term of a Default~~ any default on the part of Tenant under the ~~Lease~~Lease or of any state of facts which with the passage of time or the giving of notice, or both, would constitute such a default. (iii) Tenant’s third ~~Default~~ default under the Lease prior to the ~~commencement of~~ time Tenant exercises the Option ~~Term~~to Extend, notwithstanding that all such ~~Defaults~~ defaults may subsequently be cured. (gh) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Lease (Maxygen Inc)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the Term of the Lease for an additional period of ~~three~~ five (35) years ~~per Option~~ (~~each~~ such period may be referred to as the “Option Term”), as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of such option (and each Option, if more than one Option is granted): (i) Tenant must be conducting regular, active, ongoing business in, and be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by ~~Tenant, other than pursuant to the Maxygen Sublease,~~ Tenant shall not satisfy such condition) of ~~more than 75% of the Rentable Area of~~ the entire Premises.; and (ii) there has been no material adverse change in Tenant’s financial position from such position as of the date of execution of the Lease, as certified by Tenant’s independent certified public accountants, and as supported by Tenant’s certified financial statements, copies of which shall be delivered to Landlord with Tenant’s written notice exercising its right hereunder. Without limiting the generality of the foregoing, Landlord may reasonably conclude there has been a material adverse change if Tenant’s independent certified public accountants do not certify there has been no such change. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is ~~twelve~~ fifteen (1215) months prior to the Expiration Date and no later than the date which is ~~six~~ twelve (612) months prior to the Expiration ~~Date~~Date (the “Exercise Window”). If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B D hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise.. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit BD) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business ~~judgment and in accordance with Exhibit B attached hereto~~judgment. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. D. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ~~ninety-five percent (95%) of~~ the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ~~ninety-five percent (95%) of~~ the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below).. (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect:: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section.. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the ~~Lease.~~Lease or of any state of facts which with the passage of time or the giving of notice, or both, would constitute such a Default. (iii) Tenant’s third Default under the Lease ~~prior to~~ during the ~~commencement of~~ thirty-six (36) month period immediately preceding the ~~Option Term~~Exercise Window, notwithstanding that all such Defaults may subsequently be cured.. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section.. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) Metromile and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any ~~other~~ person or ~~entity~~entity other than a Permitted Transferee which is an assignee of the Lease and which has satisfied the requirements of Sections 10.01 and 10.05 of this Lease. ~~In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.~~

Appears in 1 contract

Samples: Office Lease (Lemonade, Inc.)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the Term of the Lease for an additional period of ~~three~~ five (35) years ~~per Option~~ (~~each~~ such period may be referred to as the “Option Term”), as to the entire ~~Premises as it then exists~~Premises, excluding the 701 Galveston Expansion Space (if leased pursuant to the 000 Xxxxxxxxx Expansion Option) for which a different lease term and extension option shall apply, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of such option (and each Option, if more than one Option is granted): (i) Tenant or a Permitted Transferee which has satisfied the requirements of Sections 10.01 and 10.05 of the Lease must be conducting regular, active, ongoing business in, and be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by ~~Tenant, other than pursuant to the Maxygen Sublease,~~ Tenant shall not satisfy such condition) of ~~more than 75% of the Rentable Area of~~ the entire Premises; and (ii) there has been no material adverse change in Tenant’s financial position from such position as of the date of execution of the Lease, as certified by Tenant’s independent certified public accountants, and as supported by Tenant’s certified financial statements, copies of which shall be delivered to Landlord with Tenant’s written notice exercising its right hereunder. Without limiting the generality of the foregoing, Landlord may reasonably conclude there has been a material adverse change if Tenant’s independent certified public accountants do not certify there has been no such change. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing ~~no earlier than~~ during the ~~date which is~~ period starting twelve (12) months ~~prior to~~ before and ending nine (9) months before the scheduled Expiration Date ~~and no later than~~ of the ~~date which is six (6) months prior to the Expiration Date~~initial Term. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the initial Premises and Expansion Space during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security ~~Deposit~~ shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security ~~Deposit~~ was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security ~~Deposit~~ be decreased; and (iii) Tenant shall accept the initial Premises and Expansion Space in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the initial Premises and Expansion Space or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B F hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the ~~Premises~~initial Premises and Expansion Space, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Initial Premises and Expansion Space and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit BF) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business ~~judgment and in accordance with Exhibit B attached hereto~~judgment. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the ~~Premises~~initial Premises and Expansion Space. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. F. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ~~ninety-five percent (95%) of~~ the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ~~ninety-five percent (95%) of~~ the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the ~~Lease~~Lease or of any state of facts which with the passage of time or the giving of notice, or both, would constitute such a Default. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) Genomic and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any ~~other~~ person or ~~entity. In all events~~entity other than a Permitted Transferee which is an assignee of the Lease and which has satisfied the requirements of Sections 10.01 and 10.05 of this Lease, ~~this Option~~ and such Permitted Transferee may exercise the right without Tenant joining in or consenting to ~~Extend shall at any time be exercisable by~~such exercise, ~~accrue~~ and notwithstanding anything to the ~~benefit of~~ contrary, Tenant shall remain liable for all obligations under the Lease, including those resulting from any such exercise with the same force and ~~be personal to no more than only a single person or entity~~effect as if Tenant had joined in such exercise.

Appears in 1 contract

Samples: Lease Agreement (Genomic Health Inc)

Option to Extend. ~~(a) Landlord hereby grants~~ Provided Tenant ~~two (2) consecutive options (individually an “Option”~~ is not in default under the terms of this Lease after all applicable grace and ~~collectively~~ cure periods, at the ~~“Options”)~~ time it gives notice of its intent to exercise its option and at the time the new extended Term begins, and provided Tenant is not in default beyond the applicable cure period on more than one occasion between the notice and the time the new extended Term begins, Tenant shall have the right to extend the Initial Term ~~of the Lease~~ for ~~an additional period of~~ three (3) ~~years per Option~~ additional five (~~each such period may be referred to~~ 5) year periods ("Extended Term(s)"). "Term", as used herein, shall also include the ~~“Option Term”~~Initial Term and Extended Term(s), ~~as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section~~ if exercised. Tenant shall provide Landlord not less than ten (the “Option To Extend”), and provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (1210) months written notice prior to the ~~Expiration Date and no later than the date which is six (6) months prior to the Expiration Date. If Tenant either fails or elects not~~ first day of said Extended Term of its intent to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each ~~Option~~ option for an Extended Term~~, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease~~. ~~Tenant’s leasing of the Premises during the Option~~ Rent for each Extended Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent calculated at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of fair market rent for comparable space, including applicable tenant improvement allowances, rent escalations, rent concessions or rent abatements, then being offered in similar type buildings in the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amountsAlbuquerque market, but such ~~amounts~~ fair market rent for comparable space shall ~~not be counted~~ exclude real property taxes as ~~part of~~ long as the ~~Preceding Rent or the Fair Market Rental Rate as used herein~~IRB is in place. ~~Further, in~~ In the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant cannot agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute upon rent for an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Extended Term, ~~to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect:~~ within three (i3) ~~Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time~~ months after Tenant exercises the ~~Option~~ option therefor, each party shall select one (1) experienced commercial agent/broker familiar with comparable properties in the Albuquerque area ("Commercial Broker"). Each party shall provide written notice to ~~Extend or at~~ the ~~commencement~~ other party within thirty (30) days after the impasse of said party's designated Commercial Broker and the two (2) Commercial Brokers shall select a third Commercial Broker (the "Third Commercial Broker") within fifteen (15) days after selection of the ~~Option Term of a Default on the part of Tenant under the Lease.~~ other two (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.2)

Appears in 1 contract

Samples: Lease Agreement (SBS Technologies Inc)

Option to Extend. ~~(a)~~ Landlord ~~hereby~~ grants Tenant ~~two~~ an option (~~2) consecutive options (individually an~~ the “Option~~” and collectively the “Options~~”) to extend the ~~Term~~ term of the Lease for an two (2) additional ~~period~~ terms of ~~three~~ ten (310) years ~~per Option~~ (each ~~such period may be referred to as the~~ an “Option Term” or collectively “Option Terms”)~~, as~~ . The Option applies only to the ~~entire Premises~~ Premises, the Existing Garage, Existing Spaces and Parking Facility (as ~~it then exists, upon~~ these terms are defined below) and ~~subject to~~ is on the ~~terms and conditions~~ following conditions: 1.1 Notice of this Section (the “Option To Extend”), and provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s ~~election (~~interest in exercising the ~~“Election Notice”) to exercise the~~ respective Option ~~To Extend~~ must be given to Landlord ~~in writing~~ no ~~earlier~~ later than ~~the date which is~~ twelve (12) months prior to the Expiration Date of the Term (“Tenant’s Notice”). Unless Landlord is timely notified by Tenant in accordance with this subparagraph A, it will be conclusively deemed that Tenant has not exercised the Option and ~~no later~~ the Lease will expire in accordance with its terms on the Expiration Date of the Term, or the initial Option Term as, applicable. 1.2 As to the first Option Term, in Tenant’s Notice Tenant shall have a right to identify the Premises to be applicable during the Option Term as either (i) the entirety of the rentable square feet of the Building or (ii) (1) a portion of the Premises consisting of less than all of the ~~date~~ Premises but containing at least two (2) or more contiguous full floors with such floors being selected in accordance with foregoing at the sole discretion of Tenant; and (2) the entirety of rentable square feet then leased by Tenant on any one floor which is ~~six (6) months prior~~ less than a full floor but is otherwise contiguous to the ~~Expiration Date~~two (2) full floors specified above (which can occur only in the event Landlord and Tenant have previously agreed in writing to a reduction of the Premises). In the event Tenant does not elect the entirety of the Premises, the parking rights as to the Existing Garage, Existing Spaces and Parking Facility (as those terms are defined below) shall be proportionately reduced such that Tenant will be entitled to four and one half (4.5) Parking Spaces per 1,000 rentable square feet of the Premises. (a) If Tenant’s Notice is as to the entire rentable square feet of the Premises or contiguous full floors, Tenant shall be deemed to have exercised the respective Option upon delivery of Tenant’s Notice. 1.3 As to the second Option Term, in Tenant’s Notice Tenant shall have a right to identify the Premises to be applicable during the second Option Term as either ~~fails~~ (i) the entirety of the Premises leased during the first Option Term (the “Option Term Premises”) or ~~elects not~~ (ii) (1) a portion of the Option Term Premises consisting of less than all of the Option Term Premises but containing at least two (2) contiguous full floors, with all space being on contiguous floors with such floors being selected in accordance with foregoing at the sole discretion of Tenant; and (2) the entirety of rentable square feet then leased by Tenant on any one floor which is less than a full floor but is otherwise contiguous to the two (2) full floors specified above (which can occur only in the event Landlord and Tenant have previously agreed in writing to a reduction of the Premises). (a) If Tenant’s Notice is as to the entire rentable square feet of the Option Term Premises or contiguous full floors, Tenant shall be deemed to have exercised the respective Option upon delivery of Tenant’s Notice. 1.4 Unless expressly waived by Landlord, Tenant’s right to exercise the Option ~~to Extend by~~ is conditioned on there not ~~timely giving its Election Notice, then~~ being an uncured Event of Default as of the time of exercise or commencement of the Option Term. Tenant’s rights pursuant to ~~Extend~~ this paragraph are personal to the entity which is Tenant under the Lease at such time as Tenant exercises the Option. 1.5 All the provisions of the Lease shall be ~~null and void, including, if more than one Option is granted, the then~~ fully applicable ~~Option to Extend and all further Options to Extend. (c) The Option Term (and each~~ during any Option Term, ~~if more than one Option is granted~~except that (i) ~~shall commence immediately after the expiration~~ any provisions of the ~~preceding Term~~ Lease that are conditioned on Tenant leasing all of the ~~Lease. Tenant’s leasing~~ rentable square feet of the Building or a specified minimum square feet shall govern based on the size of the Premises during the respective Option ~~Term shall be upon~~ Term, including provisions regarding the provision of Services, control of management of the Building, contracting for utilities and ~~subject to~~ the ~~same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection~~calculation of Operating Expenses; (ii) Tenant shall not be entitled to any Tenant Allowance; (iii) if the ~~Security Deposit shall be increased to an amount that is~~ Premises during the ~~same percentage or proportion of~~ respective Option Term ~~Rent~~ are less than the entire Premises previously leased, Tenant shall surrender the balance of the Premises at the end of the current Term or Option Term, as applicable, in the ~~prior amount~~ condition required in accordance with the Lease (including the fixtures in such space that remain the property of ~~Security Deposit was~~ Landlord); (iv) if any partial floor is to included in ~~relation to Rent for~~ the ~~Term prior to~~ Premises during the Option Term, ~~but in no event shall the Security Deposit be decreased; and (iii)~~ Tenant shall ~~accept~~ complete Alterations, at Tenant sole cost and expense, required to separately demise the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and partial floor in accordance with ~~Exhibit B attached hereto. Within forty-five~~ Applicable Laws (~~45) days after Tenant’s exercise~~ including demising walls and construction of common corridors required for use of the ~~Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen~~ floor on a multi-tenant basis); (15v) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate parking rights shall be determined in accordance with ~~the terms of Exhibit B. Notwithstanding any~~ Section 4 of the ~~foregoing to the contrary~~Addendum; and (vi), at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, ~~using the base year for calculation~~ per Section 7 of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall ~~continue to~~ pay ~~such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further,~~ for Operating Expenses in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for accordance with Exhibit C during the Option Term, in addition to Base Rent to be determined in accordance with the following table: 1st Option TermPeriod Net Rent Annually Per RSF Monthly Base RentPer RSF* Months 1-12 $#### $#### Months 13-24 $#### $#### Months 25-36 $#### $#### Months 37-48 $#### $#### Months 49-60 $#### $#### Months 61-72 $#### $#### Months 73-84 $#### $#### Months 85-96 $#### $#### Months 97-108 $#### $#### Months 109-120 $#### $#### 2nd Option TermPeriod Net Rent Annually Per RSF Monthly Base RentPer RSF* Months 1-12 $#### $#### Months 13-24 $#### $#### Months 25-36 $#### $#### Months 37-48 $#### $#### Months 49-60 $#### $#### Months 61-72 $#### $#### Months 73-84 $#### $#### Months 85-96 $#### $#### Months 97-108 $#### $#### Months 109-120 $#### $#### *If and to the extent Tenant elects the addition of the Parking Facility is applicable in accordance with Section 4 of the Addendum. The Base Rent for each month of the Option Terms shall ~~not be entitled~~ include the Net Rent set forth above plus additional Parking Facility Net Rent attributable to ~~dispute or contest such determination~~the Parking Facilities, ~~and the extension shall be effective and binding (~~which is subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term adjustment in accordance with the terms and conditions of ~~this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form~~ Section 4 of the ~~proposed amendment and Landlord shall execute it promptly after Tenant~~Addendum. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension The estimate in this table is based on estimated costs for the ~~Option Term in accordance with the terms and conditions of this Option to Extend~~Parking Garage option. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section 1.6 After exercise with respect to the last Option ~~to Extend~~Term, ~~whereupon any prior~~ or ~~subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s~~ failure to ~~timely~~ exercise ~~or timely to perform~~ the Option as to ~~Extend in strict accordance with the provisions of this Section. (ii) The existence at the time~~ any Option Term, Tenant ~~exercises the Option~~ shall have no further rights to ~~Extend or at the commencement of the Option Term of a Default on the part of Tenant under~~ extend the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Lease Agreement (Tw Telecom Inc.)

Option to Extend. If, (a) The Tenant pays the Rent (including Minimum Rent and Additional Rent) as and when due and punctually observes and performs the terms, covenants and conditions to be observed and performed by it in accordance with the terms of the Lease; (b) The Tenant is not in default under the Lease; (c) The Tenant gives the Landlord ~~hereby grants Tenant two~~ not less than Nine (29) ~~consecutive options~~ months and not more than Eighteen (~~individually an “Option” and collectively~~ 18) months written notice prior to the ~~“Options”)~~ expiration of the Term of this Lease of the Tenant’s intention to extend the Term of the Lease for an additional period of three (3) years per Option (each such period may be referred to as the “Option Term”), as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior to the Expiration Date and no later than the date which is six (6) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise.and (d) ~~The Option Term Rent shall mean~~ So long as the ~~sum of the Monthly Base Rent at the Fair Market Rental Rate (as~~ Tenant is Eloqua Corporation or a permitted Transferee, defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: as: (i) ~~accepting Landlord’s determination~~A holding body corporate, ~~in which case~~ a subsidiary body corporate or affiliated body corporate (as those terms are defined as of the ~~extension shall be effective and binding (subject~~ date of this Offer pursuant to ~~Subsection (f~~The Canada Business Corporations Act) ~~below) at~~ of the ~~accepted rate; or~~ Tenant; (ii) ~~setting forth~~ A corporation formed as a result of a merger or amalgamation involving the Tenant with another corporation or corporations; or (iii) A purchaser, whether by acquisition of shares or assets, of all or a majority of the Tenant’s ~~good faith estimate,~~ business and/or assets. and itself in ~~which case Landlord~~ occupation and ~~Tenant will promptly confer and attempt to agree upon~~ conducting business in the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined Leased Premises in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, the Tenant ~~shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event~~ expressly acknowledging and agreeing that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this ~~Section with respect~~ section are personal to the ~~Option~~ Tenant or a permitted Transferee, then the Landlord will grant to ~~Extend, whereupon any prior or subsequent exercise~~ the Tenant the right to extend the Term of this ~~Option to Extend shall be~~ Lease upon the expiry of ~~no force or effect~~the initial Term for a period of Five (5) years (the “Extended Term”) upon the same terms and conditions as set out in the Lease except that: (i) The Landlord may at its option require the Tenant to enter into an Extension Agreement, as prepared by the Landlord at the Tenant’s ~~failure~~ expense to ~~timely exercise or timely~~ give effect to ~~perform~~ the ~~Option to Extend in strict accordance with the provisions of this Section.~~Extended Term; and (ii) The ~~existence at the time Tenant exercises the Option to Extend or at the commencement~~ Minimum Rent payable during each year of the ~~Option~~ Extended Term ~~of a Default~~ shall be based on the ~~part of Tenant under~~ fair market rent, all economic factors considered, for comparable premises (including comparable leasehold improvements), in comparable buildings, in the ~~Lease.~~ same neighbourhood, Nine (~~iii~~9) ~~Tenant’s third Default under the Lease~~ months prior to ~~the commencement~~ expiration of the ~~Option~~ Term. For the purpose of this clause 555 and 000 Xxxxxxxx Xxxxxx Xxxx are deemed to be comparable buildings. Failing agreement as to the fair market rent, ~~notwithstanding that all~~ such ~~Defaults may subsequently~~ rent shall be ~~cured. (g) Without limiting~~ determined by an arbitrator agreed on by the ~~generality of any provision~~ parties both acting reasonably, such arbitrator employing baseball style/final offer arbirtration whereby each party submits a final offer and the arbitrator selects one of the ~~Lease, time shall~~ two offers to which the parties will be ~~of the essence with respect to all of the provisions of this Section~~bound. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Lease Agreement (Eloqua, Inc.)

Appears in 1 contract

Samples: Lease (Ap Pharma Inc /De/)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the initial Term of the Lease for an additional period of ~~three~~ one (31) ~~years per Option~~ year (~~each~~ such period may be referred to as the “Option Term”), as to the entire Premises as it may then ~~exists~~exist, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of ~~each Option~~ such right: (i) Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises; (ii) so long as Landlord hereunder is also the landlord under that certain lease to Tenant of all of Building 7 (515 Galveston Drive), Tenant then has all of Building 7 under lease from Landlord, Tenant is in occupancy of all of Building 7 and Tenant has duly exercised the option to extend such lease in accordance with its terms; and (iii) Tenant then has a liquid net worth of no less than Seventy-five Million Dollars ($75,000,000.00), and such determination of liquid net worth shall count as assets of Tenant only cash, cash equivalents and liquid investments, and such determination shall be certified by Tenant’s Chief Financial Officer, and supported by Tenant’s financial statements, copies of which shall be delivered to Landlord with Tenant’s written notice exercising its right hereunder. Such supporting financial statements to be delivered to Landlord shall consist of Tenant’s audited financial statements for the most-recent, completed fiscal year, and Tenant’s financial statements for all fiscal quarters completed after the end of the most-recent, completed fiscal year and before the date of Tenant’s Election Notice, with the financial statements for the most-recent, completed quarter certified by Tenant’s Chief Financial Officer. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is ~~twelve~~ nine months (129) months ~~prior to~~ before the Expiration Date and no later than the date which is six (6) months ~~prior to~~ before the Expiration Date. If Tenant either fails or elects not to exercise ~~the~~ its Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void~~, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend~~. (c) The Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the ~~preceding~~ initial Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) ~~Tenant shall pay~~ the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Monthly Base Rent for the ~~Term prior~~ Premises hereunder shall increase to a monthly rate equal to One and 6/100 Dollars ($1.06) per square foot of Rentable Area of the Premises for the Option Term, ~~but in no event~~ and Tenant shall continue to pay Tenant’s Share of Operating Expenses pursuant to the ~~Security Deposit~~ Lease (along with all expenses paid directly by Tenant to the utility or service provider, which direct payments shall continue to be ~~decreased~~Tenant’s obligation); ~~and~~ (~~iii~~ii) Tenant shall accept the Premises in its “~~as is~~AS-IS” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor~~, except~~ ; and (iii) there shall be no further option or right to extend the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination term of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commencesLease. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the ~~preceding~~ initial Term as extended by the Option Term unless the context clearly requires otherwise. (d) ~~The~~ This Option ~~Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable~~to Extend is personal to Maxygen, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate Inc. and ~~Option Term Rent shall~~ may not be ~~made by Landlord~~used by, ~~in the good faith exercise of Landlord’s business judgment~~ and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be ~~counted as part~~ transferable or assignable (voluntarily or involuntarily) to any person or entity except an assignee of the ~~Preceding Rent or~~ Lease which is a Tenant Affiliate and has satisfied the ~~Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%)~~ requirements of Article Ten of the ~~Preceding Rent, such determination shall be conclusive and binding~~ Lease applicable to ~~set the Preceding Rent as the Option Term Rent for the Option Term,~~ a Tenant ~~shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below)~~Affiliate. (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, ~~whereupon~~ with the effect of canceling and voiding any prior or subsequent exercise of so this Option to Extend ~~shall be~~ is of no force or effect: (i) Tenant’s failure to timely exercise ~~or timely to perform~~ the Option to Extend in ~~strict~~ accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend ~~or at the commencement~~ of ~~the Option Term of a Default~~ any default on the part of Tenant under the ~~Lease~~Lease or of any state of facts which with the passage of time or the giving of notice, or both, would constitute such a default. (iii) Tenant’s third ~~Default~~ default under the Lease prior to the ~~commencement of~~ time Tenant exercises the Option ~~Term~~to Extend, notwithstanding that all such ~~Defaults~~ defaults may subsequently be cured. (gf) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Lease Agreement (Maxygen Inc)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the Term of the Lease for an additional period of ~~three~~ five (35) years ~~per Option~~ (~~each~~ such period may be referred to as the “"Option Term”"), as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “"Option To Extend”"), and provided that at the time of exercise of such option (and each Option, if more than one Option is granted): (i) Tenant or a Permitted Transferee which has satisfied the requirements of Sections 10.01 and 10.05 of the Lease must be conducting regular, active, ongoing business in, and be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by ~~Tenant, other than pursuant to the Maxygen Sublease,~~ Tenant shall not satisfy such condition) of ~~more than 75% of the Rentable Area of~~ the entire Premises; and (ii) there has been no material adverse change in Tenant's financial position from such position as of the date of execution of the Lease, as certified by Tenant's independent certified public accountants, and as supported by Tenant's certified financial statements, copies of which shall be delivered to Landlord with Tenant's written notice exercising its right hereunder. Without limiting the generality of the foregoing, Landlord may reasonably conclude there has been a material adverse change if Tenant's independent certified public accountants do not certify there has been no such change. (b) Tenant’s 's election (the “"Election Notice”") to exercise the Option To Extend must be given to Landlord in writing ~~no earlier than~~ during the ~~date which is~~ period starting twelve (12) months ~~prior to~~ before and ending nine (9) months before the scheduled Expiration Date ~~and no later than~~ of the ~~date which is six (6) months prior to the Expiration Date~~initial Term. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s 's leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “"Option Term Rent”", defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security ~~Deposit~~ shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security ~~Deposit~~ was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security ~~Deposit~~ be decreased; and (iii) Tenant shall accept the Premises in its “"as is” " condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B F hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit BF) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s 's business ~~judgment and in accordance with Exhibit B attached hereto~~judgment. Within forty-five (45) days after Tenant’s 's exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s 's determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s 's determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s 's good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s 's failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s 's receipt of Tenant’s 's estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. F. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ~~ninety-five percent (95%) of~~ the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ~~ninety-five percent (95%) of~~ the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s 's failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the ~~Lease~~Lease or of any state of facts which with the passage of time or the giving of notice, or both, would constitute such a Default. (iii) Tenant’s 's third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to ~~Perseid (or~~Genomic, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any ~~other~~ person or ~~entity. In all events~~entity other than a Permitted Transferee which is an assignee of the Lease and which has satisfied the requirements of Sections 10.01 and 10.05 of this Lease, ~~this Option~~ and such Permitted Transferee may exercise the right without Tenant joining in or consenting to ~~Extend shall at any time be exercisable by~~such exercise, ~~accrue~~ and notwithstanding anything to the ~~benefit of~~ contrary, Tenant shall remain liable for all obligations under the Lease, including those resulting from any such exercise with the same force and ~~be personal to no more than only a single person or entity~~effect as if Tenant had joined in such exercise.

Appears in 1 contract

Samples: Lease Agreement (Genomic Health Inc)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to further extend the Term of the Lease for an additional period of ~~three~~ four (34) years ~~per Option~~ (~~each~~ such period may be referred to as the “"Option Term”"), as to the entire Premises as it may then ~~exists~~exist, upon and subject to the terms and conditions of this Section (the “"Option To Extend”"), and provided that at the time of exercise of ~~each Option~~ such right: (i) Tenant must be in occupancy of at least fifty percent (50%) of the Premises; and ~~occupancy by a subtenant~~(ii) there has been no material adverse change in Tenant's financial position from such position as of the date of execution of this Amendment, ~~licensee or other party permitted or suffered~~ as certified by Tenant's independent certified public accountants, ~~other than pursuant~~ and as supported by Tenant's certified financial statements, copies of which shall be delivered to ~~the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises~~Landlord with Tenant's written notice exercising its right hereunder. (b) Tenant’s 's election (the “"Election Notice”") to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is ~~twelve~~ eighteen (1218) months ~~prior to~~ before the Expiration Date of the Extended Term and no later than the date which is ~~six~~ twelve (612) months ~~prior to~~ before the Expiration ~~Date~~Date of the Extended Term. If Tenant either fails or elects not to exercise ~~the~~ its Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void~~, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend~~. (c) The Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the ~~preceding Term of the Lease~~Extended Term. Tenant’s 's leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except ~~that~~ that: (i) ~~Tenant~~ the Monthly Base Rent shall ~~pay~~ be amended to an amount to equal the “"Option Term Rent”", defined and determined in the manner set forth in the immediately following ~~Subsection~~Subsection (and otherwise, Tenant shall continue to pay Tenant's proportionate share of "operating expenses" and other charges pursuant to the Lease and Tenant shall continue to pay directly the utility or service provider for all utilities or services which Tenant is to obtain directly pursuant to other provisions of the Lease, collectively, "Triple Net Payables"); (ii) the Security Deposit shall be ~~increased~~ increased, if applicable, to ~~an amount that is~~ equal one hundred percent (100%) of the ~~same percentage or proportion~~ highest monthly installment of the Option Term Rent as (the ~~prior amount~~ increase, if any, shall be payable upon the commencement date of ~~Security Deposit was in relation to Rent for the Term prior to~~ the Option Term), but in no event shall the Security Deposit be decreased; ~~and~~ (iii) Tenant shall accept the Premises in its ~~“as is”~~ "AS-IS" condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor~~, except~~ ; and (iv) there shall be no further option or right to extend the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination term of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commencesLease. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the ~~preceding~~ Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the ~~sum~~ greater of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Extended Term ~~preceding~~ ("Preceding Rent") or (ii) the ~~Option Term plus the Rent Adjustments payable by Tenant under the Lease~~ "Prevailing Market Rent" (~~if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding~~ defined below). During the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay Triple Net Payables (as defined in the preceding Subsection), and such ~~amounts~~Triple Net Payables shall be taken into account in determining, but ~~such amounts~~ shall be additional to and not ~~be counted as part of~~ included in, the Preceding Rent or ~~the Fair Market Rental Rate~~ Prevailing Rent, as such terms are used herein. ~~Further~~As used herein, "Prevailing Market Rent" shall mean the base rent and all other monetary payments and escalations, including consumer price increases, payable by a tenant, excluding Triple Net Payables (provided however, Prevailing Market Rent shall be determined taking into account an obligation to pay such Triple Net Payables, so, for example, any comparable transaction with so-called gross rent shall be adjusted to be equivalent to the base rent and payments which would be payable if such tenant was obligated to pay Triple Net Payables as Tenant does), that Landlord could obtain from a third party desiring to lease the Premises on an AS IS basis (without further improvements, but otherwise in surrender condition in accordance with the Lease) for a term equal to the Option Term and commencing when the Option Term is to commence under market leasing conditions, and taking into account the following by comparison between the Premises and the other space or between the proposed transactions: the size, location and floor levels; the type and quality of tenant improvements; the age and location of the project; quality of construction of the project; services to be provided by Landlord or by tenant; the rent, all other monetary payments and escalations obtainable for new leases of space comparable to the Premises in Phase II of Seaport Center and in comparable buildings in the mid-Peninsula area, and other factors that would be relevant to such a third party in determining what such party would be willing to pay therefor, provided, however, that Prevailing Market Rent shall include an adjustment for so-called free rent, if any, applicable after substantial completion of any tenant improvements, but shall not be reduced or adjusted for "Tenant Concessions" (as defined below), if any, being offered to prospective new tenants of comparable space. For purposes of the preceding sentence, the term "Tenant Concessions" shall include, without limitation, tenant improvement allowances and work, moving allowances, and lease takeovers. The determination of Prevailing Market Rent based upon the foregoing criteria shall be made by Landlord, in the ~~event that Landlord notifies Tenant that~~ good faith exercise of Landlord's business judgment. Within thirty (30) days after Tenant's exercise of the Option ~~Term Rent~~ To Extend, Landlord shall ~~equal ninety-five percent (95%)~~ notify Tenant of ~~the Preceding Rent, such~~ Landlord's determination ~~shall be conclusive and binding to set the Preceding Rent as the~~ of Option Term Rent for the ~~Option Term~~Premises. If Landlord's determination of Prevailing Market Rent is greater than the Preceding Rent, and if Tenant, in Tenant's sole discretion, disagrees with the amount of Prevailing Market Rent determined by Landlord, Tenant ~~shall not be entitled~~ may elect to ~~dispute or contest such determination,~~ revoke and rescind the ~~extension shall be effective and binding~~ exercise of the option by giving written notice thereof to Landlord within ninety (~~subject to Subsection (f~~90) ~~below). (e) Promptly~~ days after ~~final~~ notice of Landlord's determination of ~~the Fair~~ Prevailing Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to ExtendRent. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Lease (Genelabs Technologies Inc /Ca)

Option to Extend. (a) Landlord hereby grants Tenant two (2) consecutive options (individually an “Option” and collectively the “Options”) to extend the initial Term of the Lease for an additional period of ~~three~~ six (36) ~~years~~ months per Option (~~each~~ such period may be referred to as the “Option Term”), as to the entire Premises as it may then ~~exists~~exist, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of each ~~Option~~ option: (i) Tenant must be in continuous operation at and in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises; and (ii) there has been no material adverse change in Tenant’s financial position from such position as of the date of execution of the Lease, as certified by Tenant’s independent certified public accountants, and as supported by Tenant’s certified financial statements, copies of which shall be delivered to Landlord with Tenant’s written notice exercising its option hereunder. Without limiting the generality of the foregoing, Landlord may reasonably conclude there has been a material adverse change if Tenant’s independent certified public accountants do not certify there has been no such change. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be in writing and given to ~~Landlord in writing~~ Landlord: (i) to exercise the first Option, no earlier than the date which is ~~twelve~~ nine (129) months prior ~~to the Expiration Date~~ to, and no later than the date which is six (6) months prior to to, the Expiration ~~Date~~Date of the initial Term; and (ii) to exercise the second Option, no earlier than the date which is three (3) months prior to, and no later than the date which is, the Expiration Date of the initial Term. If Tenant either fails or elects not to exercise the then applicable Option to Extend by not timely giving its Election Notice, then ~~the~~ such Option to Extend shall be null and void. Further, ~~including,~~ the second Option shall be null and void if ~~more than one~~ the first Option is ~~granted~~not validly exercised or is waived, ~~the then applicable Option to Extend and all further Options to Extend~~revoked or terminated as provided below after any exercise. (c) ~~The~~ Each Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the preceding initial Term ~~of the Lease~~or Option Term, as applicable. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except ~~that~~ that: (i) for the first Option Term the Monthly Base Rent shall increase to a monthly rate equal to One and 10/100 Dollars ($1.10) per square foot of Rentable Area of the Premises and for the second Option Term shall increase to a monthly rate equal to One and 15/100 Dollars ($1.15) per square foot of Rentable Area of the Premises (and otherwise, during each Option Term Tenant shall continue to pay Rent Adjustments, all other Rent and all other charges pursuant to the ~~“Option Term Rent”, defined~~ Lease and ~~determined in~~ Tenant shall continue to pay directly the ~~manner set forth in~~ utility or service provider for all utilities or services which Tenant is to obtain directly pursuant to other provisions of the ~~immediately following Subsection~~Lease); (ii) the Security Deposit shall be increased ~~to an amount that is~~ no later than thirty (30) days before the ~~same percentage~~ Expiration Date of the initial Term or ~~proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the~~ first Option Term, ~~but in no event shall~~ as applicable, to equal two hundred percent (200%) of the ~~Security~~ sum of the Monthly Base Rent and monthly Rent Adjustment Deposit ~~be decreased~~payable for the following Option Term; and (iii) Tenant shall accept the Premises in its “~~as is~~AS-IS” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the ~~preceding~~ initial Term as extended by the applicable Option Term unless the context clearly requires otherwise. (d) ~~The~~ This Option ~~Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable~~to Extend is personal to Genitope and may not be used by, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be ~~counted as part of the Preceding Rent~~ transferable or ~~the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent~~ assignable (~~95%~~voluntarily or involuntarily) ~~of the Preceding Rent, such determination shall be conclusive and binding~~ to ~~set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute~~ any person or ~~contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below)~~entity. (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, ~~whereupon~~ with the effect of canceling and voiding any prior or subsequent exercise of so this Option to Extend ~~shall be~~ is of no force or effect: (i) Tenant’s failure to timely exercise ~~or timely to perform~~ the Option to Extend in ~~strict~~ accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of ~~a Default~~ any default on the part of Tenant under the ~~Lease~~Lease or of any state of facts which with the passage of time or the giving of notice, or both, would constitute such a default. (iii) Tenant’s third ~~Default~~ default under the Lease prior to the commencement of the Option Term, notwithstanding that all such ~~Defaults~~ defaults may subsequently be cured. (gf) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Lease Agreement (Genitope Corp)

Option to Extend. Provided that (ai) ~~Landlord hereby grants~~ Tenant ~~two~~ has not sublet any portion of the Premises, and (2ii) ~~consecutive options (individually an “Option” and collectively~~ no monetary Default or material non-monetary Default by Tenant exists at the ~~“Options”) to extend~~ time of exercise or at the time of commencement of the Extended Term, the Term of ~~the~~ this Lease shall be subject to one (1) extension option for an additional period of ~~three~~ sixty (360) ~~years per Option~~ months (~~each such period may be referred to as~~ the “~~Option~~ Extension Option”), commencing as of the expiration of the Initial Term, and expiring on the date that is sixty (60) full calendar months thereafter (the “Extended Term”), exercisable as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises.follows: (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior to the Expiration Date and no later than the date which is six (6) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c1) The Extension Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon ~~and subject to~~ the same material terms and conditions contained in ~~the Lease~~ this Lease, except that (i) ~~Tenant~~ the initial Monthly Base Rent for the Premises shall ~~pay~~ be equal to the ~~“Option Term Rent”, defined and~~ fair market rent for the Premises determined in the manner set forth in ~~the immediately following Subsection;~~ Section 2.2(b)(3) below, (ii) on each anniversary of the ~~Security Deposit shall be increased to an amount that is~~ commencement date of the ~~same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option~~ Extended Term, ~~but in no event~~ the Monthly Base Rent shall ~~the Security Deposit be decreased;~~ increase three and one-half percent (3½%), on a cumulative basis, and (iii) Tenant shall accept the Premises in ~~its~~ an “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided(subject, however, ~~Landlord by notice~~ to the terms of Section 8.1 of the Lease). (2) Tenant’s election to exercise the Extension Option must be given to ~~Tenant within~~ Landlord in writing no less than three hundred and sixty-five (365) days prior to the expiration of the Initial Term (the “Extension Notice”). Within thirty (30) days ~~after final~~ of Landlord’s receipt of the Extension Notice, Landlord shall send Tenant written notice of Landlord’s good faith determination of the Fair Market ~~Rental Rate~~Rent for the Premises (the “Fair Market Rent Notice”). For purposes of this Section, ~~may elect to provide~~the term “Fair Market Rent” shall mean the base rental rate, periodic rental rate adjustment and other charges and increases, if any, for space comparable in ~~lieu of such allowance for alterations to the Premises~~size, ~~a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only~~ location and quality to the Premises under a primary lease (and ~~due starting after~~ not sublease) to new or renewing tenants, for a comparable term with a tenant improvement allowance, if applicable and taking into consideration such ~~rent obligation commences~~amenities as existing improvements, view, floor on which the Premises are situated and the like, situated in buildings in Berkeley and Emeryville, California. ~~If Tenant timely and properly exercises the Option To Extend, references in the Lease~~ Notwithstanding anything to the ~~Term~~ contrary contained herein, the Extension Option shall automatically terminate and be ~~deemed to mean~~ of no further force or effect, whether or not Tenant has timely exercised the ~~preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent~~ Extension Option, if a monetary Default or material non-monetary Default exists at the ~~Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation~~ time of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Extension Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) or at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation time of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the ~~Option~~ Extended Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Office/Laboratory Lease (Caribou Biosciences, Inc.)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the initial Term of the Lease for an additional period of three (3) years ~~per Option~~ (~~each~~ such period may be referred to as the “"Option Term”"), as to the entire Premises as it may then ~~exists~~exist, upon and subject to the terms and conditions of this Section (the “"Option To Extend”"), and provided that at the time of exercise of ~~each Option~~ such right: (i) Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises; and (ii) there has been no material adverse change in Tenant's financial position from such position as of the date of execution of the Lease, as certified by Tenants independent certified public accountants, and as supported by Tenant's certified financial statements, copies of which shall be delivered to Landlord with Tenant's written notice exercising its right hereunder. (b) Tenant’s 's election (the “"Election Notice”") to exercise the Option To to Extend must be given to Landlord in writing no earlier than the date which is twelve months (12) months ~~prior to~~ before the Expiration Date and no later than the date which is ~~six~~ nine (69) months ~~prior to~~ before the Expiration Date. If Tenant either fails or elects not to exercise ~~the~~ its Option to Extend by not timely giving its ~~Election~~ election Notice, then the Option to Extend shall be null and void~~, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend~~. (c) The Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the ~~preceding~~ initial Term of the Lease. Tenant’s 's leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) the Monthly Base Rent, plus payment of Tenant's Share of Operating Expenses pursuant to the Lease (in addition to all expenses paid directly by Tenant to the utility or service provider, which direct payments shall ~~pay~~ continue to be Tenant's obligation) shall be amended to equal the “"Option Term Rent”", defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security ~~Deposit~~ Deposit, if any, shall be increased within fifteen (15) days after the Prevailing Market Rent has been determined to ~~an amount that is~~ equal one hundred percent (100%) of the ~~same percentage or proportion~~ highest monthly installment of ~~Option Term~~ Monthly Base Rent ~~as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term~~thereunder, but in no event shall ~~the~~ the. Security Deposit be decreased; ~~and~~ (iii) Tenant shall accept the Premises in its ~~“as is”~~ "AS-IS" condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor~~, except~~ ; and (iv) there shall be no further option or right to extend the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination term of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commencesLease. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the ~~preceding~~ initial Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the ~~sum~~ greater of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the ~~Term preceding the Option Term~~ initial Term, plus ~~the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation~~ payment of ~~Base~~ Tenant's Share of Operating Expenses ~~applicable for the last full month of the Term preceding the Option Term), plus other charges~~ pursuant to the Lease ~~payable~~ (in addition to ~~Landlord. To the extent that~~ all expenses paid directly by Tenant ~~pays directly~~ to the utility or service ~~provider for utilities or services~~ provider, which ~~Tenant is to obtain directly pursuant to the Lease, Tenant~~ direct payments shall continue to ~~pay such amounts~~be Tenant's obligation) (collectively, ~~but such amounts~~ "Preceding Rent") or (ii) the "Prevailing Market Rent". As used in this Rider Prevailing Market Rent shall ~~not be counted as part~~ mean the rent and all other monetary payments, escalations and triple net payables by Tenant, including consumer price increases, that Landlord could obtain from a third party desiring to lease the Premises for a term equal to the Option Term and commencing when the Option Term is to commence under market leasing conditions, and taking into account the following: the size, location and floor levels of the ~~Preceding~~ Premises; the type and quality of tenant improvements; age and location of the Project; quality of construction of the Project; services to be provided by Landlord or by tenant; the rent, all other monetary payments and escalations obtainable for new leases of space comparable to the Premises in the Project and in comparable buildings in the mid-Peninsula area, and other factors that would be relevant to such a third party in determining what such party would be willing to pay therefor, provided, however, that Prevailing Market Rent shall be determined without reduction or adjustment for "Tenant Concessions" (as defined below), if any, being offered to prospective new tenants of comparable space. For purposes of the ~~Fair~~ preceding sentence, the term "Tenant Concessions" shall include, without limitation, so-called free rent, tenant improvement allowances and work, moving allowances, and lease takeovers. The determination of Prevailing Market ~~Rental Rate as used herein. Further~~Rent based upon the foregoing criteria shall be made by Landlord, in the ~~event that Landlord notifies Tenant that~~ good faith exercise of Landlord's business judgment. Within thirty (30) days after Tenant's exercise of the Option ~~Term Rent~~ To Extend, Landlord shall ~~equal ninety-five percent (95%)~~ notify Tenant of ~~the Preceding Rent, such~~ Landlord's determination ~~shall be conclusive and binding to set the Preceding Rent as the~~ of Option Term Rent for the ~~Option Term~~Premises. If Landlord's determination of Prevailing Market Rent is greater than the Preceding Rent, and if Tenant, in Tenant's sole discretion, disagrees with the amount of Prevailing Market Rent determined by Landlord, Tenant ~~shall not be entitled~~ may elect to ~~dispute or contest such determination,~~ revoke and rescind the ~~extension shall be effective and binding~~ exercise of the option by giving written notice thereof to Landlord within thirty (~~subject to Subsection (f~~30) ~~below)~~days after notice of Landlord's determination of Prevailing Market Rent. (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this This Option to ~~Extend~~Extend is personal to Maxygen, ~~in the form of an amendment to the Lease~~Inc. and may not be used by, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not ~~affect the validity and effectiveness of the extension~~ be transferable or assignable (voluntarily or involuntarily) to any person or entity except for ~~the Option Term in accordance with the terms and conditions of this Option to Extend~~a Tenant Affiliate. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, ~~whereupon~~ with the effect of canceling and voiding any prior or subsequent exercise of so this Option to Extend ~~shall be~~ is of no force or effect: (i) Tenant’s 's failure to timely exercise ~~or timely to perform~~ the Option to Extend in ~~strict~~ accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of ~~a Default~~ any default on the part of Tenant under the ~~Lease~~Lease or of any state of facts which with the passage of time or the giving of notice, or both, would constitute such a default. (iii) ~~Tenant’s~~ Tenants third ~~Default~~ default under the Lease prior to the commencement of the Option Term, notwithstanding that all such ~~Defaults~~ defaults may subsequently be cured.. In the event of Landlord's termination of the Option to Extend pursuant to this Section, Tenant shall reimburse Landlord for all costs and expenses Landlord incurs in connection with Tenant's exercise of the Option to Extend including, without limitation, costs and expenses with respect to any brokerage (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Lease (Maxygen Inc)

Option to Extend. (a) ~~Landlord hereby grants Tenant two~~ The Borrower may at any time and from time to time request that all or a portion of the Term Loans of any Class (~~2) consecutive options (individually~~ an “~~Option” and collectively the “Options~~Existing Term Loan Class”) be converted to extend the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of such Term Loans (any such Term Loans which have been so converted, “Extended Term Loans”) and to provide for other terms consistent with this Section 2.15. In order to establish any Extended Term Loans, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the ~~Lease for an additional period~~ Lenders of ~~three~~ the applicable Existing Term Loan Class) (3a “Term Loan Extension Request”) ~~years per Option~~ setting forth the proposed terms of the Extended Term Loans to be established, which shall be identical to the Term Loans of the Existing Term Loan Class from which they are to be converted except (~~each such period~~ x) (A) the scheduled final maturity date shall be extended and (B) all or any of the scheduled amortization payments of principal of the Extended Term Loans may be ~~referred~~ delayed to as later dates than the ~~“Option Term”), as~~ scheduled amortization of principal of the Term Loans of such Existing Term Loan Class (with any such delay resulting in a corresponding adjustment to the ~~entire Premises as it then exists, upon and subject~~ scheduled amortization payments reflected in the applicable Joinder Agreement with respect to the ~~terms and conditions~~ Existing Term Loan Class from which such Extended Term Loans were converted, in each case as more particularly set forth in paragraph (d) of this Section ~~(the “Option To Extend”~~2.15 below), (y) (A) the interest margins with respect to the Extended Term Loans may be higher or lower than the interest margins for the Term Loans of such Existing Term Loan Class and/or (B) additional fees may be payable to the Lenders providing such Extended Term Loans in addition to or in lieu of any increased margins contemplated by the preceding clause (A), in each case, to the extent provided in the applicable Extension Amendment and ~~provided that at~~ (z) notwithstanding anything to the ~~time~~ contrary in this Section 2.15 or otherwise, Extended Term Loans may be optionally prepaid prior to the date on which the Existing Term Loan Class from which they were converted is repaid in full. No Lender shall have any obligation to agree to have any of ~~exercise~~ its Term Loans of ~~each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than~~ any Existing Term Loan Class converted into Extended Term Loans pursuant to any Extension Request. Any Extended Term Loans of any Extension Series shall constitute a separate Class of Term Loans from the ~~Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises~~Existing Term Loan Class from which they were converted. (b) ~~Tenant’s election~~ The Borrower may at any time and from time to time request that all or a portion of the Revolving Credit Commitments, any Extended Revolving Credit Commitments and/or any New Revolving Credit Commitments, each existing at the time of such request (each, an “Existing US-DOCS\144294102.18 Revolving Credit Commitment” and any related revolving credit loans thereunder, “Existing Revolving Credit Loans”; each Existing Revolving Credit Commitment and related Existing Revolving Credit Loans together being referred to as an “Existing Revolving Credit Class”) be converted to extend the termination date thereof and the scheduled maturity date(s) of any payment of principal with respect to all or a portion of any principal amount of Loans related to such Existing Revolving Credit Commitments (any such Existing Revolving Credit Commitments which have been so extended, “Extended Revolving Credit Commitments” and any related Loans, “Extended Revolving Credit Loans”) and to provide for other terms consistent with this Section 2.15. In order to establish any Extended Revolving Credit Commitments, the Borrower shall provide a notice to the Administrative Agent (who shall provide a copy of such notice to each of the Lenders of the applicable Class of Existing Revolving Credit Commitments) (a “Revolving Credit Extension Request”) setting forth the proposed terms of the Extended Revolving Credit Commitments to be established, which terms shall be identical to those applicable to the Existing Revolving Credit Commitments from which they are to be extended (the “~~Election Notice~~Specified Existing Revolving Credit Commitment”) except (x) all or any of the final maturity dates of such Extended Revolving Credit Commitments may be delayed to ~~exercise the Option To Extend must be given to Landlord in writing no earlier~~ later dates than the ~~date which is twelve~~ final maturity dates of the Specified Existing Revolving Credit Commitments, (12y) (A) ~~months prior~~ the interest margins with respect to the ~~Expiration Date and no later~~ Extended Revolving Credit Commitments may be higher or lower than the ~~date which is six~~ interest margins for the Specified Existing Revolving Credit Commitments and/or (6B) ~~months prior~~ additional fees may be payable to the ~~Expiration Date. If Tenant either fails~~ Lenders providing such Extended Revolving Credit Commitments in addition to or ~~elects not~~ in lieu of any increased margins contemplated by the preceding clause (A) and (z) the revolving credit commitment fee rate with respect to ~~exercise~~ the ~~Option~~ Extended Revolving Credit Commitments may be higher or lower than the Revolving Credit Commitment Fee Rate for the Specified Existing Revolving Credit Commitment, in each case, to ~~Extend by not timely giving its Election Notice~~the extent provided in the applicable Extension Amendment; provided that, ~~then~~ notwithstanding anything to the ~~Option~~ contrary in this Section 2.15 or otherwise, (1) the borrowing and repayment (other than in connection with a permanent repayment and termination of commitments) of Loans with respect to ~~Extend~~ any Existing Revolving Credit Commitments shall be ~~null~~ made on a pro rata basis with all other Extended Revolving Credit Commitments and ~~void, including, if more than one Option is granted,~~ (2) assignments and participations of Extended Revolving Credit Commitments and Extended Revolving Credit Loans shall be governed by the ~~then~~ same assignment and participation provisions applicable ~~Option~~ to ~~Extend~~ Revolving Credit Commitments and ~~all further Options~~ the Revolving Credit Loans related to ~~Extend~~such Commitments set forth in Section 13.6. Any Extended Revolving Credit Commitments of any Extension Series shall constitute a separate Class of revolving credit commitments from the Specified Existing Revolving Credit Commitments and from any other Existing Revolving Credit Commitments (together with any other Extended Revolving Credit Commitments so established on such date). (c) The ~~Option Term~~ Borrower shall provide the applicable Extension Request at least five (~~and each Option Term, if more than one Option is granted~~5) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term Business Days prior to the ~~Option Term~~date on which Lenders under the applicable Existing Class or Existing Classes are requested to respond. Any Lender (an “Extending Lender”) wishing to have all or a portion of its Term Loans, ~~but~~ Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment, as applicable, of the Existing Class or Existing Classes subject to such Extension Request converted into Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall notify the Administrative Agent (an “Extension Election”) on or prior to the date specified in no such Extension Request of the amount of its Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to such Extension Request that it has elected to convert into Extended Term Loans or Extended Revolving Credit Commitments, as applicable. In the event that the aggregate amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment of the Existing Class or Existing Classes subject to Extension Elections exceeds the amount of Extended Term Loans or Extended Revolving Credit Commitments, as applicable, requested pursuant to the Extension Request, Term Loans or Revolving Credit Commitments, New Revolving Credit Commitments or Extended US-DOCS\144294102.18 Revolving Credit Commitments of the Existing Class or Existing Classes subject to Extension Elections shall be converted to Extended Term Loans or Extended Revolving Credit Commitments, as applicable, on a pro rata basis based on the ~~Security Deposit~~ amount of Term Loans, Revolving Credit Commitments, New Revolving Credit Commitment or Extended Revolving Credit Commitment included in each such Extension Election. Notwithstanding the conversion of any Existing Revolving Credit Commitment into an Extended Revolving Credit Commitment, such Extended Revolving Credit Commitment shall be ~~decreased; and~~ treated identically to all other Revolving Credit Commitments for purposes of the obligations of a Revolving Credit Lender in respect of Letters of Credit under Article 3. Notwithstanding the foregoing, for the avoidance of doubt, the Letter of Credit Commitments shall not be extended unless the prior written consent of the applicable Letter of Credit Issuer is obtained. (~~iii~~d) ~~Tenant~~ Extended Term Loans or Extended Revolving Credit Commitments, as applicable, shall ~~accept the Premises in its~~ be established pursuant to an amendment (an “~~as is” condition without any obligation of Landlord~~ Extension Amendment”) to ~~repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor~~this Agreement (which, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended expressly contemplated by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions penultimate sentence of this Section 2.15(c) and notwithstanding anything to the contrary set forth in Section 13.1, shall not require the consent of any Lender other than the Extending Lenders with respect to the ~~Option~~ Extended Term Loans or Extended Revolving Credit Commitments, as applicable, established thereby) executed by the Credit Parties, the Administrative Agent and the Extending Lenders. No Extension Amendment shall provide for any tranche of Extended Term Loans or Extended Revolving Credit Commitments in an aggregate principal amount that is less than $75,000,000. In addition to ~~Extend~~any terms and changes required or permitted by Section 2.15(a) or Section 2.15(b), ~~whereupon~~ each Extension Amendment (x) shall amend the scheduled amortization payments pursuant the applicable Joinder Agreement with respect to the Existing Term Loan Class from which the Extended Term Loans were converted to reduce each scheduled Repayment Amount for the Existing Term Loan Class in the same proportion as the amount of Term Loans of the Existing Term Loan Class is to be converted pursuant to such Extension Amendment (it being understood that the amount of any ~~prior or subsequent exercise~~ Repayment Amount payable with respect to any individual Term Loan of ~~this Option to Extend~~ such Existing Term Loan Class that is not an Extended Term Loan shall not be ~~of no force or effect:~~ reduced as a result thereof) and (iy) ~~Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance~~ may, but shall not be required to, impose additional requirements (not inconsistent with the provisions of this ~~Section.~~ Agreement in effect at such time) with respect to the final maturity and weighted average life to maturity of New Term Loans incurred following the date of such Extension Amendment. Notwithstanding anything to the contrary in this Section 2.15 and without limiting the generality or applicability of Section 13.1 to any Section 2.15 Additional Amendments (iias defined below), any Extension Amendment may provide for additional terms and/or additional amendments other than those referred to or contemplated above (any such additional amendment, a “Section 2.15 Additional Amendment”) ~~The existence at~~ to this Agreement and the ~~time Tenant exercises~~ other Credit Documents; provided that such Section 2.15 Additional Amendments comply with and do not conflict with the ~~Option to Extend~~ requirements of Section 2.15(a) or ~~at the commencement of the Option Term of a Default on the part of Tenant under the Lease.~~ (~~iii~~b) ~~Tenant’s third Default under the Lease~~ and do not become effective prior to the ~~commencement~~ time that such Section 2.15 Additional Amendments have been consented to (including, without limitation, pursuant to (1) consents applicable to holders of New Term Loans or New Revolving Credit Commitments provided for in any Joinder Agreement and (2) consents applicable to holders of any Extended Term Loans or Extended Revolving Credit Commitments provided for in any Extension Amendment) by such of the ~~Option Term~~Lenders, ~~notwithstanding that all~~ Credit Parties and other parties (if any) as may be required in order for such ~~Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence~~ Section 2.15 Additional Amendments to become effective in accordance with ~~respect to all of the provisions of this~~ Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Credit Agreement (Laureate Education, Inc.)

Option to Extend. (a) ~~Landlord hereby grants~~ Provided Tenant ~~two (2) consecutive options (individually~~ has not become bankrupt or insolvent or has not made an ~~“Option” and collectively~~ assignment for the ~~“Options”)~~ benefit of creditors or has not taken the benefit of any statute in force for bankrupt or insolvent debtors, or a petition in bankruptcy has not been filed against the Tenant or a receiving order has not been made against the Tenant, Primerica Life Insurance Company of Canada or its Permitted Transferee shall have an option to extend the Term of ~~the~~ this Lease for ~~an additional period~~ two (2) further periods of ~~three~~ five (35) years ~~per Option~~ each (each ~~such period may~~ of which shall be herein referred to as ~~the~~ an “~~Option~~ Extension Term”~~), as to~~ ) on the ~~entire Premises as it then exists, upon and subject to the~~ same terms and conditions as contained in this Lease for the initial Term, save and except: (i) there shall be no further right to extend after the expiry of ~~this Section~~ the second Extension Term; (ii) the ~~“Option To Extend”), and provided that~~ Basic Rent for each Extension Term shall be the Market Rent; (iii) parking spaces shall be made available to Tenant at the ~~time of exercise~~ ratios provided for herein for the initial Term and at the rates (if any) then in effect for the Project; (iv) there shall be no tenant’s allowance or rent-free period for either Extension Term; and (v) the Premises shall be accepted by Tenant in “as is” condition at the commencement of each ~~Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant~~ Extension Term without Landlord being required to ~~the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises~~perform any work. (b) Such right to extend shall be exercisable by Tenant~~’s election (~~, provided Tenant is not in receipt of a written notice of default from Landlord or is not then in default for which no notice is required pursuant to the ~~“Election Notice”) to exercise the Option To Extend must be given~~ applicable provisions of this Lease, by delivering written notice to Landlord ~~in writing no~~ by not later than nine (9) months, and not earlier than ~~the date which is~~ twelve (12) ~~months~~ months, prior to the ~~Expiration Date and no later than~~ expiry of the ~~date~~ original Term hereof or the first Extension Term, in respect of the second Extension Term, failing which ~~is six (6) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend~~ such right shall be null and ~~void, including, if more than one Option is granted, the then applicable Option to Extend~~ void and ~~all further Options to Extend~~forever extinguished. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Multi Tenant Office Lease (Primerica, Inc.)

Option to Extend. ~~(a) Landlord hereby grants Tenant two (2) consecutive options (individually an “Option” and collectively~~ Lessee shall have the ~~“Options”)~~ option to extend the Term for a period of five (5) years immediately following the expiration of the ~~Lease for an additional period of three~~ Term (~~3) years per Option (each such period may be referred to as~~ the “~~Option~~ Extended Term”), ~~as to the entire Premises as it then exists, upon~~ on all provisions contained in this Lease (except for Base Rent and ~~subject to the~~ such other terms and conditions as are specifically or by their operation limited to the initial Term only and except that Lessee shall have no further right or option to extend the term upon the expiration of ~~this Section~~ the Extended Term), by giving notice of exercise of the option (the “Option To Extend”), and provided that at the time of exercise of each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election (the “Election Notice”) to ~~exercise~~ Lessor at least nine (9) months but not more than fifteen (15) months before the expiration of the Term; provided, however, that at Lessee’s option, exercisable by written notice contained in the Option ~~To Extend must~~ Notice, the option to extend for the Extended Term pursuant hereto may be ~~given~~ exercised either for the entire Premises or for all of Suites 700 and 800 of the Premises (being all of the Premises exclusive of the portion of the Premises located on the sixth (6th) floor of the Building); provided that in the event Lessee so exercises the option to ~~Landlord~~ extend by the Extended Term for only Suites 700 and 800, then on the commencement of the Extended Term, Lessee shall vacate and surrender the portion of the Premises located on the sixth (6th) floor of the Building in ~~writing~~ the condition required for surrender under this Lease upon the expiration of the Lease Term and any continued occupancy of any of the sixth (6th) floor portion of the Premises by Lessee shall be deemed to constitute an unauthorized holding over thereof by Lessee, subject to the provisions of this Lease governing an unauthorized holding over by Lessee. Lessor’s ability to plan for the orderly transaction of its rental business, to accommodate the needs of other existing and potential tenants, and to enjoy the benefits of increasing rentals at such times as Lessor is able to do so in its sole and absolute discretion, are fundamental elements of Lessor’s willingness to provide Lessee with the option to extend contained herein. Accordingly, Lessee hereby acknowledges that strict compliance with the notification provisions contained herein, and Lessee’s strict compliance with the time period for such notification contained herein, are material elements of the bargained for exchange between Lessor and Lessee and are material elements of Lessee’s consideration paid to Lessor in exchange for the grant of the option. Therefore, Lessee’s failure to adhere strictly and completely to the provisions and time frame contained in this provision shall render the option automatically null, void and of no ~~earlier~~ further force or effect, without notice, acknowledgement, or any action of any nature or sort, required of Lessor. Lessee acknowledges that no other act or notice, other than the ~~date which is twelve (12) months prior~~ express written notice set forth hereinabove, shall act to put Lessor on notice of Lessee’s intent to extend, and Lessee hereby waives any claims to the ~~Expiration Date and no later than~~ contrary, notwithstanding any other actions of Lessee during the Term of this Lease or any statements, written or oral, of Lessee to Lessor to the contrary during the Term of this Lease. Notwithstanding the foregoing, if Lessee is in material default (after the expiration of any applicable period for cure pursuant to Article 22 below) on the date ~~which is six (6) months prior to the Expiration Date. If Tenant either fails or elects not to exercise~~ of giving the Option ~~to Extend by not timely giving its Election~~ Notice, ~~then~~ the Option ~~to Extend~~ Notice shall be totally ineffective, or if Lessee is in material default (after the expiration of any applicable period for cure pursuant to Article 22 below) on the date the Extended Term is to commence, in addition to any and all other remedies available to Lessor under this Lease, at Lessor’s election, the exercise of the option shall be deemed null and void, the Extended Term shall not commence, and this Lease shall expire at the end of the Term. The option to extend granted pursuant hereto is personal to original Lessee signatory to this Lease and cannot be assigned, transferred or conveyed to, or exercised for the benefit of, any other person or entity (voluntarily, involuntarily, by operation of law or otherwise) including, ~~if more than one Option is granted~~without limitation, ~~the then applicable Option~~ to ~~Extend and all further Options~~ any assignee or subtenant permitted under Article 13, except to ~~Extend. (c) The Option Term (and each Option Term, if more than one Option is granted)~~ a Permitted Transferee. All of Lessee’s rights under this Article 3.b. shall ~~commence immediately after~~ terminate upon the expiration of the ~~preceding~~ initial Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions sooner termination of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.

Appears in 1 contract

Samples: Net Office Lease (Borland Software Corp)

Option to Extend. ~~(a) Landlord hereby grants~~ Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”) to extend the Term of the Lease for an additional period of~~ shall have three (3) ~~years per Option~~ options to extend (~~each such period may~~ the ---------------- "Extension Options") the Initial Term for consecutive five (5) year periods (the foregoing option terms shall be referred to hereinafter sometimes as the “"Option Terms"), by delivering a binding written notice of exercise to Landlord ("Extension Notice"), so that Landlord receives the Extension Notice with respect to the first Option Term at least three hundred sixty (360) days prior to the end of the Initial Term and with respect to the second Option Term”, at least three hundred sixty (360) days prior to the end of the first Option Term and with respect to the third Option Term, at least three hundred sixty (360) days prior to the end of the second Option Term. Tenant may exercise the Extension Options only if this Lease is in full force and effect and there is no uncured Event of Default, or any breach of Tenant's obligations under this Lease which with the passage of time or the giving of notice, or both, would constitute an Event of Default if not cured within any applicable cure period (an "Incipient Default"), ~~as to the entire Premises as it then exists, upon and subject to the terms and conditions of this Section (the “Option To Extend”), and provided that~~ at the time of exercise of ~~each Option Tenant must be in occupancy (and occupancy by a subtenant, licensee~~ the right of renewal or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises. (b) Tenant’s election (the “Election Notice”) to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is twelve (12) months prior to the Expiration Date and no later than the date which is six (6) months prior to the Expiration Date. If Tenant either fails or elects not to exercise the Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend. (c) The Option Term (and each Option Term, if more than one Option is granted) shall commence immediately after the expiration of the preceding Term of the Lease. Tenant’s leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) Tenant shall pay the “Option Term Rent”, defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time ~~Tenant exercises the Option to Extend or at the commencement~~ of ~~the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to~~ the commencement of the Option Term, ~~notwithstanding~~ but Landlord shall have the right at its sole discretion to waive the non-default conditions herein; provided, however, that ~~all such Defaults may subsequently be cured. (g) Without limiting~~ if an Event of Default or Incipient Default exists at the ~~generality of any provision~~ time Tenant exercises the Extension Option and Landlord does not elect to waive, Landlord shall provide written notice to Tenant of the existence and nature of such Event of Default or Incipient Default and Tenant shall be allowed an amount of time to cure such Event of Default or Incipient Default as is otherwise provided for curing defaults of that type under this Lease, ~~time~~ and, if timely cured, Tenant's exercise of the Extension Option shall be reinstated effective as of the ~~essence~~ time of exercise. The Initial Term, together with ~~respect~~ any Option Term, are referred to ~~all of~~ in this Lease as the ~~provisions of this Section~~"Term. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity."

Appears in 1 contract

Samples: Lease (Applied Micro Circuits Corp)

Option to Extend. (a) Landlord hereby grants Tenant ~~two (2) consecutive options (individually an “Option” and collectively the “Options”)~~ a single option to extend the Extended Term of the Lease for an additional period of ~~three~~ five (35) years ~~per Option~~ (~~each~~ such period may be referred to as the “"Option Term”"), as to the entire Premises as it may then ~~exists~~exist, upon and subject to the terms and conditions of this Section (the “"Option To Extend”"), and provided that at the time of exercise of ~~each Option~~ such right: (i) Tenant must be in occupancy (and occupancy by a subtenant, licensee or other party permitted or suffered by Tenant, other than pursuant to the Maxygen Sublease, shall not satisfy such condition) of more than 75% of the Rentable Area of the entire Premises; and (ii) there has been no material adverse change in Tenant's financial position from such position as of the date of execution of the Lease, as certified by Tenant's independent certified public accountants, and as supported by Tenant's certified financial statements, copies of which shall be delivered to Landlord with Tenant's written notice exercising its right hereunder. (b) Tenant’s 's election (the “"Election Notice”") to exercise the Option To Extend must be given to Landlord in writing no earlier than the date which is ~~twelve~~ two hundred and seventy (12270) ~~months prior to~~ days before the Expiration Date and no later than the date which is ~~six~~ two hundred and forty (6240) ~~months~~ days prior to the Expiration Date. If Tenant either fails or elects not to exercise ~~the~~ its Option to Extend by not timely giving its Election Notice, then the Option to Extend shall be null and void~~, including, if more than one Option is granted, the then applicable Option to Extend and all further Options to Extend~~. (c) The Option Term ~~(and each Option Term, if more than one Option is granted)~~ shall commence immediately after the expiration of the ~~preceding~~ Extended Term of the Lease. Tenant’s 's leasing of the Premises during the Option Term shall be upon and subject to the same terms and conditions contained in the Lease except that (i) the monthly base rent, plus payment of Tenant's proportionate share of Operating Expenses and Utilities charges pursuant to the Lease (in addition to all expenses paid directly by Tenant to the utility or service provider, which direct payments shall ~~pay~~ continue to be Tenant's obligation) shall be amended to equal the “"Option Term Rent”", defined and determined in the manner set forth in the immediately following Subsection; (ii) the Security Deposit shall be increased to an amount that is the same percentage or proportion of Option Term Rent as the prior amount of Security Deposit was in relation to Rent for the Term prior to the Option Term, but in no event shall the Security Deposit be decreased; and (iii) Tenant shall accept the Premises in its “as is” condition without any obligation of Landlord to repaint, remodel, repair, improve or alter the Premises or to provide Tenant any allowance therefor, except to the extent tenants leasing space in Comparable Transactions receive an allowance pursuant to the definition of Fair Market Rental Rate defined in Exhibit B hereto, provided, however, Landlord by notice given to Tenant within thirty (30) days after final determination of the Fair Market Rental Rate, may elect to provide, in lieu of such allowance for alterations to the Premises, a rent credit equal to the amount of the allowance that would have otherwise been given, credited toward the rents applicable only to the Premises and due starting after such rent obligation commences. If Tenant timely and properly exercises the Option To Extend, references in the Lease to the Term shall be deemed to mean the preceding Term as extended by the Option Term unless the context clearly requires otherwise. (d) The Option Term Rent shall mean the sum of the Monthly Base Rent at the Fair Market Rental Rate (as defined in Exhibit B) plus Rent Adjustments and/or certain Operating Expenses (if applicable, based upon a step-up to change the base year or base amount for calculation of Operating Expenses in connection with determination of the Fair Market Rental Rate) plus other charges pursuant to the Lease payable to Landlord. The determination of Fair Market Rental Rate and Option Term Rent shall be made by Landlord, in the good faith exercise of Landlord’s business judgment and in accordance with Exhibit B attached hereto. Within forty-five (45) days after Tenant’s exercise of the Option To Extend, Landlord shall notify Tenant of Landlord’s determination of the Fair Market Rental Rate and Option Term Rent for the Premises. Tenant may, within fifteen (15) days after receipt thereof, deliver to Landlord a written notice either: (i) accepting Landlord’s determination, in which case the extension shall be effective and binding (subject to Subsection (f) below) at the accepted rate; or (ii) setting forth Tenant’s good faith estimate, in which case Landlord and Tenant will promptly confer and attempt to agree upon the Fair Market Rental Rate and Option Term Rent. Tenant’s failure to timely deliver such notice within such fifteen (15) day period shall be deemed its cancellation of the Option. In the event Tenant has delivered notice setting forth Tenant’s different estimate, but no agreement in writing between Tenant and Landlord on Fair Market Rental Rate and Option Term Rent is reached within thirty (30) days after Landlord’s receipt of Tenant’s estimate, the Fair Market Rental Rate shall be determined in accordance with the terms of Exhibit B. Notwithstanding any of the foregoing to the contrary, at no time during the Option Term shall the Option Term Rent be less than ninety-five percent (95%) of the “Preceding Rent” (defined below). The Preceding Rent shall mean the sum of the Monthly Base Rent payable by Tenant under this Lease calculated at the rate applicable for the last full month of the Term preceding the Option Term plus the Rent Adjustments payable by Tenant under the Lease (if applicable, using the base year for calculation of Base Operating Expenses applicable for the last full month of the Term preceding the Option Term), plus other charges pursuant to the Lease payable to Landlord. To the extent that Tenant pays directly the utility or service provider for utilities or services which Tenant is to obtain directly pursuant to the Lease, Tenant shall continue to pay such amounts, but such amounts shall not be counted as part of the Preceding Rent or the Fair Market Rental Rate as used herein. Further, in the event that Landlord notifies Tenant that the Option Term Rent shall equal ninety-five percent (95%) of the Preceding Rent, such determination shall be conclusive and binding to set the Preceding Rent as the Option Term Rent for the Option Term, Tenant shall not be entitled to dispute or contest such determination, and the extension shall be effective and binding (subject to Subsection (f) below). (e) Promptly after final determination of the Fair Market Rental Rate, Landlord shall prepare a memorandum confirming the specific dates, amounts and terms of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend, in the form of an amendment to the Lease, and Tenant shall execute such amendment within five (5) business days after Landlord and Tenant agree to the form of the proposed amendment and Landlord shall execute it promptly after Tenant. Notwithstanding any of the foregoing to the contrary, the failure of Landlord to prepare such amendment or of either party to execute an amendment shall not affect the validity and effectiveness of the extension for the Option Term in accordance with the terms and conditions of this Option to Extend. (f) Upon the occurrence of any of the following events, Landlord shall have the option, exercisable at any time prior to commencement of the Option Term, to terminate all of the provisions of this Section with respect to the Option to Extend, whereupon any prior or subsequent exercise of this Option to Extend shall be of no force or effect: (i) Tenant’s failure to timely exercise or timely to perform the Option to Extend in strict accordance with the provisions of this Section. (ii) The existence at the time Tenant exercises the Option to Extend or at the commencement of the Option Term of a Default on the part of Tenant under the Lease. (iii) Tenant’s third Default under the Lease prior to the commencement of the Option Term, notwithstanding that all such Defaults may subsequently be cured. (g) Without limiting the generality of any provision of the Lease, time shall be of the essence with respect to all of the provisions of this Section. (h) This Option to Extend is personal to Perseid (or, if applicable, a Tenant Affiliate who has been assigned (or deemed to have been assigned under clause 10.01(d) of the Lease) all of Tenant’s right, title and interest under the Lease in full compliance with Article 10 and all other provisions thereof) and may not be used by, and shall not be transferable or assignable (voluntarily or involuntarily) to any other person or entity. In all events, this Option to Extend shall at any time be exercisable by, accrue to the benefit of and be personal to no more than only a single person or entity.;

Appears in 1 contract

Samples: Industrial Net Lease Agreement (Cygnus Inc /De/)

Common use of Option to Extend Clause in Contracts